## Facts

- B. F. Montague died in 1928 leaving a will that devised real property through successive interests.
- The will granted: (1) a life estate to Montague’s widow; (2) upon her death, a life estate to Montague’s three daughters “as a class,” with survivorship; (3) upon the death of the last surviving daughter, a life estate to Montague’s grandchildren “as a class”; and (4) upon the death of the last surviving grandchild, a remainder to the “lawful issue” of the grandchild or grandchildren (i.e., Montague’s great-grandchildren).
- The will provided that if there were no such issue, the remainder would pass to Peace Institute.
- After the life tenants died, a dispute arose whether the remainder to great-grandchildren was void under the common-law Rule Against Perpetuities (RAP).
- North Carolina National Bank, as executor of Thomas A. Norris, Jr. (a grandchild and life tenant), sued to determine title; a great-grandchild (a minor) appealed through a guardian ad litem after an adverse ruling.

## Issues

1. Whether a remainder to the lawful issue of the testator’s grandchildren, made to vest only upon the death of the last surviving grandchild of a class, is void under the Rule Against Perpetuities.
2. Whether the “doctrine of separability” permits saving any portion of the remainder as a set of separately vesting subclass gifts.

## Decision

- The Court of Appeals affirmed the trial court’s judgment.
- The remainder to Montague’s great-grandchildren violated the RAP and was void.
- The court rejected applying separability because the will created a single, unitary class remainder tied to the death of the last surviving grandchild.
- With the remainder void, title vested in the estate of Thomas A. Norris, Jr., administered by the bank as executor.

## Legal Principles

- Under the common-law RAP, a future interest is invalid unless it must vest, if at all, within lives in being at the creation of the interest plus 21 years (and a possible gestation period); any possibility of later vesting voids the gift.
- RAP validity is tested as of the testator’s death and turns on legal possibilities, not what actually occurred.
- A remainder to great-grandchildren that depends on the death of the last survivor of a potentially expanding class of grandchildren is vulnerable under the RAP because additional grandchildren could be born after the testator’s death, delaying vesting beyond the permissible period.
- The separability (subclass) doctrine does not apply where the will’s language makes the remainder vest only upon termination of the class life estate as a whole, rather than at the death of each identified grandchild.

## Conclusion

Because the will made the great-grandchildren’s remainder vest only upon the death of the last surviving grandchild of an open class, there was a possibility of vesting outside the perpetuities period; the entire remainder was therefore void, and title passed to the executor of the grandchild’s estate.


N.C. Nat'l Bank v. Norris, 21 N.C. App. 178, 203 S.E.2d 657 (Ct. App. 1974)