Appeal by H. Morrison Johnston, Guardian Ad Litem for Kathryn King Goode and Caroline Clark and the Unknown and Unborn Issue of Alson Lloyd Goode, III, Winston Glasgow Goode, Kathryn King Goode, David Clark, Jr., Allison Thorne Clark, Walter Clark and Caroline Clark, from a judgment entered 21 September 1978 by Judge Grist in the Schedule A Mixed Session of Mecklenburg Superior Court. Petition for discretionary review under G.S. 7A-31, prior to review by the Court of Appeals, allowed 4 January 1979. This case was docketed and argued as No. 30, Spring Term, 1979.
Exum, Justice. Justice Carlton did not participate in the consideration or decision of this case.
Plaintiff trustees instituted this action under our Declaratory Judgment Act, G.S. 1-253 et seq., seeking a construction of the will of Allison Lloyd Goode, who died 14 August 1968. The will was written by the testator himself and was properly executed on
31 August 1965. A codicil, immaterial to this dispute, was executed 30 December 1966. The will provides in pertinent part as follows:
The remainder of my estate shall be held in trust for the benefit of grandchildren of mine who may be living at the time of my death, and said trust shall be administered and disbursed equally as follows:
(a) If, in the opinion of my Trustees, sickness or an emergency arises with any beneficiary, the Trustees shall advance any money the Trustees deem adequate. Any money so advanced shall be deducted from said beneficiary's share at the time of final distribution.
(b) Distribution of the estate shall be made by the Trustees at the time Caroline Clark becomes twenty-six years of age, or should she die before she becomes twenty-six, then at such time as she would have been twenty-six.
(c) If any beneficiary should die before his or her share is received by him or her, and leaving issue, then their share shall be held in trust for the issue of such beneficiary until he or she becomes twenty-one years of age, and shall be administered and disbursed in the same manner as the trust created hereunder. If the beneficiary does not leave issue, their share shall immediately be and become a part of the trust to be divided among the remaining beneficiaries, and not to any relatives whatsoever.
(d) Notwithstanding any provisions hereinbefore contained to the contrary, no grandchild of mine born after my death shall become a beneficiary under this Will, and a trust shall not be set up hereunder for him or her if such grandchild shall have been born subsequent to the time when any beneficiary hereunder, a grandchild of mine or the issue of a grandchild of mine, shall have become entitled to receive his or her distribution of the principal or corpus of the trust held for him or her; provided, however, that a distribution of the corpus or principal under the provisions of Subsection (a) of this Item VIII shall not be considered a distribution thereof under this Subsection (d).
(e) In making a distribution of income among the several beneficiaries of this my Will, the action of my Trustees in this connection shall be binding upon all the beneficiaries hereunder and shall not be subject to question by any one whether or not the distributions are equal, it being my intention that my said Trustees shall have full authority to exercise this discretion with reference to the distribution of such income, and this shall ...