Bryant, Victor S., Jr.

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Future Interests -- Rule of Convenience in Class Gifts

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 28 | Number 2 Article 132-1-1950Future Interests -- Rule of Convenience in ClassGiftsVictor S. Bryant Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationVictor S. Bryant Jr., Future Interests -- Rule of Convenience in Class Gifts, 28 N.C. L. Rev. 219 (1950).Available at: http://scholarship.law.unc.edu/nclr/vol28/iss2/13NOTES AND COMMENTSas insurance are involved it will be a rare case indeed where all claimantscan be personally served with process within one state. Thus, the onlyway that the stakeholder can be sure that he is protecting himself is tobring suit in the federal courts under the Interpleader Act, therebymaking possible service of process anywhere in the United States.' 9The liberal construction placed by the federal courts upon the diversityrequirements of the Act is salutary. It would be tragic indeed if theremedial effect envisaged in reducing the jurisdictional amount, allow-ing process to run throughout the United States, liberalizing venueprovisions, and abolishing the historical requirements that the claimsbe identical and have a common origin,20 should be practically annihi-lated in a narrow construction of the diversity provisions of the Act.MAX OLIVER COGBURN.Future Interests-Rule of Convenience in Class GiftsIn a recent North Carolina case' the following clause of a will wasbefore the court for interpretation:"ITEM V 'I will, devise, and bequeath to my belovednephews2 and any other children who may be borne to Robertand Peg Cole, my house and lot at 301 Fayetteville together withthe contents, and the lot west of the home on Fayetteville Road.' "At the time of the execution of the will Robert and Peg had threechildren and at the testator's death, almost three years after the execu-tion, there was a fourth child en ventre sa mere. The court was calledupon to decide what children of Robert and Peg should be included inthe gift. Should the gift go only to those three in esse at the testator's'death and to the fourth en ventre sa mere or should it include also allchildren born to Robert and Peg after the testator's death? The courtheld that the roll was not to be called until the possibility of any furtherissue was extinct by reason of the death of Robert or Peg.The general rule for the determination of the members of a classwhere the gift is immediate3 is that only those members in esse or en yen-tre sa mere at the testator's death may take under the gift and any per-sons who fit the description of the class but are born after the testator'sdeath are excluded unless the clear intention of the testator is shown to1028 U. S. C. §2361 (1948).o See note 2 supra.1 Cole v. Cole, 229 N. C. 757, 51 S. E. 2d 491 (1948).- Robert and Peg Cole were testator's nephew and niece. The court interpretedthe word "Nephews" to mean "grand-nephews."'A gift is immediate where the conveyor, having present ownership of thesubject matter limits the corpus thereof to designated groups, annexing no condi-tion precedent, interposing no period of time before enjoyment and creating nointerest prior to that of the takers. RESTATEMENT, PROPERTY, EXPLANATORY NOTE§294 (1940).1950]NORTH CAROLINA LAW REVIEWinclude them.4 This is known as the rule of convenience5 and is almost0universally accepted. The court in the present case recognizes andaccepts this rule but refuses to close the class at the testator's death,holding that a clear intention is shown by the words of the testator toinclude any and all class members born after his death. The reasonsbehind this rule of convenience are suggested by its name. If the classis allowed to remain open until all possibility of increase is gone themembers of the class in esse or en ventre sa mere at the testator's death,in most cases, would attain only limited and restricted benefits from thegift for a considerable period of time. By application of the rule, how-ever, the present members may utilize and enjoy the gift immediatelywithout restriction and without having to put up costly bonds to in-demnify later born members; the quick settlement of the estate in theinterest of public policy is facilitated; and the property is more freelyalienable without possibility of cloud or defect in title. Even where therule is inapplicable North Carolina has now by statute7 provided forthe sale, lease, or mortgage of land where there are unborn interests.The unborn interests are represented by guardians ad litem, and theproceeds of the sale, lease, or mortgage are held in trust until the classis closed and then distributed to the class. While this makes the landmore freely alienable the other objections to holding the class open arestill present in that the devisee's enjoyment of his gift is postponed, andthe estate is not brought to an early settlement.A limitation to the applicability of the rule is the legal principlefrequently stated by the courts: that where the intent of the testator isclearly shown such intent must govern the construction of the will.8It is due to this desire of giving great weight to the testator's intentionthat the present case and the majority hold the rule of convenience tobe nothing more than a rebuttable presumption,9 while others indicatethat it is an inexorable rule of law10 and apply the rule regardless ofany intention shown. In those jurisdictions holding the rule to be arebuttable presumption the determination of when an intent of the testa-tor is shown so as to permit the courts to disregard the rule has beenShinn v. Motley, 56 N. C. 490 (1857) ; Merrill v. Winchester, 120 Me. 203,113 At!. 261 (1921) ; Hepburn v. Winthrop, 83 F. 2d 566 (D. C. Cir. 1936) ; 2SimEs, FUTun INTr.ESTS §374 (1936).'Long, Class Gifts in North Carolina, 22 N. C. L. Rar. 297, 314 (1944).6 The rule in Kentucky is different in that if the class members are childrenof a near relative of the testator the class remains open until all possibility ofincrease is extinct. Patterson's Executor v. Dean, 241 Ky. 671, 44 S. W. 2d 565(1931).7 N. C. SEss. L. 1949, c. 811. Discussed in 27 N. C. L. Rav. 415 (1949).8'Rigsbee v. Rigsbee, 215 N. C. 757, 3 S. E. 2d 331 (1939).'Cole v. Cole, 229 N. C. 757, 51 S. E. 2d 491 (1948) ; Sawyer v. Toxey, 194N. C. 341, 139 S. E. 692 (1927) ; Shinn v. Motley, 56 N. C. 490 (1857).'0 Mason v. White, 53 N. C. 421 (1862); Ringrose v. Brambam, 2 Cox 384,30 Eng. Rep. 177 (1794).[Vol. 28NOTES AND COMMENTSa subject of much controversy both in the United States and Englanddue to the subjectiveness of the question.In the early case of Petaway v. Powell"- the North Carolina court,by dictum, in a holding which excluded the members of a class bornafter the testator's death, said that in accordance with the rule of con-venience, if a legacy were given to the children of the testator's daugh-ter "begotten or to be begotten" any children born after the testator'sdeath would be excluded.But in the later case of Shinn v. Motley12 the North Carolina courtheld that the words "to all their children which now are or hereaftermay be" show a clear intent of the testator to include all those childrenborn before or after his death so the rule was not applied. The courtcited as a precedent the North Carolina case of Shull v. Johnson13 butthere the words "to my nieces and nephews that might be living at orafter my death," as used in the will, without doubt showed the testa-tor's intent to include those nieces and nephews born after his death.It might be argued that the words "or hereafter may be" were intendedby the testator to mean those children born between the making of thewill and his death' 4 and thus the rule would apply to close the class athis death since the intention of the testator to take the case out of therule must be clearly expressed. 15 In two cases 16 decided soon after theShinn case the court, relying on the Shinn case, held that the word"hereafter" was intended by the testator to include all members of theclass born before or after his death although the gift in each case wasimmediate. These cases seem to indicate that the court was departingfrom the construction as stated in Petaway v. Powell' 7 although thecourt did not overrule, distinguish, or even cite the Petaway case. How-ever, in the later case of Sawyer v. Toxey' 8 the court, when confronted-"22 N. C. 308 (1839) (there the words in the will were: "to A and his chil-dren").1256 N. C. 490 (1857).1355 N. C. 202 (1855) ; The court also cited: Scott v. Earl of Scarborough,1 Beav. 154, 48 Eng. Rep. 898 (1838) (trust with the proceeds for all and everythe child and children of testator's children "now born or who shall hereafter beborn during the lifetime of their respective parents." Held: this included all classmembers born as long as there was possibility of increase. This expressly includesall such members.)."4 Butler v. Lowe, 10 Sim. 317, 59 Eng. Rep. 636 (1839) ("begotten or to bebegotten." The court held the words "to be begotten" to mean any members bornbetween the date of execution of the will and the death of the testator.).1 Shinn v. Motley, supra.'0 Pickett v. Southerland, 60 N. C. 615 (1864) ("- to the rest of my niecesthat Mary now has or may hereafter have!'); Roper v. Roper, 58 N. C. 16 (1859)("A's children that she has now or may hereafter have").' 22 N. C. 308 (1839).'8 194 N. C. 341, 139 S. E. 692 (1927) (the court found an intent of the testa-tor to close the class at his death in another clause of the will also but said thatthe words describing the class are alone sufficient to close the class at his deathsince no intent to keep it open longer is shown by the words.) ; in the case of1950]NORTH CAROLINA LAW REVIEWwith a will by which the testator left property to the children of twodaughters and four sons "or any other of my children who may havechildren borned to them after the date of this will," held that only thosegrandchildren in esse at the testator's death were entitled to share inthe property. The court there recognized the principle that if the testa-tor's intent were clearly expressed to include later born members of theclass the rule would not operate to exclude them, but considered thatthis was not such a case.The cases from other jurisdictions are as controversial on this sub-ject as are those from North Carolina. The Maine court in Merrill v.Winchester,10 though recognizing the rule of convenience as merely arebuttable presumption, refused to take the case out of the general rulewhere the will provided: '- and to her children, grandchildren, and,great-grandchildren now living or hereafter born, I give and bequeaththe sum of three thousand dollars each, to be paid within two yearsafter this will is admitted to probate to those then living; and to thoseborn afterward, within two years from the date of birth." The courtheld that "to those born afterwards" referred to any children en ventresa mere at the testator's death, and not to any conceived after his death.There it was said that the language must be clear and unambiguous totake the will out of the general rule, since without such a clear expressionit was improbable that the testator should wish to postpone the distribu-tion of his estate so long. Other expressions as: "to all my first cous-ins,"'20 "my nieces and nephews by blood or marriage,"2 1 "to A and hisfamily," 22 have been held not to show an intent of the testator to permitthe class to increase beyond his death. And yet in a West Virginiacase23 where the words "to E and her child or children" were used ina will the court held that the words "or children" included any whoshould be born after the testator's death.2 4In England such words as: "to his children begotten or to be be-Wise y. Leonhardt, 128 N. C. 289, 38 S. E. 892 (1901), where the words "to myson Lawrences children-to be equally divided among them after the death ofmy son Lawrence" were used, the court held that only those children of Lawrencein being at the testator's death could take, the reason being that the title to theland would be in vibubus until the class closed if left open for later born members,This reason does not seem to be a proper one since the title might vest in thosein being subject to open up and let in after born members.1 120 Me. 203, 113 Atl. 261 (1921)."Howland v. Slade, 155 Mass. 415, 29 N. E. 631 (1892)."in re Wright's Estate, 284 Pa. 334, 131 Atl. 188 (1925).22Langmaid v. Hurd, 64 N. H. 526, 15 Atl. 136 (1888).22 Bently v. Ash, 59 W. Va. 641, 53 S. E. 636 (1906).2Accord: Dean v. Long, 122 Ill. 447, 14 N. E. 34 (1887) (proceeds of trustto E and her children) ; Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. 56 (1890) (nowborn or which may hereafter be born) ; Downes v. Long, 79 Md. 382, 29 Atl. 827(1894) (to wife and children of my son now living and to any other legitimatechild or children which may hereafter be born to him.[Vol. 28NOTES AND COMMENTSgotten," 25 "to every child he hath,"2 6 "to each child that may be born toeither of the children of either of my brothers lawfully begotten,"27 "toeach of the children of nephews and nieces begotten or to be begotten ' 28have been held to exclude any class members not in esse or en ventresa nwre. But, on the other hand, "whether now born or hereafter to beborn" 29 has been held to include all those children born after the testa-tor's death.The rule of convenience applies to deeds as well as to wills. So thewords "to A and his children" in a deed will convey the land jointly toA and any children in esse or en ventre sa mere at the execution of thedeed to the exclusion of any other children born after the execution."But if there is an intent clearly shown in the deed to include children.born after the execution they will be included.8 1 Some courts havesaid that in the case of a deed all the grantees must be in esse at thedate of execution.8 2 This does not seem to be a proper reason for theexclusion of after born members since the title by deed may vest inthose in being subject to open up and let in later born members byshifting use.88It appears that some courts are more hesitant to include class mem-bers born after the testator's death where there is a specified amountleft to each member than where there is a total sum left to the class asa whole, since in the former situation the entire estate frequently mustbe left open until the amount due the class is determined by the dosingof the class, while in the latter situation only that share of the estateleft to the class must remain open until the possibility of increase isextinct.8 4 Another distinction, that between real and personal property,is made by some courts when confronted by a gift to a class. Thesecourts more readily hold the class open after the testator's death wherethe gift is of realty on the ground that realty is more easily administeredwhile being held in abeyance awaiting the close of the class than is per-" Sprackling v. Rainier, 1 Dick. Rep. 344, 21 Eng. Rep. 302 (1761) Thiscase was cited as a precedent in the North Carolina case of Petaway v. Powell,.supra.Ringrose v. Bramham, 2 Cox 384, 30 Eng. Rep. 177 (1794).:' Storrs v. Benbow, 2 My. & K. 46, 39 Eng. Rep. 862 (1833).2" Butler v. Lowe, 10 Sim. 317, 59 Eng. Rep. 636 (1839)."Defflis v. Goldschmidt, 1 Mer. 417, 35 Eng. Rep. 727 (1816). This casewas decided after the Sprackling case, supra, note 24, but did not overrule, dis-tinguish, or even cite the Sprackling case. It was, however, cited as a precedentin the North Carolina case of Shinn v. Motley, supra.'0 Heath v. Heath, 114 N. C. 547, 19 S. E. 155 (1894) ; Cullens v. Cullens, 161N. C. 344, 77 S. E. 228 (1913) (land goes to A and his children i esse or enventre sa mere at the date of the deed as tenants in common.).1 Mellichamp v. Mellichamp, 28 S. C. 125, 5 S. E. 333 (1888) (to W. and thechildren she already has and such children as she may hereafter bear.)."2 Miller v. McAlister, 197 Ill. 72, 64 N. E. 254 (1902) (to M and her children,born and to be born).33 KALES, ESTATES, FuTURE INTERESTS, §74 (2d Ed. 1920)." Mann v. Thompson, 69 Eng. Rep. 271 (1854).1950]NORTH CAROLINA LAW REVIEWsonalty.8 5 These, however, do not seem to be proper distinctions sincethe test of inconvenience to the entire estate as compared with the in-convenience to the members of the class then in esse, and the test ofease of administration of realty as against personalty do not change theexpression of the testator's intention, if any, as set out in the will.The desirability of the principle of seeking the testator's intentionand attempting to follow it in the construction of a will is recognized,yet, in seeking the intention of the testator, it should be rememberedthat there are two probable intentions: one to admit as many membersas possible into the class, the other to give the members the benefit ofthe gift immediately upon the testator's death and not force them towait for unknown periods to enjoy their property.80 Thus when thecourts apply the rule of convenience they are upholding one probableintention while destroying the other probable intention of the testator.Further, the courts and legislatures have not hesitated to defeat thetestator's expressed intention when applying the Rule in Shelley'sCase,37 and by converting fees tail into fees simnpleUS in order to facili-tate administration and to further the enjoyment and convenience of therecipients of devises and grants. Why then should the courts hesitatebecause of ambiguous and doubtful language in a will to exclude classmembers born after the testator's death? It is submitted that unlessthe testator expressly provides for any member of a class born afterhis death the court should avoid inconvenience and confusion and refuseto admit such members.As Justice Browning of the Virginia court said :88"The written expression of human language has never reachedsuch a state of precision and exactness as to preclude one of men-tal capacity and ingenuity from saying that one thing is meant,and another of equal versatility saying that something else is in-tended. Quite frequently confusion ensues from which comes thetroublesome element which we call 'doubt' and at that juncturethe law, ever wholesome and remedial, provides the way out bysupplying its rule of construction."VICTOR S. BRYANT, JR."Cole v. Cole, 229 N. C. 757, 51 S. E. 2d 491 (1948).LoNG, supra note 5, at 314.ST Nichpls v. Gladden, 117 N. C. 497, 22 S. E. 459 (1895) (the court theresaid the Rule in Shelley's Case is an inexorable rule of law and the intention of thegrantor or testator will not be considered)." N. C. GEN. STAT. §41-1 (1943)." American National Bank and Trust Co. of Danville v. Herndon, 181 Va.17, 19, 23 S. E. 2d 768, 770 (1943).[Vol. 28

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Future Interests -- Rule of Convenience in Class Gifts

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