Landrum v. National City Bank of Rome
| Decision Date | 08 February 1954 |
| Docket Number | No. 18476,18476 |
| Citation | 80 S.E.2d 300,210 Ga. 316 |
| Parties | LANDRUM et al. v. NATIONAL CITY BANK OF ROME et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The provision in the will of the deceased here under consideration violates the rule against perpetuities. Code, § 85-707.
2. The judgment of the court below regarding the income from the trust estate and the final disposition of the trust estate was not erroneous for any reason assigned.
National City Bank of Rome, Georgia, as executor and trustee under the will of William O. Weems, deceased, brought its petition against certain named persons who were legatees and possible legatees under the will of the deceased, seeking a construction of said will. The particular provision which it was sought to have construed reads as follows:
The two controlling issues which the court below was called upon a settle, and which this court is to settle under this bill of exceptions, were: First, does the abovequoted provision in the will of William O. Weems violate the rule against perpetuities, Code, § 85-707. Secondly, if the abovequoted provision does violate the rule against perpetuities, how shall the income be distributed, and what shall be the final disposition of the trust estate?
No question as to the facts or as to the correctness of the parties was presented, since it was agreed before the judge in the court below that the statement of facts in the pleadings and the parties were correct.
The court below decided that the abovequoted provision in the will of William O. Weems, deceased, violated the rule against perpetuities, Code, § 85-707; and that the limitations to the great-nieces and nephews were too remote and therefore illegal and void. The court below then ordered the trustee to pay the income from the trust to the three sisters of the deceased for and during their lifetime, said income to be distributed and paid to the living sisters pro rata until the death of the last surviving sister, and that at that time, the trustee should pay over the entire corpus of the trust estate to the nieces of the deceased in fee simple, representatives of deceased nieces to take per stirpes. The exception here is to this judgment.
Graham & Glover, Rome, for plaintiffs in error.
Parker, Clary & Kent, Wright, Rogers, Magruder & Hoyt, George Anderson, Rome, for defendants in error.
1. The first question presented by this bill of exceptions is whether or not the provisions in the will of William O. Weems, deceased, quoted in the statement of facts violate the rule against perpetuities, Code, § 85-707, which provides as follows:
The limitations in the instant case commenced at the death of the testator. The question then is whether or not at that time there was a possibility that the limitations in the will would extend beyond the period permitted by Code, § 85-707. The limitations in the instant case were that the income from the trust estate was to be paid to the three sisters of the deceased. At the time of the testator's death, these three sisters were in life, and there was no possibility that any unborn sister would share in the income, since the gift of income was limited to 'my three sisters,' who had been previously identified in the will.
The will then continued, 'at their deaths I desire said income to be paid to my nieces in equal parts and the trust held intact as long as anyone of them is living and 21 years thereafter.' This limitation constitutes a gift to a class, the class composed of the nieces of the testator. Johns v. Citizens & Southern National Bank, 206 Ga. 313, 57 S.E.2d 182; Toucher v. Hawkins, 158 Ga. 482, 123 S.E. 618. Under this limitation, the nieces of the testator living at the time of his death take a vested interest, subject to open and let in any additional nieces born during the existence of the preceding trust, or, in other words, during the life of the three sisters of the deceased or the survivor of them. Milner v. Gay, 145 Ga. 858, 90 S.E. 65; Leach v. Stephens, 159 Ga. 193, 125, S.E. 192; Lumpkin v. Patterson, 170 Ga. 94, 152 S.E. 448; and Walters v. Suarez, 188 Ga. 190, 3 S.E.2d 575. Therefore, since there were living sisters of the deceased at the time the limitation commenced, and since the presumption of fertility is conclusive, Williams v. Frierson, 150 Ga. 797, 105 S.E. 475, there was a possibility at the time the trust began that the class 'nieces' would open and let in unborn nieces; that unborn nieces would share in the income from the trust; and that the trust would extend through the lives of such nieces, or through a life or a number of lives not in being at the time the limitations became effective. The result naturally follows that, since there was a possibility that the limitations contained in the will of the...
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