ABRAMS V. TEMPLETON 465 S.E.2d 117 (1995) CASE BRIEF

ABRAMS V. TEMPLETON

465 S.E.2d 117 (1995)

NATURE OF THE CASE: Appellant testator's daughter's children sought review of a judgment which modified the testator's will so that her grant to respondent testator's son's children would not violate the rule against perpetuities.

FACTS: Ramage, executed her will in 1914 and died in 1915. She was survived by her husband Frank, a son Albert, and various grandchildren. The testator's daughter, Alma Templeton, predeceased her, but left five surviving children: Frank, Bob, Charlie, Grace and Anna. In her will, the testator devised approximately one hundred and thirty acres of land to Alma's children (the Templeton side). The testator further devised a one hundred and sixty-acre tract of land, to her husband Frank Ramage during the term of his natural life and at his death . . . to her son Albert Ramage . . . to have, hold, and enjoy the same during his natural life, and at his death to his children to hold and enjoy during the term of their natural life and at their death their several interests to be divided among their children. The clause violates the rules against perpetuities. The provision which created a gift over to her great-grandchildren was non-vested for the purposes of the rule against perpetuities. The gift over to the great-grandchildren was a class gift. Class gives are purely contingent gifts, and are not vested until the final membership of the class is determined. The class could continue to expand during the lifetime of the testator's grandchildren because it remained 'open' after the gift was made. Albert could have had another child after the death of the testator. This child could have had a child more than twenty-one years after the death of all of the children of Albert who were living at the time of the testator's death. Therefore, the interest of the testator's great-grandchild (Albert's grandchild) would vest more than twenty-one years after the death of Albert. The trial judge found that the testator's intended plan of distribution was to equally benefit each 'side' of her family: Alma's descendants (the Templeton branch) and Albert's descendants (the Ramage branch). The trial judge inserted a savings clause : I will, devise and bequeath to my son Albert Ramage all that certain tract of land situate in the county and state aforesaid, containing about one hundred sixty acres more or less... to have, hold, and enjoy the same during said Albert Ramage's natural life, and at his death to his children who are alive at the time of my death to hold and enjoy during the term of their natural life and at their death their several interests to be divided among their children. The trial court merely changed the 'measuring life' for the purposes of the perpetuities rule. It was now the testator's grandchildren, all of whom were alive at the time of the testator's death and whose children, the testator's great-grandchildren, would have to be born during the lives of these grandchildren. Albert had nine children (the testator's grandchildren). Five of these children survived Albert and had children. The remaining four of his children died childless. The judge ordered the shares of the grandchildren who died without children to augment the share of those who had children. Therefore, he ordered that the entire interest in the one hundred sixty-acre tract should pass one-fifth to each set of children of the five grandchildren who died with children. Appellants, the testator's heirs-at-law in the Templeton branch, contend the gift over to the great-grandchildren was void as violative of the rule against perpetuities. Therefore, since the testator's grandchildren had only life estates in the property, at their deaths the remainder reverted back to the testator to pass to her heirs-at-law.

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LEGAL ANALYSIS:

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