Appeal by plaintiffs and defendants Roy A. Cooper, Jr., guardian ad litem, and Franklin L. Adams, Jr., guardian ad litem, from Rouse, Judge. Judgment entered 13 July 1982 in Superior Court, Nash County.
Willis P. Whichard, Judge, wrote the opinion. Chief Judge Earl W. Vaughn concurs. Judge Eugene H. Phillips dissents.
Plaintiffs brought this declaratory judgment action to interpret Item Four of the Last Will and Testament of Watson N. Sherrod, Sr., which provides:
I will and bequeath to my granddaughters May McLaughtin [sic] Sherrod and Elizabeth Llewellyn Sherrod and any unborn children of my son, Watson N. Sherrod, Jr. my farm located in Nash County, N.C. and known as the Hunter Farm, share and share alike. This bequest to be handled by the children's father Watson N. Sherrod, Jr. as he thinks best until the oldest child shall have reached the age of thirty years unless this bequest shall be needed to give either child a suitable education.
The court determined that this item created an active trust, the beneficiaries of which were the living children of Watson N. Sherrod, Jr. and any children hereafter born to him; that it did not violate the rule against perpetuities; and that it did not include children adopted by Watson N. Sherrod, Jr.
From this judgment, plaintiffs and the guardian ad litem for any child or children hereafter adopted by Watson N. Sherrod, Jr. (hereafter appellants) appeal. The guardian ad litem for any child or children hereafter born to Watson N. Sherrod, Jr. cross appeals.
The first issue is whether the above language creates a trust. The elements of a trust are: "(1) sufficient words to raise it, (2) a definite subject, (3) and an ascertained object." Thomas v. Clay, 187 N.C. 778, 783, 122 S.E. 852, 854 (1924), quoted in Trust Co. v. Taylor, 255 N.C. 122, 126, 120 S.E.2d 588, 591 (1961).
As to sufficiency of the language, our courts consistently have held that "no particular language is required to create a trust relationship if the intent to do so is evident." Stephens v. Clark, 211 N.C. 84, 88, 189 S.E. 191, 194 (1937); see also Y.W.C.A. v. Morgan, Attorney General, 281 N.C. 485, 490, 189 S.E.2d 169, 172 (1972). It is evident here that the testator intended to create a trust for his grandchildren. He states that their father is to manage the property until the oldest child reaches the age of thirty. He does not use precatory language. Rather, he mandates that "[t]his bequest [is] to be handled by the children's father." This language suffices to create a trust if the other elements are present. They clearly are. The testator's farm in Nash County is the "definite subject." His grandchildren, as beneficiaries, are the "ascertained object[s]."
A similar case is Johnson v. Salsbury, 232 N.C. 432, 61 S.E.2d 327 (1950). The testator there left part of his estate to his grandchildren and requested that their father be appointed "to act as guardian . . . in handling" the estate. Id. at 434, 61 S.E.2d at 329. The Court held that since the law did not allow a grandfather to appoint a testamentary guardian for his grandchildren, the will should be interpreted as creating a trust for the grandchildren with their father as trustee. See also Camp v. Pittman, 90 N.C. 615 (1884).
Item Four here, like the language in the Johnson will, creates an active trust.
The next issue is when to call the roll and determine the members of the class of beneficiaries. The court determined that the roll should be called on 1 November 1992, the thirtieth birthday of the testator's oldest grandchild, when by the terms of the will the trust terminates. Thus, any children of Watson N. Sherrod, Jr., whether born before or after the death of the testator, would be included in the class, provided they were born or en ventre sa mere prior to 1 November 1992.
Our courts have developed several rules for determining when to call the roll. If the class gift is to be distributed at the death of the testator, then regardless of whether the gift is personal or real property, the class closes at the death of the
testator. Clarke v. Clarke, 253 N.C. 156, 160-61, 116 S.E.2d 449, 452 (1960); Robinson v. Robinson, 227 N.C. 155, 157, 41 S.E.2d 282, 284 (1947). This is known as the "rule of convenience." Cole v. Cole, 229 N.C. 757, 760, 51 S.E.2d 491, 493 (1949).
If the gift is personal property and is to be distributed at a later date, however, the roll is called at the date of distribution. Meares v. Meares, 26 N.C. (4 Ired.) 192, 197 (1843); Fleetwood v. Fleetwood, 17 N.C. (2 Dev. Eq.) 222, 223 (1832). The rationale is that "as many objects of the testator's bounty as possible ought to be included, and there is no necessity for ascertaining the owners of the fund until it is to be distributed." Hawkins v. Everett, 58 N.C. (5 Jones) 42, 44 (1859); see also Knight v. Wall, 19 N.C. (2 Dev. & Bat.) 125, 130 (1836); 1 N. Wiggins, Wills and Administration of Estates in North Carolina § 150, at 496-97 (1964).
This rationale of including as many members of the class as possible has been extended to gifts of real property when there is an intervening life estate, so that the roll is not called until the termination of the life estate. Parker v. Parker, 252 N.C. 399, 403, 113 S.E.2d 899, 903 (1960) (quoting Mason v. White, 53 N.C. 421, 422 (1862)); Sawyer v. Toxey, 194 N.C. 341, 343, 139 S.E. 692, 693 (1927). The explanation is that
the ownership is filled for the time, and there is no absolute necessity to make a peremptory call, for the takers of the ultimate estate, [so] the matter is left open until the determination of the life estate, with a view of taking in as many of the objects of the testator's bounty, as come within the description and can answer to the call, when it is necessary for the ownership to devolve and be fixed.
Walker v. Johnston, 70 N.C. 575, 579 (1874).
If the gift is real property, there is no intervening life estate, and the property is to be distributed at a later date, the class is closed at the death of the testator. Wise v. Leonhardt, 128 N.C. 289, 290-91, 38 S.E. 892, 892 (1901). The will in Wise provided: "I give and devise to my son Lawrence's children the half of the tract of land where he now lives, to be divided equally among them after the death of my son Lawrence, to have and to hold to them and ...