Clarke v. Clarke, 166

• Court: North Carolina Supreme Court
• Writing for the Court: MOORE
• Citation: Clarke v. Clarke, 116 S.E.2d 449, 253 N.C. 156 (N.C. 1960)
• Decision Date: 12 October 1960
• Docket Number: No. 166,166
• Parties: Linward A. CLARKE, Executor of the Estate of Maggle M. Clarke, Petitioner, v. Rudolph B. CLARKE et al.

Page 449

116 S.E.2d 449

253 N.C. 156

Linward A. CLARKE, Executor of the Estate of Maggle M Clarke, Petitioner, v. Rudolph B. CLARKE et al.

No. 166

Supreme Court of North Carolina.

Oct. 12, 1960

Nicholas Long, Roanoke Rapids, guardian ad litem for unborn children of Rudolph B. Clarke and Norman M. Clarke, appellant.

J. S. Livermon, Scotland Neck, guardian ad litem for living minor children of Rudolph B. Clarke and living minor children of Norman M. Clarke appellant.

George A. Hux, Enfield, guardian ad litem for Patsy McKay, Rosanne McKay, Charles McKay, Jr., and Freddie McKay, Minors, and Ancillary Admr. of Estate of Cornelius Clarke, appellees.

MOORE, Justice.

'A limitation by * * * will * * * to the heirs of a living person, shall be construed to be to the children of such person, unless a contrary intention appear by the * * * will.' G.S. § 41-6. (Emphasis added). In paragraphs 4 and 5 of the will of Maggie M. Clarke provision is made for the college education of the 'heirs' of testatrix's sons, Norman and Rudolph. These sons were living at the time of the execution of the will and survived the testatrix. There is nothing in the will which indicates that testatrix intended to use the word 'heirs' in its technical sense. Indeed a contrary intent is shown. It is provided in paragraph 7 that Norman and Rudolph are to share in the residue of the bonds after termination of the trust. Therefore testatrix contemplated that they might outlive the trust. Obviously she did not intend by the word 'heirs' to designate beneficiaries of the trust as of the date of the deaths of Norman and Rudolph. Our construction is that the word 'Heirs,' as used in paragraphs 4 and 5, means 'children.' Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404.

As corrected, paragraph 4 reads: 'I give 50% of my war bonds and their accumulation to the children of my son, Norman M. Clarke, to be used for college education only.' This item must be construed to mean that testatrix gave the bonds, to be used for college education, to the children of Norman who were living at the death of the testatrix. '* * (a) legacy given to a class immediately, vests absolutely in the persons composing that class at the death of the testator: for instance, a legacy to the children of A: the children in esse at the death of the testator take estates vested absolutely, and there is no ground upon which children who may be born afterwards can be let in.' Mason v. White, 53 N.C. 421, 422. But where the gift is not immediate and there is an intervening life estate, the rule is otherwise. Ibid., 422. See also Privett v. Jones, 251 N.C. 386, 393, 111 S.E.2d 533; Sawyer v. Toxey, 194 N.C. 341, 343, 139 S.E. 692. The rule quoted above has been consistently adhered to in this jurisdiction. Cole v. Cole, 229 N.C. 757, 760, 51 S.E.2d 491, 6 A.L.R.2d 1335; Sawyer v. Toxey, supra; Wise v. Leonhardt, 128 N.C. 289, 38 S.E. 892; Walker v. Johnston, 70 N.C. 576, 579.

What is ordinarily denominated 'the rule against perpetuities' is 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. Parker v. Parker, 252 N.C. 399, 402-403, 113 S.E.2d 899; McPherson v. First & Citizens Nat. Bank, 240 N.C. 1, 15, 81 S.E.2d 386.

The beneficiaries under the provisions of paragraph 4 were designated and in being at the death of the testatrix. Since the benefits were for their personal enjoyment, their rights thereto must vest, if at all, during their lives. Therefore, the rule against perpetuities has no application here and paragraph 4 is a valid testamentary disposition. What is said here with respect to paragraph 4 is equally applicable to paragraph 5, and it is likewise valid. The beneficiaries in paragraph 5 are the children of Rudolph who were living at the death of testatrix. There is nothing in the will which shows an intention on the part of the testatrix to avoid the quoted rule in the Mason case. 'In our opinion, the testatrix did not intend a disposition of her property which would violate the rule against perpetuities.' Elledge v. Parrish, 224 N.C. 397, 400, 30 S.E.2d 314, 316. The presumption is that the testatrix intended to make a legal and valid disposition of her property. Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, 460, 67 S.E.2d 651.

The factual situation in Parker v. Parker, supra, though somewhat similar to that in the instant case, is distinguishable. In item 6 of the Parker will there was a devise of land to Cheshire J. Parker for life with remainder over at his death to his children. This was a gift to a class, subject to a life estate. The gift vested in those children of Cheshire J. Parker who were living at the death of the testator, subject to open up and make room for his after-born children. In item 7 of the Parker will land was devised to Cheshire J. Parker in trust, the income to be used for college education of children. In item 7, the only designation of beneficiaries is the words 'the children.' Without reference to item 6 there is no way to determine what children or whose children are intended. Therefore, the only permissible inference is that 'the children' are those children referred to in the preceding paragraph. 'The children' in the preceding paragraph included after-born children. This then is one of the differentiating features of the Parker case. It is true that there are also important considerations in Parker as to remoteness of vesting of title which do not arise here. The two cases are significantly different.

In the case at bar the will sets no time or age limitations on the use of the funds by the beneficiaries for college education. 'The court cannot make a will for the...