MacRae v. Commerce Union Trust Co.

Stacy, C. J. The determinative question is whether the interests created by the limitations in the deed of settlement to the feme plaintiff’s children or remoter issue are vested or contingent. We think they are contingent. It is provided by C. S., 996, as amended by chapter 305, Public Laws 1929, inter 'alia, that any grantor, maker or trustor who has heretofore created or may hereafter create a voluntary trust estate in real or personal property for the benefit of himself, or any other person in esse, with a future contingent interest to some person or persons not in esse, or not determinable until the happening of a future event, may, at any timó prior to the happening of the contingency vesting the future estates, revoke the grant of the interest to such person or persons not in esse, or not determinable, by a proper instrument to that effect; provided in case the instrument creating such estate has been recorded, the deed of revocation shall likewise be recorded to make it effective. To bring a case within the- terms of this statute, it should appear: Ei-rst,_that the trust is a voluntary one; second, that it was created for *717 the benefit of the trustor, or some person in esse, with a future contingent interest limited to some person not in esse, or not determinable until tbe happening of a future event; and, third, that if the instrument creating the trust has been recorded, the deed of revocation has likewise been recorded. Stanback v. Bank, 197 N. C., 292, 148 S. E., 313. It is not seriously questioned but that the trust created by the present deed of settlement is a voluntary one. The feme plaintiff was in no way obligated, under her father’s will, to keep her share of his estate in trust. Her right to receive it became absolute upon her marriage. The approval of the English Court of Chancery was apparently for the protection of the English trustees. The instrument was executed without consideration. That the interests of the feme plaintiff’s children are contingent, rather than vested, will appear, we think, from the following provisions in the trust deed: “4. After the death of the wife the trustee shall stand possessed of the capital and income of the trust fund upon trust to assign, transfer, pay over and deliver the trust fund to all or such one or more exclusively of the others or other of them of the children or remoter issue of the wife . ... at such age or times ... as the wife shall, by any deed or deeds revocable or irrevocable or by will or codicil appoint and in default of and subject to any such appointment upon trust to assign, transfer, pay over and deliver the trust fund to all or any of the children or child of the wife . . . who being male attain the age of twenty-one years or being female attain that age or marry under it and if more than one in equal shares. . . . “6. The trustee shall after the death of the wife apply the whole or such part as they in their discretion shall think fit of the income of the share in the trust fund to which any child or remoter issue of the wife shall for the time being be entitled in expectancy . . . towards his or her maintenance, education or benefit. . . . “7. During such suspense of absolute vesting as aforesaid the trustee shall accumulate the surplus (if any) of the income,” etc. It will be observed that the feme plaintiff is not limited in the exercise of the power of appointment to her children, but these she may exclude altogether, and name some remoter issue; and should she die without exercising the power of appointment, none of her children could presently take the property under the above limitations. Therefore, tested by the criterion of present capacity to take effect in possession, should the possession for any cause become vacant, the interests, of feme plaintiff’s children would seem to be contingent rather than vested. Ziegler v. Love, 185 N. C., 40, 115 S. E., 887; 23 R. C. L., 502; *718 Tbe plaintiffs bave duly executed a deed of revocation and tendered tbe- same to tbe trustee. Tbus it would seem, witb tbe trust a voluntary one and tbe ultimate beneficiaries taking a future contingent interest and tbe execution, of a proper instrument revoking tbe trust, tbat the plaintiffs are entitled to tbe benefit of tbe statute. Stanback v. Bank, supra. It is further suggested tbat. as tbe trust agreement was executed in North Carolina, witb all those interested therein residents of this State, tbe rights of tbe parties are to be determined by tbe lex loci contractus (31. C. J., 1001); and as tbe feme plaintiff was an infant at. tbe time of tbe execution of tbe agreement, under our lawy she is at liberty to disaffirm the same. McCormick v. Crotts, 198 N. C., 664; Collins v. Norfleet-Baggs, 197 N. C., 659, 150 S. E., 177. Blit with tbe bolding tbat .the .instrument in question comes within tbe puryiew of C. S., 996, as amended, it seems unnecessary to rely upon this additional circumstance, though it may be advanced in support of tbe judgment. • Affirmed.