American Trust Co. v. Williamson

Denny, J.

The provisions of the will of William PI. Williamson, Jr., aré not challenged except in so far as the testator in the exercise of the power of appointment "under his father's will, undertook to set up a trust-as to one-half of the funds held in trust by the American Trust Company, Trustee, under the will of William H. Williamson, Sr., for the benefit of his children, William H. Williamson, III, and Mary Martin Williamson, for life and to give them a limited power of appointment as to the disposition of such trust fund.

There is no appeal from that part of the judgment below which in effect holds that the rule against perpetuities relates back to the time the power of appointment was given and not from the date of its exercise, which is in accord with the weight of the authorities.

Roane v. Robinson, 189 N. C., 628 , 127 S. E., 626 ;

White v. White, 189 N. C., 236 , 126 S. E., 612 ;

Chewning v. Mason, 158 N. C., 578 , 74 S. E., 357 ;

Norfleet v. Hawkins, 93 N. C., 392 ; Gray, Rule Against Perpetuities (4th Ed.), Sec. 515, 31 Am. Jur., 857 , 49 C. J., 1305;

In re Harris’ Will, 55 N. Y. S. (2d), 261;

McCreary’s Estate v. Pitts, 354 Pa., 347 , 47 A. (2d), 235;

Equitable Trust Co. v. Snader, 17 Del. Ch., 203 , 151 A., 712 ;

Rutherfurd v. Farrar, 118 S. W. (2d), 79 (Mo.);

Northern Trust Co. v. Porter, 368 Ill., 256 , 13 N. E. (2d), 487. It is, therefore, conceded by all parties to this action that the attempt to limit the power of disposition of any portion of the estate of William H. Williamson, Sr., beyond the lives of William H. Williamson, III, and Mary Martin Williamson, is violative of the rule against perpetuities. Gray, Rule Against Perpe-tuities (4th Ed.), 510, 41 Am. Jur., 69 ;

In re Cassidy’s Estate, 259 N. Y. S., 67;

Graham v. Whiteridge, 99 Md., 248 , 57 A., 609 .

The disposition made by William H. Williamson, Jr., of his own estate as well as the other half of the trust fund held under the provisions of his father's will, is not challenged.

The appellant, however, does challenge the attempt of William H. Williamson, Jr., to include in the trust he established for the benefit of his children for their lives, the one-half of the funds held by the American Trust Company, Trustee, under the will of William H. Williamson, Sr., op .the ground that such trust in so far as it relates to these funds violates the rule against perpetuities.

If the appellant's position is correct, then William H. Williamson, Jr., died intestate as to this one-half of the funds now held by the Ameri *463 can Trust Company, Trustee, under tbe will of William H. Williamson, Sr. Moreover, the will of William H, Williamson, Sr., covers just such a contingency in that it provides that should William H. Williamson, Jr., die intestate, leaving a child or children, then such estate shall.go to said child or children.

Since the power under which William H. Williamson, Jr., undertook to dispose of the residue of his father's estate, dates from the death of the donor of the power, he could not create a valid trust as to any part .of liis father’s estate, that his father could not have created had he so desired. William H. Williamson, III, and Mary Martin Williamson, were not in being at the time of the death of William H. Williamson, Sr. The power given William H. Williamson, Jr., was a limited one. He could dispose of the trust fund by will only. He was in fact no.more than a designated agent with limited power.

Hardee v. Rivers, 228 N. C., 66 , 44 S. E. (2d), 476 . The title to the trust fund created .‘by William H. Williamson, Sr., never vested in William H. Williamson, Jr., he was only given the power to dispose of it by will. Such will, however, in so far as it failed to provide for the vesting of any of these funds, free from the trust, within the time required by the rule against perpetuities, is void. Therefore, upon the facts as disclosed on the record, the latest possible date the Trustee could hold the' corpus of the estate of William H. Williamson, Sr., Would be 21 years after the death of William.H. Williamson, Jr., but under the judgment below no vesting, discharged from the limitations of the trust, can take place until the deaths of William H. Williamson, III, and Mary Martin Williamson, respectively. Such.deaths may or may not occur within 21 years after the. de.ath of William II. Williamson, Jr. A provision whereby title to the corpus of an estate may or may not vest within the time required by the rule against perpetuities does not meet the requirement of the rule. Such title must vest within the time required by the rule in order to be valid.

Hopkinson v. Swaim, 284 Ill., 11 , 119 N. E., 985 ;

Equitable Trust Co. v. Snader, supra; Northern Trust Co. v. Porter, supra.

The rule against perpetuities does not apply to charitable trusts., G. S., 36-21;

Reynolds Foundation v. Trustees of Wake Forest College, 227 N. C., 500 , 42 S. E. (2d), 910 ;

Penick v. Bank, 218 N. C., 686 , 12 S. E. (2d), 253 ;

Williams v. Williams, 215 N. C., 739 , 3 S. E. (2d), 334 . However, the rule does apply to trusts created for private purposes. 41 Am. Jur., 86 . A trust for private purposes must terminate within a life or lives in being and twenty-one years and ten lunar monthá 'thereafter.

Springs v. Hopkins, 171 N. C., 486 , 88 S. E., 774 ;

Billingsley v. Bradley, 166 Md., 412 , 171 A., 351 , 104 A. L. R., 274; Gray, Rule Against Perpetuities (4th Ed.), 191, et seq., 41 Am. Jur., 87 .

The. weight of authority is to the effect that a disposition of property under'a' power of appointment will not be held invalid in toto because *464 some of the provisions thereof may be violative of the rule against per-petuities ; provided, the provisions which are violative of the rule against perpetuities are severable from the valid provisions exercised under the power. 41 Am. Jur., 861 ; 49 C. J., 1300;

Parker v. MacBryde, 132 F.

(2d), 932 (Fourth Circuit);

De Charette v. De Charette, 264 Ky., 525 , 94 S. W. (2d), 1018 ; 104 A. L. R., 1455;

Hopkinson v. Swaim, supra; In re Carter’s Estate, 254 Pa., 565 , 99 A., 79 ;

in re Carroll’s Estate, 280 N. Y. S., 307;

Equitable Trust Co. v. Snader, supra; Liggett v. Fidelity Columbia Trust Co., 274 Ky., 387 , 118 S. W. (2d), 720 . In the instant case the provisions which are violative of the rule against perpetuities are severable from the valid provisions exercised under the power.

Hence, we hold that the attempt of 'William H. Williamson, Jr., to include in the trust for his children, any portion of the proceeds of the estate of William H. Williamson, Sr., which purported to require such funds to be held in trust for his children during their lives, is void in so far as it relates to such funds; and that the guardian of William H. Williamson, III, and Mary Martin Williamson is entitled to receive from the American Trust Company, Trustee, under the will of William H. Williamson, Sr., one-half of the funds of such estate, as the property of the aforesaid minors, free and clear of any restraints or other limitations.

The judgment of the court below, except as herein modified, is affirmed.

Modified and affirmed.

SohbNCk, J., took no part in the consideration or decision of this ease.