Martha Andrews Johnson WING and Jane Virginia Andrews Power Philbrick
v.
WACHOVIA BANK & TRUST COMPANY, N.A., Successor Trustee, and Augusta Andrews Young, Julia Marks Dozier, Alexander A. Marks, Laurence H. Marks, Alex B. Andrews, III, Julia Andrews Park, Mary S. Andrews Worth, Graham H. Andrews, Jr., F. M. Simmons Andrews, Augusta Young Murchall, Eleanor Young Booker, Sandra Johnson Walker, Richard T. Dozier, Jr., Jane Dozier Harris, William M. Marks, III, Ralph Stanley Marks, Frances Marks Bruton, Julia Marks Young, Elizabeth Marks Green, Jane Marks Cline, Hal V. Worth, III, Julia Worth Ray, Simmons Holladay Worth, John W. Andrews, Sara Simmons Andrews Johnston and Mary Graham Andrews, Additional Parties, Jessica Anne Murchall Edgmon, Melinda Susan Murchall, John Alexander Murchall, Robert Andrew Booker, Paul Curtis Booker, minor, William Conrad Walker, Jr., minor, James Alexander Walker, minor, Timothy Todd Walker, minor, Sharon Virginia Walker, minor, Anne Gilchrist Dozier, minor, Patricia Jane Dozier, minor, Laura Cromwell Dozier, minor, Julia Marks Harris, Charles Andrew Harris, III, William Mark Harris, minor, William M. Marks, IV, minor, Ann Elva Marks, minor, Ralph Stanley Marks, Jr., minor, Richard Hughes Marks, minor, Alexander Andrews Grant Bruton, minor, Edward MacCauley Bruton, minor, Frances Brinley Bruton, minor, Hal Venable Worth, IV, minor, Kelly Andrews Worth, minor, Fred C. Ray, III, minor, Graham Andrews Ray, minor, Mable Y. Andrews, Sherman Yeargan, Trustee, Howard E. Manning, Trustee, William Henry Clarkson, Jr., Our Lady of Lourdes Catholic Church, John A. McAllister, guardian ad litem.
No. 7710SC204.
Court of Appeals of North Carolina.
February 21, 1978.*399 Vaughn S. Winborne, Raleigh, for plaintiff appellants.
Emanuel & Thompson, by W. Hugh Thompson, Raleigh, for defendant appellant, Alex B. Andrews, III.
Joyner & Howison, by Henry S. Manning, Jr., Raleigh, for Wachovia Bank & Trust Co., N.A., Successor Trustee under the will of A. B. Andrews.
Manning, Fulton & Skinner, by Howard E. Manning, Jr., Raleigh, for defendant appellees.
Maupin, Taylor & Ellis, P. A., by G. Palmer Stacy, III, Raleigh, for defendant appellees.
John A. McAllister, Raleigh, Guardian ad litem for minor defendants and unborn great great nieces and nephews of Alexander B. Andrews and any unknown persons having an interest or claim to the estate of Alexander B. Andrews.
WEBB, Judge.
We hold that Judge Herring was correct in his judgment and should be affirmed.
*400 The rule against perpetuities has been interpreted many times in North Carolina. See Springs v. Hopkins, 171 N.C. 486, 88 S.E. 774 (1916); Trust Co. v. Williamson, 228 N.C. 458, 46 S.E.2d 104 (1948); Mercer v. Mercer, 230 N.C. 101, 52 S.E.2d 229 (1949); Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899 (1960); Poindexter v. Trust Co., 258 N.C. 371, 128 S.E.2d 867 (1962); and Palmer v. Ketner, 29 N.C.App. 187, 223 S.E.2d 913 (1976). Our interpretation of the rule is based on a reading of these cases and the textbooks cited below.
We believe that the courts of this State have adopted the rule as stated by John Chipman Gray as follows:
"No interest is good unless it must vest, if at all, not later than twenty one years after some life in being at the creation of the interest."
Gray, Rule Against Perpetuities § 201 (4th ed.)
Professor Richard R. Powell in his work, Powell on Real Property, Vol. 5, Chap. 71, has a very good discussion of the rule. He points out that the rule against perpetuities is a product of the struggle to preserve the alienability of property.
Professor Powell quotes the rule as stated by John Chipman Gray and criticizes it as not being accurate. He contends for a different statement of the rule and his contention has been adopted in the Restatement of Property as follows:
"Thus the rule against perpetuities promotes alienability by destroying future interests which interfere therewith either by eliminating the power of alienation for too long a time or by lessening the probability of alienation for too long a time. . ."
Restatement of Property § 370, Comment i (1944)
Applying the rule as articulated in this State or as contended for by the Restatement, we believe the result would be the same in this instance.
We shall construe Mr. Andrews' will only to the extent necessary to decide this case. We believe that if the rights of all income beneficiaries under the trust and the rights of all parties in the corpus after the trust has terminated are vested within the permissible period, the limitation does not violate the rule. Examining first the vesting of rights in income beneficiaries, it is apparent that the brothers, sister, nieces and nephews of Mr. Andrews are persons named in the will and alive at his death. The income shifts between them and to great nieces and great nephews, but at the death of the last sister, brother, niece or nephew, the income interest of all of them will be vested. This much complies with the rule.
As to the great nieces and great nephews who share in the income, this class is complete within twenty-one years of the testator's death. We hold that the right to income is indefeasibly vested to each of them at that time subject to increase as brothers, sister, nieces and nephews die. None of the parties have asked for any other interpretation as to income beneficiaries and we believe it is the only proper construction. The right to income of the great nieces and great nephews being vested within the lives of sister, brothers, nieces and nephews, all of whom were named in the will and alive at testator's death, plus the twenty-one years from testator's death in which the great nieces and great nephews class can open vests these income beneficiaries' rights within the permissible period. Thus, all income beneficiaries' interests are vested within the permissible period.
Examining the vesting of the corpus of the trust, we believe there are the following two possibilities: (1) Mr. Andrews did not dispose of the corpus after the termination of the trust and it passed at his death by intestate succession to his heirs at law at that time. If this is the proper construction, the corpus vested at Mr. Andrews' death in his heirs at law at the time of his death, with possession postponed until the trust terminates, which does not violate the rule. (2) The will might also be construed to hold that by implication it gives the corpus of the trust to the great nieces and great nephews or to their estates in the proportion of their income interests *401 at the time of the termination of the trust. If the corpus is vested in great nieces and great nephews or their estates at the time their income rights are completely vested, this would be within the permissible period. It would not matter that their possession of the corpus is postponed during the duration of the trust. Man's ingenuity can no doubt conceive of other interpretations of the will which could postpone the vesting of the corpus to a later time. None were suggested in the briefs or in oral argument and we hold that the corpus must vest under the will in one of the above two ways. We hold that both these ways comply with the rule against perpetuities.
The plaintiffs contend that by paragraph six of the will the trust could extend beyond the permissible period in that its duration could be measured by an after born niece or nephew. In light of our holding that all interests must vest within the permissible period, we do not believe the duration of the trust is controlling. For this reason, we do not pass on this contention of the plaintiffs as to the construction of the will.
We are aware that Mercer v. Mercer, supra, held that a trust must terminate within the permissible period. In McQueen v. Trust Co., supra, the Court distinguished Mercer and in Poindexter v. Trust Co., supra, we believe that Mercer was overruled. Plaintiffs contend that since Mercer was the law at a time that the trust under Mr. Andrews' will was being administered, we cannot now rule that the limitation under his will does not violate the rule. We do not accept this argument. Nowhere in either the McQueen or Poindexter cases do we read that they were to have only prospective effect. We believe they declare the common law of this State as to limitations in instruments now in effect.
In an amendment to its answer, Wachovia Bank & Trust Company, N.A., Successor Trustee under the will, asked for a construction of the will as to the ultimate beneficiaries. The Successor Trustee did not appeal from Judge Herring's ruling dismissing the action, and we do not now make any ruling on this prayer for relief.
Howard E. Manning and William H. Clarkson, Trustees for Our Lady of Lourdes Catholic Church, have pled the statute of limitations, G.S. 1-56, and laches. In light of our opinion in this case, we do not consider these questions.
The judgment of the Superior Court is affirmed.
BRITT and HEDRICK, JJ., concur.