104 S.E.2d 461 (Ga. 1958)
The instrument in question is a trust instrument.1 The trust instrument provided that the trust should be divided into as many parts as he had children.2 Each child was to receive the proceeds from his or her trust for and during his or her natural life.3
The settlor then provided remainders to the issue of his children upon the death of said children.4 He set out in detail how the remainders were to be paid and administered.5 The settlor, during his lifetime, had an absolute right to revoke or terminate the trust, to change the beneficiaries in the policies, and to receive any and all benefits under the policies.6
It is conceded by all parties that Code § 108-111.1 does not apply to this instrument.7 The petitioners being sui juris and not spendthrifts.8 The question is whether at the time it was executed and delivered, or at the death of the settlor.9 The petitioners contended that under the provisions of the trust instrument they take a fee-simple interest in the trust fund rather than a life interest.10 They also contended that the instrument in question violates the rule against perpetuities because there was a possibility at that time that the settlor would have additional children born to him thereafter, by whose life the duration of the trust would be limited.11
The judgment of the court below dismissing the petition on general demurrer was therefore not error.12 The Supreme Court of Georgia is the court.13
Whether the petitioners take a fee-simple interest in the trust fund rather than a life interest under the provisions of the trust instrument?14
No. It is first contended that, under the provisions of the trust instrument, the petitioners take a fee-simple interest in the trust fund rather than a life interest.17 While there is language in paragraphs F, G, and H of section V of the trust agreement which by themselves could be construed to enlarge the gift to these petitioners into a fee-simple interest, a consideration of all the instrument discloses that this was not the settlor’s intent.18 He provided that the trust should be divided into as many parts as he had children.19 Each child was to receive the proceeds from his or her trust for and during his or her natural life. The settlor then provided remainders to the issue of his children upon the death of said children. He set out in detail how the remainders were to be paid and administered.
The language appearing in paragraphs F, G, and H of section V, considered in connection with the above, is not sufficient to override the clearly apparent intention of the settlor as determined from the whole instrument.20 Accordingly, as is held above, the petitioners took a life interest in the corpus of the trust estate with remainders to their issue, and the trusts are executory since the remaindermen will not be determined until the petitioners die.21
The petitioners take a life interest rather than a fee-simple interest, and the trusts are executory.22
Whether the trust instrument violates the rule against perpetuities because there was a possibility at the time of execution that the settlor would have additional children born to him thereafter?23
When a settlor retains an absolute right to revoke the trust during life for his exclusive benefit, limitations are tested for perpetuities violations as of the settlor's death rather than the execution date, so that no after-born children can extend the period.24
No. The settlor, during his lifetime, had an absolute right to revoke or terminate the trust, to change the beneficiaries in the policies, and to receive any and all benefits under the policies. The trust instrument was executed and delivered by the settlor during his lifetime.25 The settlor later died.26 When so considered, it is apparent that none of the limitations in the instrument violate the rule against perpetuities.27 All limitations under the instrument will end and all interests vest within twenty-one years after the death of the settlor’s children plus the usual period of gestation.28
No children can be born to the settlor after his death plus the usual period of gestation.29 It follows that the limitations over to the issue of the children of the settlor are valid.30
The trust instrument does not violate the rule against perpetuities.31
Whether the validity of interests created by the trust instrument under the rule against perpetuities is to be determined as of the date of the settlor’s death rather than the date the instrument was executed and delivered?32
When a settlor has the power during his lifetime to revoke or destroy the trust estate for his own exclusive personal benefit, the question whether interests created by an instrument or deed of trust are void because in violation of the rule against perpetuities is to be determined as of the date of the settlor’s death and not as of the date the instrument is executed and delivered.33
Yes. The settlor, during his lifetime, had an absolute right to revoke or terminate the trust, to change the beneficiaries in the policies, and to receive any and all benefits under the policies. Therefore, under the rulings above made, the time from which it will be determined whether any of the limitations in the trust agreement are void for remoteness is the date of the settlor’s death.34
The question is to be determined as of the date of the settlor’s death rather than the date the instrument was executed and delivered.35