
113 S.E.2d 899 (1960)
252 N.C. 399
Elizabeth E. PARKER, J. D. Parker, C. J. Parker and Beatrice P. Meares,
v.
C. J. PARKER, Jr. and wife, Hazel W. Parker, Harold K. Parker and wife, Patricia H. Parker, Alton M. Parker and wife, Cathy Parker, Marian P. Harrell and husband, Walter Harrell, Donald G. Parker, Mary Louise P. Eason and husband, Dallas Eason, Branch Banking & Trust Company, Inc., Substitute Trustee, and the Unborn Children of Cheshire J. Parker.
No. 241.
Supreme Court of North Carolina.
April 27, 1960.
*902 John Webb and Gardner, Connor & Lee, Wilson, for plaintiffs, appellants.
Charles H. Dorsett, Troy, and Smith, Leach, Anderson & Dorsett, Raleigh, for appealing defendants, who are also appellees on plaintiffs' appeal.
Lucas, Rand & Rose and Naomi E. Morris, Wilson, for Branch Banking & Trust Co., Inc., substitute trustee, appellee.
Carroll W. Weathers, Jr., Wilson, guardian ad litem for Donald G. Parker and Mary Louise P. Eason, appellees.
Allen W. Harrell, Wilson, guardian ad litem for the unborn children of Cheshire J. Parker, appellees.
MOORE, Justice.
No devise or grant of a future interest in property is valid unless the title thereto must vest, if at all, not later 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. McPherson v. First & Citizens Nat. Bank, 240 N.C. 1, 15, 81 S.E.2d 386, 396, quoting from McQueen v. Branch Banking & Trust Co., 234 N.C. 737, 741, 68 S.E.2d 831. The rule refers solely to the vesting of estates and does not concern itself with their possession or enjoyment. Springs v. Hopkins, 171 N.C. 486, 494, 88 S.E. 774; McQueen v. Branch Banking & Trust Co. supra.
As a general rule, remainders vest at the death of the testator unless some later time for vesting is clearly expressed in the will or is necessarily implied therefrom. Pridgen v. Tyson, 234 N.C. 199, 201, 66 S.E.2d 682. A devise should take effect at the earliest moment the language will permit. McDonald v. Howe, 178 N.C. 257, 259, 100 S.E. 427.
"The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent." Carolina Power Co. v. Haywood, 186 N.C. 313, 318, 119 S.E. 500, 502. "An estate is vested when there is either an immediate right of present enjoyment or a present fixed right of future enjoyment." Patrick *903 v. Beatty, 202 N.C. 454, 461, 163 S.E. 572, 575. See also Little v. Wachovia Trust Co., 252 N.C. 229, 113 S.E.2d 689; Pridgen v. Tyson, supra.
"A legacy given to a class subject to a life estate vests in the persons composing that class at the death of the testator; but not absolutely; for it is subject to open, so as to make room for all persons composing the class, not only at the death of the testator, but also at the falling in of the intervening estate. This is put on the ground that the testator's bounty should be made to include as many persons who fall under the general description or class as is consistent with public policy; and the existence of the intervening estate makes it unnecessary to settle absolutely the ownership of the property until that estate falls in." Mason v. White, 53 N.C. 421, 422. The rule thus clearly enunciated has been consistently adhered to in this jurisdiction. Privett v. Jones, 251 N.C. 386, 393, 111 S. E.2d 533; Sawyer v. Toxey, 194 N.C. 341, 343, 139 S.E. 692; Walker v. Johnston, 70 N.C. 576, 579.
We now apply these rules to the devise in item 6 of the will of Josephus Parker.
Item 6 may be paraphrased in this wise: Lands to Cheshire J. Parker for and during the term of his natural life and at his death to his children, and in the event any child shall predecease him, the issue of such child shall stand for, represent and take that portion.
The rule in Shelly's case does not apply. Griffin v. Springer, 244 N.C. 95, 101, 92 S.E.2d 682. Cheshire J. Parker took an estate for life. At the death of testator there vested in C. J. Parker, Jr., Harold K. Parker, Alton M. Parker and Marian P. Hall an estate in remainder in fee. At the respective births of Mary Louise P. Eason and Donald G. Parker the estate in remainder opened to make room for them and they were vested of an estate in remainder in fee. The estate in remainder is likewise subject to open for admission of any children who may hereafter be born to Cheshire J. Parker. Privett v. Jones, supra; Griffin v. Springer, supra. The law indulges the presumption that so long as a man lives he is capable of procreation. McPherson v. First & Citizens Nat. Bank, supra, 240 N.C. at page 19, 81 S.E.2d at page 398.
The facts in the instant case are closely analogous to those in Wachovia Bank & Trust Co. v. McEwen, 241 N.C. 166, 84 S.E.2d 642. The remainders in fee are defeasible and, if a remainderman dies before the falling in of the life estate, his or her issue will take as purchasers. Bowen v. Hackney, 136 N.C. 187, 48 S.E. 633, 67 L.R.A. 440. In any event, the estate or estates of the executory devisees would vest during the life of Cheshire J. Parker, at his death, or within the period of gestation thereafter. Therefore the provisions of item 6 do not violate the rule against perpetuities. This item contains no trust provisions and the trust created in item 7 has no application thereto. All individual defendants in this action, whether in esse or in posse, have a vested or possible future estate in the lands described in item 6 as hereinbefore indicated.
We now consider item 7 of the will. It's provisions in brief are: "I give and devise unto my son, Cheshire J. Parker," land and personal property in trust; the net rents to be used in defraying the college expenses of the children of Cheshire J. Parker, without regard to any equal application of the rent income among them for this purpose; and "when" the youngest child reaches "the age of twenty-eight (28), the trustee will convey the land" and personal property to the children, "and if any child or children shall in the meantime have died leaving issue surviving, such issue shall stand for and represent his, her or their parents, and receive the share that his, her or their parents would have received."
Defendants-appellees contend that the same principles apply here as in item 6, *904 that upon the death of testator the equitable title immediately vested in the children of Cheshire J. Parker then living subject to open up to admit all children who might thereafter be born, and that the rule against perpetuities has no application to an estate thus vested. They invoke the principle that "the intervention of the estate of the trustee will not have the effect of postponing the gift itself, but only its enjoyment." Finch v. Honeycutt, 246 N.C. 91, 100, 97 S.E.2d 478, 485, quoting from Coddington v. Stone, 217 N.C. 714, 9 S.E. 2d 420. See also McQueen v. Branch Banking & Trust Co., supra; Williams v. Sasser, 191 N.C. 453, 458, 132 S.E. 278. They assert that the trust only fixes the time for enjoyment of the gift.
Defendants-appellants agree that the equitable estate vested in the children of Cheshire J. Parker who were in esse at the death of the testator and that the trust only postponed the enjoyment of the gift. But they call attention to the principle of law that where there is no intervening estate, "a legacy given to a class immediately, vests absolutely in persons composing that class at the death of the testator; for instance, a legacy to the children of A: the children in esse at the death of the testator take estates vested absolutely, and there is no ground upon which children who may be born afterwards can be let in." Mason v. White, supra. See also Cole v. Cole, 229 N.C. 757, 760, 51 S.E.2d 491, 6 A.L.R.2d 1335. Sawyer v. Toxey, supra; Wise v. Leonhardt, 128 N.C. 289, 38 S.E. 892; Walker v. Johnston, supra.
Defendants-appellants further contend that the beneficiaries were ascertained at the death of the testator, that title in fee simple then vested and the rule against perpetuities does not apply. Fuller v. Hedgpeth, 239 N.C. 370, 80 S.E.2d 18; Robinson v. Robinson, 227 N.C. 155, 41 S. E.2d 282; Coddington v. Stone, 217 N.C. 714, 9 S.E.2d 420. If fee simple titles did so vest, then, by the express terms of item 7, they are defeasible and subject to be divested should any of the beneficiaries die before the termination of the trust. In the event of such death or deaths, the issue of those so dying would take as purchasers under the will. Smyth v. McKissick, 222 N.C. 644, 453, 24 S.E.2d 621; Mercer v. Downs, 191 N.C. 203, 131 S.E. 575; Bowen v. Hackney, supra. There is authority for the proposition that a vested gift, though subject to a condition subsequent, does not come within the rule against perpetuities. 41 Am.Jur., Perpetuities, sec. 29, p. 74; In re Friday's Estate, 1933, 313 Pa. 328, 170 A. 123, 91 A.L.R. 766; Shoemaker v. Newman, 1933, 62 App.D.C. 120, 65 F.2d 208, 89 A.L.R. 1034. On the contrary, it is said that "an executory interest (that is, an interest which cuts off a previous estate rather than follows after it when it has terminated) is not `vested' until the time comes for taking possession." American Law of Property: Casner, Vol. VI, sec. 24.3, p. 13. In view of our interpretation of item 7 we think it unnecessary to decide which rule applies here.
It is our opinion, and we so hold, that the rule against perpetuities is violated by the terms of Item 7.
"The rule is one of law and not of construction, and it is to be applied even if it renders the express intent of the testator impossible of accomplishment. * * * In the case of wills, the time at which the validity of limitation is to be ascertained is the time of testator's death." The Law of Real Property (3d Ed.): Tiffany, Vol. 2, secs. 393 and 400, pp. 153 and 163. "If by any conceivable combination of circumstances it is possible that the event upon which the estate or interest is limited may not occur within the period of the rule, or if there is left any room for uncertainty or doubt on the point, the limitation is void. * * * The fact that the event does actually happen within the period does not render the limitation valid." 41 Am.Jur., Perpetuities, sec. 24, pp. 69 and 70. Moore v. Moore, 59 N.C. 132.
*905 At the time of testator's death, the youngest child of Cheshire J. Parker then living was two years old. Two have been born since his death. At the time of the institution of this action the younger of these was eighteen. There is still the possibility that other children will be born to Cheshire J. Parker.
The primary intent of Josephus Parker was to encourage and provide for the collegiate education of his grandchildren, the children of Cheshire J. Parker. It would seem unreasonable, considering the will as a whole, that he intended to exclude such grandchildren as might be born after his demise. In some items of his will, other than 6 and 7, he made provision for grandchildren and specifically named them. But in items 6 and 7 he made provision for grandchildren as a class. It was his intention that the trust should continue for a time sufficient to permit even the youngest child to pursue collegiate training of an extended nature or to complete a college course which might for some reason be interrupted; he, therefore, provided that the trust should not terminate until the youngest child was 28 years old. It was his further intention that when the purposes of the trust had been fully accomplished, the corpus should then be conveyed to the children of Cheshire J. Parker, and if any child had died in the meantime leaving issue surviving, such issue should receive the share of such child. In other words, the roll would be called at the termination of the trust.
The inquiry is whether the estates created by the will are vested or contingent. The rule against perpetuities inveighs against contingent interests which may not vest within the prescribed period. In other words, "the rule against perpetuities applies only to future contingent estates and is inapplicable to estates already vested." 41 Am.Jur., Perpetuities, sec. 30, p. 74.
"* * * (W)hen there is uncertainty as to the person or persons who are to take, the uncertainty to be resolved in a particular way or according to conditions existing at a particular time in the future, the devise is contingent." Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 452, 70 S.E.2d 578, 582; Scales v. Barringer, 192 N.C. 94, 133 S.E. 410. Where there is no gift of an estate, or the income therefrom, or other interest therein, distinct from the division which is to be made equally between all the children and, for the first time, upon the termination of the trust, the "when" of the division is of the essence of the donation and is a condition precedent. It marks both the time of vesting and time of enjoyment of the estate. Carter v. Kempton, 233 N.C. 1, 6, 62 S.E. 2d 713. See also Anderson v. Felton, 36 N.C. 55.
In item 7 there is no bequest of income to the class as a whole or to any particular individual in the class, nor is there any gift of the corpus apart from the provision for conveyance per stirpes when the trust has terminated. The persons in whom the estate will ultimately vest are not ascertained at the death of the testator and cannot be ascertained until the termination of the trust. The estate and interests created are therefore contingent.
At the death of testator the possibility existed that the four children of Cheshire J. Parker then in esse might die more than twenty-one years and ten lunar months prior to the attainment of the age of twenty-eight by the youngest child of Cheshire J. Parker born after the death of testator. Indeed the possibility still exists. Therefore, the provisions of item 7 violate the rule against perpetuities and are void. The property involved must pass by intestate succession to the heirs at law and next of kin of Josephus Parker.
It is observed that plaintiffs waived in open court any and all rights or claims they may have to any income of the trust *906 property heretofore expended. This judicial disclaimer is binding upon them.
The cause is remanded that judgment may be modified in accordance with this opinion.
Modified and remanded.
