## Facts

- In 1929, O.J. Massee, Jr. created a revocable inter vivos insurance trust and transferred life insurance policies to a trustee bank.
- Massee reserved broad powers, including the right to amend or revoke the trust and to change beneficiaries.
- The trust provided that, after Massee’s death, income would be paid to Massee’s wife for life.
- At the wife’s death (or at Massee’s death if she predeceased him), the principal would be divided into shares for Massee’s then-living children and for issue of any deceased child.
- Each living child was to receive income from that child’s share for life; for a deceased child, income would be paid to that child’s issue under the instrument’s terms.
- On a child’s death, that child’s share was to pass to the child’s issue; if any such issue was under 21, the share would be held in trust until reaching 21 with interim income provisions.
- After Massee’s death, his children filed a petition to terminate the trust and distribute the corpus, arguing (a) they owned the shares in fee simple or (b) if they had only life interests, the remainder limitations violated the Rule Against Perpetuities.
- The trial court sustained a general demurrer and dismissed the petition; the children appealed.

## Issues

1. Whether the trust instrument gave Massee’s children fee simple interests permitting termination and immediate distribution, or only life interests with remainders to their issue.
2. Whether the future interests to grandchildren and other issue violated the Rule Against Perpetuities.
3. For Rule Against Perpetuities analysis, whether the revocable inter vivos trust took effect on execution and delivery or only at the settlor’s death.

## Decision

- The court affirmed dismissal of the petition.
- The children received life interests only, with remainders to their issue; the trust remained executory because the remaindermen could not be determined until the children’s deaths.
- The trust took effect when executed and delivered, notwithstanding the settlor’s retained powers to revoke or amend.
- The trust’s future interests did not violate the Rule Against Perpetuities.

## Legal Principles

- Trust construction turns on settlor intent determined from the entire instrument; isolated language that could suggest an enlarged estate does not control if the overall plan shows life interests with remainders.
- A direction to pay income to a beneficiary for life, when coupled with detailed remainder provisions to the beneficiary’s issue, indicates a life estate rather than an outright fee simple interest in the corpus.
- A revocable inter vivos trust that conveys a present interest is not treated as testamentary merely because the settlor retains broad powers to revoke, amend, or change beneficiaries.
- For Rule Against Perpetuities purposes, such an inter vivos trust is measured from execution and delivery, and remainder interests to issue following life estates in the settlor’s children vest or fail, if at all, within lives in being plus twenty-one years.

## Conclusion

The Georgia Supreme Court held that Massee’s children could not terminate the trust because they held only life interests with valid remainders to their issue, and the revocable inter vivos trust took effect upon execution and did not offend the Rule Against Perpetuities.


Cook v. Horn, 214 Ga. 289, 104 S.E.2d 461 (Ga. 1958)