Wing v. Wachovia Bank & Trust Co., N.A.

• Decision Date: 21 February 1978
• Docket Number: No. 7710SC204,7710SC204
• Citation: 241 S.E.2d 397,35 N.C.App. 346
• Court: North Carolina Court of Appeals
• Parties: 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.

Page 397

241 S.E.2d 397

35 N.C.App. 346

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.

Feb. 21, 1978.

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.

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 sis...