Coble v. Patterson , 114 N.C. App. 447 ( 1994 )

442 S.E.2d 119 (1994) 114 N.C. App. 447

Notie J. COBLE, Executrix of the Estate of Ross Coble and Notie J. Coble, Individually, Plaintiff,
v.
Kathleen C. PATTERSON, Agnes C. White, Helen C. Byers, Rebecca C. Robertson, Cornelia C. Stanton, Larry M. Patterson, T. Michael Patterson, Bobby White, Janet Grizzle, Penny Sue Simon, and Kay Stanton Combs, Defendants.

No. 9315SC319.

Court of Appeals of North Carolina.

April 19, 1994.

Charles L. Bateman, P.A. by Charles L. Bateman and Linda J. Hartwell, Burlington, for plaintiff-appellee.

Frederick J. Sternberg, P.A. by Frederick J. Sternberg, and Latham, Wood, Hawkins & Whited by B.F. Wood and G. Keith Whited, Graham, for defendants-appellants.

EAGLES, Judge.

Defendants bring forward two assignments of error. After careful review of the record and briefs, we affirm the trial court's judgment declaring plaintiff the fee simple owner of the Albright Township property. We reverse the trial court's judgment declaring that the interests created in Item 8 of decedent's will violated the Rule Against Perpetuities.

I.

Defendants first contend that the trial court erred in declaring plaintiff the fee simple owner of the Albright Township property. We disagree. Item 2 of decedent's will states, "I have 7 acres in Albright Township goes [sic] to my wife Notie J. Coble." Under G.S. 31-38, any devise of real property is presumed to be a devise in fee simple unless the plain and express words of the devise or other language in the will itself clearly shows the testator's intent to convey a lesser estate. G.S. 31-38; Leonard v. Dillard, 87 N.C.App. 79, 82, 359 S.E.2d 497, 499 (1987). Defendants contend that decedent intended to convey plaintiff a life estate because in Item 7 defendant provided that:

If my wife, Notie J. Coble should predecease me or at her death, I bequeath that the seven (7) acres I own in Albright township and the land I received form [sic] my mother Mattie T. Coble goes to my five sisters, Kathleen C. Patterson, Agnes C. White, Helen C. Byers, Rebecca C. Robertson, and Cornelia C. Stanton. Should any of these sister [sic] predecease me or at my wife, Notie J. Coble death there [sic] share goes to their children....

We disagree.

[I]t is a general rule of testamentary construction that an unrestricted devise of real estate carries the fee, and a subsequent clause in the will expressing a wish, desire or even direction for the disposition of what remains at the death of the devisee, is not allowed to defeat the devise, nor limit it to a life estate.

Taylor v. Taylor, 228 N.C. 275, 277, 45 S.E.2d 368, 369 (1947); See also Quickel v. Quickel, 261 N.C. 696, 698, 136 S.E.2d 52, 54 (1964); Leonard v. Dillard 87 N.C.App. 79, 82, 359 S.E.2d 497, 499 (1987). Under this rule of construction, decedent's unrestricted devise of the Albright Township property to plaintiff in Item 2 was a devise in fee simple and the later devise of the property to defendants in Item 7 did not limit plaintiff's estate to a life estate.

Defendants contend, however, that this rule of construction must "yield to the paramount intent of the testator as gathered from the four corners of the will." Taylor v. Taylor, supra. Defendants contend that decedent's paramount intent as gathered from the entire will was to make plaintiff the lifetime beneficiary of a testamentary trust. Defendants argue that decedent intended for his entire estate to be put into a trust for plaintiff for her lifetime and that upon her death, the trust corpus would be distributed to defendants. Defendants argue that decedent's intention of making plaintiff the lifetime beneficiary of a testamentary trust explains why decedent gave certain property to plaintiff in Items 2 and 5 and then made repeated giftovers of the same property to defendants in Items 6 through 10 with the condition "If my wife, Notie J. Coble should predecease me or at her death."

The trial court found that decedent's intent as gathered from each and every item of the will was "to provide materially both real and personal property for his wife, to control or limit the further disposition of certain real property the testator devised in Item 7 to his sisters and their children, and to direct the disposition of his wife's property at her death." We conclude that decedent's will does not plainly reflect an unambiguous intention to establish a testamentary trust for plaintiff sufficiently to rebut the statutory presumption in G.S. 31-38 that an unrestricted devise of real property is a devise in fee simple. Accordingly, we hold that plaintiff is the fee simple owner of the Albright Township property.

II.

Defendants also contend that the trial court erred in concluding that the interests created in Item 8 of decedent's will violated the Rule Against Perpetuities. We agree and conclude that the devise in Item 8 conveys the property to defendants in fee.

The Rule Against Perpetuities provides that:

[N]o devise or grant of a future interest in property is valid unless title thereto must vest, if at all, not less 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.

McQueen v. Trust Co., 234 N.C. 737, 741, 68 S.E.2d 831, 835 (1951). Items 5 and 8 of decedent's will concern the same property and provide as follows:

Item 5: If I have any money or certificates left after expenses, Indowment [sic] fund & church are taken care of the rest goes in certificates to draw interest for my wife Notie J. Coble to help pay taxes on the farm & for her personal upkeep.

Item 8: If my wife, Notie J. Coble should predecease me or at her death, I bequeath that the money and certificates left after all expenses, endowment & church are taken care of the rest of the money or certificates be kept in certificates to take the interest and keep taxes paid on the land that I left my sisters. If any left over after taxes are paid to be divided equally among my sister and their children.

The trial court made the following conclusion of law regarding the interest created by Item 8:

e) Item 8 creates a future interest in the interest income from the certificates which the testator states are to be kept in certificates "to take interest & keep taxes paid on the land that I left my sisters." In that item, the testator does not name remaindermen as to the principal, nor does he state a point in time at which the principal is to be divided, but devises a perpetual fund, interest income in perpetuity to pay the taxes on the land he left his sisters and their children forever and ever. There is no vesting of a complete interest in this property—interest and principal. Either interest could vest beyond the period of the Rule Against Perpetuities.... There are no named remaindermen as to principal who will take possession on the natural termination of the preceeding [sic] estates. Therefore, these interests violate the Rule Against Perpetuities and the money and certificates pass by intestacy to the Plaintiff, the widow of [decedent].

The trial court essentially found that because decedent failed to provide a time for the termination of the trust and because decedent failed to name remaindermen to the principal of the trust, the remainder interest in the principal would not vest within the perpetuities period. We disagree with the trial court's analysis.

A remainder is vested if the only impediment to the right of immediate possession is the existence of the preceding estate. Pridgen v. Tyson, 234 N.C. 199, 201, 66 S.E.2d 682, 684 (1951). In Item 8, decedent stated that at plaintiff's death, the certificates held in trust for plaintiff were to be maintained and the interest from the certificates were to be used to pay taxes on the land decedent left to defendants. Since defendants are entitled to the interest income immediately upon plaintiff's death, defendants have a vested remainder interest in the income interest from the certificates.

The question we must now answer is whether the failure to provide for the termination of the trust and for the distribution of the principal violates the Rule Against Perpetuities and voids the gift of the interest income to defendants. We conclude that here it does not. Defendants here have a vested right to receive the interest income from the certificates. Although decedent's will does not provide explicitly for the termination of the trust or the distribution of the principal, "[i]n the absence of a disposition of the principal, a testamentary gift of the income or interest of a fund, such as a trust, without limitation as to its duration amounts to a gift of the principal." Wing v. Trust Co., 301 N.C. 456, 465, 272 S.E.2d 90, 97 (1980). Accordingly, we hold that decedent's gift to defendants of the interest income of the certificates amounted to a gift of the principal also. Since defendants are entitled to receive the certificates in fee after plaintiff's death, defendants have a vested remainder interest in the certificates. Accordingly, the devise in Item 8 does not violate the Rule Against Perpetuities.

III.

For the reasons stated, we affirm the judgment of the trial court declaring plaintiff the fee simple owner of the Albright Township property. Based on our discussion of the Rule Against Perpetuities, supra, we reverse the judgment of the trial court declaring the devise in Item 8 void.

Affirmed in part; reversed in part.

JOHNSON and LEWIS, JJ., concur.