Palmer v. Ketner , 29 N.C. App. 187 ( 1976 )

223 S.E.2d 913 (1976) 29 N.C. App. 187

Alvin PALMER et al.
v.
Mary KETNER, Individually, et al.

No. 7530SC799.

Court of Appeals of North Carolina.

April 21, 1976.

Brown, Ward & Haynes, P. A. by Woodrow H. Griffin, Waynesville, for plaintiffs-appellees.

Millar, Alley & Killian by Leon M. Killian, III, Waynesville, for defendant-appellant, Mary Ketner.

CLARK, Judge.

The trial court ruled "That there having been no caveat to the will of E. K. Parton and particularly in view of the fact that Mary Ketner was a subscribing witness, the said Mary Ketner is estopped to deny that the trust corpus should be distributed to the heirs of Rena Henry and Leah Palmer." We find that the court erred in this conclusion. The subscribing witness to a will is not required to read it, and the witness's signature is only an affirmation that a statutory requirement was complied with and does not constitute an acceptance or endorsement of the will's provisions. Nor does the failure of defendant Ketner to file a caveat constitute an estoppel. She was not an heir-at-law of testator at the time of his death and had no standing to file a caveat.

Plaintiffs rely on Farthing v. Farthing, 235 N.C. 634, 70 S.E.2d 664 (1952), for the proposition that a litigant may not contest any part of a will in a declaratory judgment action. In Farthing it was held that a plaintiff may not bring an action for a declaratory judgment holding a will, contract or other instrument invalid; it does not hold that every document involved in a declaratory judgment action must be deemed valid and enforceable. The defendant Ketner is not estopped to question the validity of the remainder provisions of the will.

The trial court concluded that upon the death of Vesie Parton on 23 November 1971, only Leah Palmer survived from the three original trustees, and that she would have been entitled to the "revenues" of the trust for a period of twenty-five years provided she lived that long, but upon her death on 30 November 1974, by acceleration of their remainders the trust property vested in plaintiffs, the heirs of testator's sisters, Louisa Carpenter, Rena Henry and Leah Palmer.

Defendant assigns error in this conclusion, contending that testator intended that the substitute trustees, after the original trustees named in the will had died, would continue receiving the income from the trust for a period of twenty-five years after the death of Vesie Parton, and the remainder would not vest until the termination of the trust. If the will is so interpreted it would violate the rule against perpetuities. "Under this rule, no 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 (1952). (Note: It appears that the words "not less" in the preceding quotation is erroneous; it should read "no more".) The remainder provisions of the will would be void; the estate would pass to the heirs of the testator, which included his sister, Louisa Carpenter, and the devise of her interest in the estate of the defendant Mary Kenter would effectively transfer such interest.

Nothing else appearing, terms used in a will must be construed so as to accomplish the intent of the testator, which is determined from the will itself and the surrounding circumstances known to the testator. As to the property devised or bequeathed, the will is construed as if executed immediately prior to the testator's death. G.S. 31—41. As to the identity of the devisee or legatee, however, it is to be construed, nothing else appearing, in the light of circumstances known to the testator at the time of its actual execution. Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973). There is a long presumption against disinheritance. An heir should not be disinherited except by express devise or by one arising from necessary implication, by which the property is given to another. Gold v. Price, 24 N.C.App. 660, 211 S.E.2d 803 (1975).

The ultimate beneficiaries of the corpus of the trust were the heirs of testator's three sisters named in the will. These heirs received no benefits under the trust until the trust terminated. Only then do they have a beneficial interest. The heirs of the named sisters are not ascertainable at the death of the testator and cannot be ascertained until the termination of the trust, which marks the time of vesting. Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899 (1960); Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713 (1950). In the recent case of Roberts v. Bank, 271 N.C. 292, 156 S.E.2d 229 (1967), where the testator established a trust for his daughter for life, with the corpus to go at her death, per stirpes, to his other children, it was held that the remainder interest vested as of the time of the testator's death. While we have some difficulty in distinguishing the rule in Roberts from the rule in Parker and Carter, apparently those cases are not overruled by Roberts. Sub judice, it appears clear from the language in the will, particularly the use of the term per stirpes and the substantial lapse of time between the death of testator and the termination of the trust, that the remainder interests could not be ascertained and did not vest until the termination of the trust.

At the death of the testator the possibility existed that the trust would not terminate and the remainder interest would not vest until more than twenty-one years, plus the period of gestation, after some life or lives in being at the time of testator's death. The trust was to continue at least twenty-five years after the death of testator's mother and sister Vesie and after their burial expenses and cost of grave markers had been paid. The mother and sister Vesie and the named trustees might die more than twenty-one years and ten lunar months prior to the termination of the trust. Therefore, the trust provisions of the will violate the rule against perpetuities and are void. By intestate succession the property involved must pass to the heirs at law and next-of-kin of the testator, E. K. Parton; and the sister Louisa Carpenter owned an interest in the estate at the time of her death on 31 January 1971 which she devised to her niece, the defendant Mary Ketner.

Plaintiffs contend that the trust terminated upon the deaths of testator's mother and sister Vesie because the duties of the trustees ceased to exist, the trust became passive, and the legal and equitable titles merged. We reject this contention since Item III imposed the duty on the trustees to use, conduct and maintain the property so as to secure the greatest amount of revenue from it, and this responsibility continued after the death of the mother and sister Vesie.

Nor do we agree with plaintiffs' contention that upon the death of Vesie Parton, Leah Palmer was the sole remaining trustee and sole beneficiary of the trust income, which would merge the estate and terminate the trust. The testator provided for three trustees and for successor trustees if a vacancy occurred, and that they would receive the trust income for at least twenty-five years after the deaths of his mother and sister Vesie. The record on appeal consisted of the pleadings, the will, and stipulations, none of which gave us the surrounding circumstances existing at the time the will was made. For interpretation of the will we are confined to the will itself. We have no knowledge of the kind, amount, or value of the estate property or the income therefrom. We must be guided by the intent of the testator as expressed in the will, and as so expressed the trustees, whether original or successor trustees, were to "conduct and maintain the property and receive the income therefrom for at least twenty-five years until it vested in the ultimate beneficiaries, the heirs of testator's named sisters" We do not find any intent to limit the income to the original trustees so as to terminate the trust and accelerate the remainder.

We find that the trust provisions of the will violate the rule against perpetuities and are void, and that the property involved passed by intestate succession to the heirs-at-law and next-of-kin of E. K. Parton, and that by will the interest of Louisa Carpenter passed to the defendant Mary Ketner.

The judgment is reversed and this cause is remanded for entry of judgment in accordance with this opinion.

Reversed and remanded.

MORRIS and VAUGHN, JJ., concur.