NORTH CAROLINA NATIONAL BANK, Executor of the Will of Thomas A. Norris, Jr.
v.
Thomas A. NORRIS, III, et al., a minor.
No. 7410SC224.
Court of Appeals of North Carolina.
April 3, 1974.*658 Lassiter & Walker by James H. Walker, Raleigh, for plaintiff-appellee.
Walton K. Joyner, Raleigh, Guardian Ad Litem, for defendant-appellant.
PARKER, Judge.
The common-law rule against perpetuities has been long recognized and enforced in this jurisdiction, and its application has the continuing sanction of Article I, Section 34 of our State Constitution. This rule, which is "not one of construction but a positive mandate of law to be obeyed irrespective of the question of intention," Mercer v. Mercer, 230 N.C. 101, 52 S.E.2d *659 229, has been stated by our Supreme Court as follows:
"No devise or grant of a future interest in property is valid unless the title thereto must vest, if at all, not later than twenty-one years, plus the period of gestation, after some life or lives in being at the time of the creation of the interest. If there is a possibility such future interest may not vest within the time prescribed, the gift or grant is void." Clarke v. Clarke, 253 N.C. 156, 161, 116 S.E.2d 449, 452.
The devise which B. F. Montague attempted to make in Item Fourth of his will to his great-grandchildren of the remainder interest after the termination of the successive life estates granted to his widow, his daughters, and his grandchildren, clearly violated the rule. As of the date of the testator's death, which in case of wills is the time at which the validity of the limitation is to be ascertained, the possibility existed, at least insofar as the law views the matter, that one or more children might thereafter be born to one or more of Montague's three surviving daughters. Had this occurred, the life estates which he provided for his grandchildren might well have extended and postponed vesting of the remainder in his great-grandchildren to a date beyond the time prescribed by the rule. It is the possibility, not the actuality, of such an occurrence which renders the grant void. See: Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899; Annotation, "Remainder to Great-Grandchildren," 18 A.L.R. 2d 671. As stated by the author of the last cited Annotation (at p. 673), "it should be noted that a remainder to great-grandchildren whose vesting is not limited upon termination of a secondary life estate in a named grandchild, but upon the death of all the creator's grandchildren as a class, is invalid, since other grandchildren might be born after the creation of the future interests and postpone the vesting of the remainder beyond the permitted period."
Appellant here acknowledges the possibility that a grandchild or grandchildren might have been born after Montague's death with the result that vesting of at least portions of the remainder might have been postponed beyond the period permitted by the rule, but seeks to invoke the so-called "Doctrine of Separability" to save the devise to the great-grandchildren in the present case. That doctrine has been stated by the author of the last-cited Annotation as follows:
"While a class gift may not be split and is either good or bad in toto, it has been held that where a creator makes a gift of remainder to his great-grandchildren following life estates successively in his children and grandchildren in such a manner as to constitute separate and distinct devises or bequests to different classes, which take effect at different times, upon the respective death of the life tenants, and the number of classes or shares is definitely fixed within the period of the rule, although not until after the creator's death, the question of remoteness is to be considered with reference to each share separately." Annotation, 18 A.L.R. 2d 671, 680.
For further discussion and analysis of the Doctrine of Separability by other authorities, see: "Perpetuities in a Nutshell," 51 Harvard Law Review 638; Simes and Smith, The Law of Future Interests (2d Ed.) Sec. 1267; Tiffany, Real Property (3d Ed. 1970) Sec. 183.
As we read Item Fourth of Montague's will, however, we find the doctrine of separability simply not applicable in the present case. Montague did not devise life estate successively to his children and grandchildren "in such a manner as to constitute separate and distinct devises or bequests to different classes, which take effect at different times, upon the respective death of the life tenants." (Emphasis added.) Quite to the contrary, he devised all of the property described in Item Fourth of his will, first to his wife for life, then to his three daughters for life and at the death of any of them to the survivors or survivor for life, then, upon the death of the last to survive of his daughters, and *660 still dealing with all of his estate, "to the child or children" of his daughters "for and during the natural life or lives of such child or children" (his grandchild or grandchildren), and finally, and still dealing with one property interest, "with remainder over to the lawful issue of such grandchild or grandchildren forever." In default of such issue, "the remainder" is devised to Peace Institute. All the way through the testator dealt with only one remainder to take effect at one time. Though he obviously contemplated the possibility that he might have more than one grandchild, he did not provide any "separate and distinct" devise of separate portions of the remainder interest to the issue of each grandchild to take effect at different times upon the respective death of each grandchild. Nothing in his will indicates any intention that each of his grandchildren should have a separate life estate in a separate share and that each such separate share should vest separately at the death of such grandchild in such grandchild's issue.
The judgment appealed from is
Affirmed.
BRITT and VAUGHN, JJ., concur.