#### DONALD A. McQUEEN, Trustee Under the Will of ANNIE McARTHUR, Deceased; DONALD A. McQUEEN, Legatee; DONALD A. McQUEEN, Heir at Law of ANNIE McARTHUR, Deceased; DONALD A. McQUEEN and Wife, BLANCHE R. McQUEEN, Individually; ELIZABETH McARTHUR GORE; ARTHUR D. GORE, JR.; A. D. GORE, SR.; CAROLINE McQUEEN BAKER and Husband, W. W. BAKER; MARGARET McQUEEN THORNTON; ALEXANDER McQUEEN; ADAM McARTHUR; LOUISE McARTHUR HERNDON and Husband, WILLIAM HERNDON; MARGARET MARSH McARTHUR; MARGARET McARTHUR; SARAH C. McARTHUR WEISIGER and Husband, JESSE WEISIGER; ELIZABETH M. MALLORY and Husband, ROSWELL MALLORY; CHARLES N. McARTHUR, SR., and Wife, NELL McARTHUR; DOROTHY McARTHUR; CHARLES N. McARTHUR III and ANNE BYRD McARTHUR v. BRANCH BANKING & TRUST COMPANY, and W. E. McARTHUR, Trustees Under the Will of ANNIE McARTHUR, Deceased; W. E. McARTHUR and Wife, BESSIE McARTHUR; NEILL McQUEEN; N. H. McGEACHY, JR.; CATHERINE McG. WARD and Husband, HERMAN WARD; N. H. McGEACHY, SR., and Wife, KATIE McA. McGEACHY; A. G. McARTHUR, Administrator c. t. a. of D. W. McARTHUR, Deceased; NELLIE McARTHUR; D. W. McARTHUR, JR., and Wife, SUSAN McARTHUR; A. G. McARTHUR and Wife, MABEL McARTHUR; NEILL McARTHUR and Wife, FRANCES McARTHUR; MARY McA. EWING and Husband, W. E. EWING.

(Filed 1 February, 1952.)

1. WUls §§ 33a, 33d — Date Qf commencement of the peidod of the trust held sufficiently certain.

The will provided that the period of the trust therein set up should begin at the death of the life tenant or from the date of the filing of the will for probate, whichever was later. The will was promptly probated, and the life tenant survived several years thereafter. *Held:*Title vested in the trustees immediately upon the death of testatrix, and the right of possession and the beginning of the period of the trust was, under the facts of the case, definite and certain, and therefore a holding that the devise in trust was too uncertain, vague, and indefinite to be enforceable is erroneous. *SemMe:*“the date of filing” the will for probate meant the date of the death of testatrix and the performance of the formalities which would entitle the trustees to assert their rights, and was also sufficiently definite and certain.

2. Wills § 33h—

Under the rule against perpetuities, if there is a possibility that a future interest may not vest within twenty-one years and ten lunar months after the life or lives of persons in being the devise is void, but the rule relates *738to the time of the vesting of an estate and not to the period during which the right to full enjoyment may be postponed.

3. Same—

While the rule against perpetuities may not he avoided by the creation of a private trust, such trust does not violate the rule if title vests during the prescribed time even though the right of full enjoyment be postponed beyond that period.

4. Same: Wills § 33c — Beneficial interest held to vest at time of testatrix’ death, and therefore rule against perpetuities is not applicable.

The will in question devised the residuary property, subject to a prior life estate, to trustees with direction that they pay designated sums to named beneficiaries after the death of the life tenant, give financial assistance to a grand niece and a grand nephew if either or both should desire to attend a university or college, and divide the net quarterly income and pay same to named beneficiaries in stated proportions, with further provision that at the expiration of twenty-five years after the commencement of the period of the trust, the *corpus*should be divided among the beneficiaries of the income in the same proportion. *Held,:*The beneficial title to the *corpus*of the trust vested in the beneficiaries designated immediately upon death of testatrix, subject to the life estate and the right of the trustees to make use of a part thereof in their discretion for the other designated purposes, with only the right of full enjoyment postponed for the twenty-five year period, and therefore the rule against perpetuities has no application.

5. Wills § 33i—

The creation of a trust postponing the right to full enjoyment of the vested interests of the beneficiaries for the twenty-five year period of the trust is not an unreasonable restraint upon alienation.

Appeals by plaintiffs and defendants from *Williams, J.,*May Term, 1951, CUMBERLAND.

Reversed.

Civil action under tbe Declaratory Judgment Act to bave tbe court determine tbe validity of a trust created by tbe will of Annie McArtbur, deceased, and to adjudicate tbe rights, title, and interest of tbe parties to tbis action in and to tbe property devised or attempted to be devised in tbe trust provisions of said will.

Annie McArtbur, late of Cumberland County, died testate, without issue, 15 May, 1943, leaving a substantial estate consisting of both valuable real and personal property. Her will was probated 17 May 1943 and is now of record in tbe office of tbe Clerk of tbe Superior Court of said county.

After making provision for her sister, Eliza McArtbur Newton, she devised “all tbe rest and residue of tbe property” of which she should die seized and possessed to her sister Margaret McArtbur for life. She then devised said property “after tbe death of my sister, Margaret McArtbur, or in tbe event she shall predecease me” to the Branch Bank*739ing & Trust Company, W. E. McArthur, and Donald A. McQueen, “in trust for the sole and specific uses and purposes, hereinafter set forth and no other.”

The trustees are directed (1) to collect the income from her property and to pay taxes, assessments, and like charges; (2) to give financial assistance to a named grandnephew and grandniece in the event either or both of them should desire to attend a university or college; (3) to pay, after the death of the life tenant, certain sums to named beneficiaries; and (4) to divide the net income quarterly and pay the same to named nephews and nieces, a grandnephew and grandniece in the proportions designated in Item Y, subsection 4 of the will.

She then provides in Item Y, subsection 7, that “The trust herein and hereby created and imposed shall continue for a period of twenty-five (25) years from the date of filing this, my last will and testament for probate in the office of the Clerk ... or from the date of the death of my sister, Margaret McArthur, whichever may be the later date” and that the trust shall terminate at the expiration of said period and the “trustees . . . shall within one (1) year thereafter fully account for, pay over, deliver and convey all of the assets and property belonging to said trust absolutely, unconditionally and in fee simple” to the same nephews and nieces, grandnephew and grandniece, who are to receive the income during the existence of the trust and in the same proportions.

The trustees are vested with unconditional authority to sell, lease and otherwise convey, and to invest and reinvest, any of the assets of the estate and with “sufficient power and authority to properly conduct and manage” the trust property to the best interests of the trust and the beneficiaries thereof.

When the cause came on for hearing in the court below, the parties waived trial by jury and submitted the cause to the judge upon the pleadings and such facts as he might deem it necessary to find in order to sustain a declaratory judgment. The court found the facts as to the date of the death of the testatrix, and the date of the probate of her will, and that Margaret McArthur, the life tenant, was living at the time of the death of the testatrix but died 26 January 1950, prior to the institution of this action.

Upon a consideration of the facts found, the pleadings, and the will of the testatrix, the court concluded that the trust created by the will offends the rule against perpetuities (1) for that the property devised to the trustees does not vest with certainty within a life in being and twenty-one years and ten lunar months thereafter, (2) for that the same constitutes an unlawful restraint against alienation, and (3) for that the trust is uncertain, vague, and indefinite, and therefore void.

It thereupon decreed that said purported trust is null and void and that title to the property attempted to be devised and bequeathed in trust *740is vested in tbe heirs at law and next of kin of Annie McArthur, deceased. Plaintiffs excepted *to so*much *of*said judgment as adjudges that title to the property is vested in the heirs and next of kin of the testatrix rather than in them, and the other devisees named in Item V (7), as devisees under the will, and appealed. The defendants excepted to the judgment as entered and appealed.

*N. PL. Person, Malcolm, McQueen, Clark & Clark, and Robert PL. Dye for plaintiffs.*

*McLean & Stacy for W. D. McArthur and wife, Bessie McArthur, and W. B. McArthur, as trustee.*

*N. II. McGeachey, Jr., and Nance & Barrington for other defendants named.*

BaeNhill, J.

Is the devise in trust contained in the will of Annie McArthur too uncertain, vague, and indefinite to be enforceable, or does it offend the rule against perpetuities, or does it constitute an unlawful and unreasonable restraint against alienation ? These are the three questions posed by the appeal of the defendants.

The plaintiffs take the position that the provision in the will that the trust shall continue for a period of twenty-five years from the date of the filing of the will for probate, or from the date of the death of the life tenant, “whichever may be the later date” makes the date of the commencement of the twenty-five year period so uncertain as to render the devise too vague and indefinite to be enforceable, and that it also brings the devise within the condemnation of the rule against perpetuities. On this record the contention thus advanced in support of the judgment entered in the court below is untenable.

The testatrix first devised the property in question to her sister for life, and then to the named trustees for the uses and purposes therein named. The devise to the trustees is unequivocal and constitutes a devise of the remainder subject to the life estate of Margaret McArthur. Legal title vested in the trustees immediately upon the death of the testatrix. Their right of possession, and the beginning of the twenty-five year period during which the trust shall remain active, was necessarily dependent upon whether the life tenant survived the testatrix. The provision in the will in this respect is merely expressive of the law which, in the absence of such provision, would have fixed the identical date as the date upon which the right of the trustees to assume possession of the trust property accrued.

Unquestionably the testatrix used the expression “the date of filing this, my last will and testament for probate” to mean upon her death and the performance of the formalities in respect to her will which would entitle the trustees to assert the rights accruing to them under the *741terms of tbe trust. In any event we are dealing with the situation as it is, not as it might have been under other circumstances which did not and cannot arise. The will was promptly admitted to probate, and the date of the death of the life tenant marks the beginning of the twenty-five year period of the trust. So then, we find no vagueness or uncertainty here such as would render the devise to the trustees void and unenforceable.

In so holding, we are not inadvertent to the Illinois case, *Johnson v. Preston,*226 Ill. 447, 10 L.R.A. ns 564, cited by plaintiffs. But that case is clearly distinguishable. There title was to vest in the trustees upon the probate of the will. Here it vested at the date of the death of the testatrix and the probate of the will merely fixes the beginning date of the trust. Neither is *Closset v. Burtchaell,*230 P. 554, in conflict with wha't is here said.

But the status of the devisees and their present interest, if any, in the property devised in trust is determinative of the question whether the devise is violative of the rule against perpetuities.

The right to create contingent interests in property, title to which is to vest at some time in the future, and to postpone the full enjoyment of vested interests, has always been recognized. Even so, the creation of a future interest in property necessarily fetters the estate and tends to affect its marketability. The courts therefore, at an early date, recognized that a rule which would hold the exercise of this right within reasonable bounds was imperative. To this end the rule against perpetuities was devised. "While modified by statute in some states, it has been consistently followed in this and a majority of the other jurisdictions in this country.

It is concededly a rule which draws an arbitrary line of demarcation between what shall be deemed reasonable and what unreasonable. No other type of rule would have sufficed to accomplish the purpose in mind.

It prescribes the time within which title to a future interest in property must vest. Under this rule, no devise or grant of a future interest in property is valid unless title thereto must vest, if at all, not less than twenty-one years, plus the period of gestation, after some life or lives in being at the time of the creation of the interest. If there is a possibility such future interest may not vest within the time prescribed, the gift or grant is void. Gray On Perpetuities, 4th Ed., p. 191, sec. 201; *Mercer v. Mercer,*230 N.C. 101, 52 S.E. 2d 229; *Trust Co. v. Williamson,*228 N.C. 458, 46 S.E. 2d 104; *Springs v. Hopkins,*171 N.C. 486, 88 S.E. 774; *Re Friday,*91 A.L.R. 766; *Trust Co. v. Scott,*110 A.L.R. 1442; Anno, *ibid.,*p. 1450; 41 A.J. 53, sec. 6, sec. 23, p. 67, sec. 29, p. 73.

It does not relate to and is not concerned with the postponement of the full enjoyment of a vested estate. The time of vesting of title is its sole subject matter. *Springs v. Hopkins, supra; Trust Co. v. Scott, supra; Re Friday, supra;*41 A.J. 73, sec. 29; *ibid,*sec. 23, p. 67.

*742A mere statement of the rule demonstrates its inapplicability here. The will under consideration creates no contingent future interest. The beneficiaries of the trust are named in the will and are persons who were in being at the time the will took effect and the estate was created. They are, under the terms of the will, to have and receive the income from the property quarterly, subject to the right of the trustees to make use thereof in their discretion for other designated purposes; and upon the termination of the trust they are to receive their respective shares, freed of the trust provisions. Thus there is no postponement of the vesting of their title to the property. Instead, title thereto vested in them, subject to the life estate and the terms of the trust, immediately upon the death of the testatrix. The trust served merely to postpone their right to the full enjoyment of the estate devised until the termination of the trust.

“Where an active trust is created for the use and benefit of named beneficiaries, or there is a gift of all or a part of the income therefrom to the beneficiaries, pending final division, or there is other language in the will evidencing a clear intent that a beneficial interest in the estate shall vest in the parties named immediately upon the death of the testator, with directions to the trustees to divide and deliver the estate at a stated time in the future, the interest vests immediately upon the death of the testator and the date of the division merely postpones the complete enjoyment thereof. *Coddington v. Stone,*217 N.C. 714, 9 S.E. 2d 420; *Robinson v. Robinson,*227 N.C. 155, 41 S.E. 2d 282; *Sutton, v. Quinerly,*228 N.C. 106, 44 S.E. 2d 521.” *Carter v. Kempton,*233 N.C. 1, 62 S.E. 2d 713; *Priddy & Co. v. Sanderford,*221 N.C. 422, 20 S.E. 2d 341; *Weill v. Weill,*212 N.C. 764, 194 S.E. 462; *Trust Co. v. Williamson, supra; Jackson v. Langley,*234 N.C. 243, and cases cited; *Curtis v. Maryland Baptist Union Asso.,*121 A.L.R. 1516. The devise here comes clearly within this rule.

“An estate is vested when there is either an immediate right of present enjoyment or a present fixed right of future enjoyment.” *Patrick v. Beatty,*202 N.C. 454, 163 S.E. 572; *Curtis v. Maryland Baptist Union Asso., supra.*

That the trustees are vested with authority to use income or a part thereof for other purposes does not affect this conclusion. *Jackson v. Langley, supra.*

In the *Jackson case*the trustee was authorized not only to use the income but also to invade the *corpus*of the estate for other purposes if, in his discretion, he deemed it necessary so to do. Yet we held that the equitable title to the property vested in the beneficiary of the trust immediately upon the death of the testatrix.

*Denny, J.,*speaking for the Court in that case says:

> “Furthermore, the mere fact that John Alfred Langley, Sr., the trustee, was given the right to use the income from or *corpus*of the trust *743eista'te for bis own benefit in tbe event certain enumerated emergencies arose, did not in any way affect or delay tbe vesting of tbe estate in Jobn Alfred Langley, Jr., to any greater extent tban if tbe trustee bad been given a life estate with tbe power to use tbe *corpus,*or any part thereof, for bis own use.

> “Tbe overwhelming weight of authority, including our own decisions, supports tbe view that in such cases tbe estate vests in tbe ultimate beneficiary upon tbe death of tbe testator, subject to be divested of such portion thereof as may be required to meet tbe authorized needs of tbe life tenant or other designated person, (citing cases)”

Tbe only limitation of tbe right of alienation imposed upon tbe devise is such as arises out of tbe creation of tbe trust and tbe postponement of the right of full enjoyment of tbe estate devised. As these provisions of tbe will are not violative of tbe rule against perpetuities, they do not constitute an unreasonable restraint upon tbe right of alienation.

Tbe plaintiffs rely on what is said in *Trust Co. v. Williamson, supra,*and *Mercer v. Mercer, supra,*respecting tbe rule against perpetuities as applied to private trusts. Perhaps tbe language used in tbe *Williamson case*and adopted in tbe *Mercer case*is not as full and complete as it might have been. In any event, tbe language used must be interpreted in tbe light of tbe facts in those cases and tbe authorities cited. In tbe *Williamson case*there was a power of appointment which, if exercised by tbe trustee, would be violative of tbe rule against perpetuities, and in tbe *Mercer case*there was a future interest which might not vest within tbe time prescribed by tbe rule.

Tbe rule may not be evaded by tbe creation of a private trust. It “applies to tbe time when tbe legal interest will vest in tbe trustees, as well as to tbe time when tbe equitable or beneficial interest will vest in tbe beneficiaries.” 41 A.J. 86. Tbe question is not tbe length of tbe trust but whether title vested within tbe required time. 41 A.J. 86.

■“Courts and writers sometimes state in a rather loose fashion that every express private trust must be limited in duration to a period not longer than lives in being when tbe trust starts and twenty-one years thereafter . . . This is incorrect, except in a very few states where trusts in general, or certain trusts, have been limited in their duration by statute.” 1A Bogert, Trusts and Trustees, 405.

“An interest is not obnoxious to tbe Eule against Perpetuities if it begins within lives in being and twenty-one years, although it may end beyond them. If it were otherwise, all fee-simple estates would be bad. Tbe law is tbe same with lesser estates.” Gray On Perpetuities, 4th Ed., p. 237, sec. 232 (see cases cited in notes); 1A Bogert, Trusts and Trustees, sec. 214 (pp. 346 and 362).

Tbe plaintiffs likewise cite and rely on *Carter v. Kempton, supra,*but that decision is not in point here. There tbe will contained no disposi-*744tive words or other' language disclosing an intent of the testator that bis children should take his property other than the direction for á division at the termination of the trust. The devise here comes within the rule followed in the first line of cases there cited.

The disposition made of the appeal by defendants renders academic the question posed by plaintiffs on their appeal.

For the reasons stated the judgment entered in the court below is

Reversed.