North Carolina National Bank v. Norris
of Appeals of
21 N.C.App. 178, 203 S.E.2d 657.
Johnson, pp. 166-169
Facts: Montague left a will with a life estate to his wife, then to his daughters for life, then to his grandchildren for life, and then a remainder in fee simple to his great-grandchildren (none of whom were born at the time of Montague’s death). Upon the death of his only grandchild, Norris, the bank named as the executor of Norris’s will sues to find out whether Montague’s will is invalid for violating the Rule Against Perpetuities. The bank gets the property if the Rule was violated, but Norris’s kids get the property if the Rule wasn’t violated. The trial court finds for the bank, and the kids appeal.
Issue: Did Montague’s will violate the Rule Against Perpetuities?
Rule: A grant of a future interest must vest, if at all, not later than 21 years (plus the period of gestation) after some life in being at the time of the creation of the interest.
Analysis: The problem with Montague’s gift to the great-grandchildren was that it created a contingent remainder for people who weren’t born yet at the time of Montague’s death. There was the possibility that Montague’s daughters could have more kids (thus more Montague grandchildren) after his death.
The problem with the will appears to be that Norris wasn’t specifically named in the will, and thus he couldn’t be used as a “life in being”.
Maybe the problem is this: Norris could have croaked right after Montague. But that wouldn’t have been the end of it, because the daughters could have had more children. Then the daughters could have croaked. So no one alive at the time of the execution of the will would still be alive. But the grandchildren could live longer than 21 years before they have children. Then the remainder could remain contingent for longer than 21 years and 9 months. So the future interest fails!
Furthermore, the court finds that the Doctrine of Separability does not apply in this case.