City of Washington v. Ellsworth

Denny, J. The first question for determination on this appeal is whether the trustor, an appellee herein, revoked the interest of William T. Ellsworth and his heirs and assigns by the execution and registration of the instrument dated 29 January 1946, the pertinent parts of which are hereinabove set out. Those parts of G.S. 39-6 pertinent to the present inquiry are as follows: “The grantor, maker or trustor who has heretofore created or may hereafter create a voluntary trust estate in real or personal property for the use and benefit of himself or of any other person or persons in esse with a future contingent interest to some person or persons not in esse or not determined until the happening of a [28] future event may at any time, prior to the happening of the contingency vesting the future estates, revoke the grant of the interest to such person or persons not in esse or not determined by a proper instrument to that effect * s In the case of MacRae v. Trust Co., 199 N.C. 714, 155 S.E. 614, Stacy, C. J., speaking for the Court, stated: “To bring a case within the terms of this statute, it should appear: First, that the trust is a voluntary one; second, that it was created for the benefit of the trustor, or some person in esse, with a future contingent interest limited to some person not in esse, or not determinable until the happening of a future event; and, third, that if the instrument creating the trust has been recorded, the deed of revocation has likewise been recorded. Stanback v. Bank, 197 N.C. 292, 148 S.E. 313.” There can be no serious question that the trust created by the instrument dated 11 May 1939 was a voluntary one. Stanback v. Bank, supra. On the other hand, there can be no doubt about the fact that William T. Ellsworth was in esse when the original trust instrument involved herein was executed. The motion in the court below requesting the court to include the minor appellants as distributees, states that W. H. Ellsworth and his wife, Alice T. Ellsworth, both of whom are dead, were the parents of six children, namely: Dornton G. Ellsworth; H. Kirkwood Ellsworth; Madeline E. Edens; Gladys A. Ellsworth; Mary Lillian E. Smith (she and her husbandi are both dead), survived by a daughter, Marelyn S. Greene; and William T. Ellsworth (who is dead), survived by his widow, Rebecca V. Ellsworth, and three minor children, Lee Shamburger Ellsworth, Rebecca Harvey Ells-worth and Carol Winn Ellsworth. The second trust instrument describes William T. Ellsworth as the nephew of Gladys A. Ellsworth and the grandson of W. H. Ells-worth. Even so, the record supports the view that the William T. Ellsworth whose interest was sought to be withdrawn by the second agreement was in esse when each of the trust instruments was executed and was a beneficiary under the provisions of the original trust instrument. Therefore, we hold that, under the provisions of the original trust instrument, the interest of William T. Ellsworth was a vested interest at the time the trustor sought to withdraw his interest in the property involved herein. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E. 2d 341. G.S. 39-6 gives the trustor no right to withdraw a vested interest [29] in property held by one who was in esse when the trust was created, but only to withdraw a future contingent interest to some person or persons not in esse or not determinable until the happening of a future event. Moreover, the second instrument does not purport to withdraw a contingent interest to persons not in esse at the time of the execution of the first or second instruments, but only to withdraw the interest of “William T. Ellsworth, his heirs or assigns.” Consequently, we hold that the second instrument purporting to withdraw the interest of William T. Ellsworth and his heirs and assigns was unauthorized by the original trust instrument or by the provisions of G.S. 39-6. Mackie v. Mackie, 230 N.C. 152, 52 S.E. 2d 352. The appellees further contend, however, that since Gladys A. Ells-worth reserved the right “to sell or dispose” of the property involved, with the written consent of W. H. Ellsworth and with the written consent or joinder of John H. Bonner, the Trustee, she had the right to convey the property involved to “Mary Lillian Smith, Madeline E. Edens, Kirkwood Ellsworth and Dornton- Ellsworth, as well as any other person.” Hence, they contend that the instrument dated 29 January 1946 was the equivalent of a deed to the above-named children of W. H. Ellsworth and his wife, Alice T. Ellsworth. We do not concur in this view. The original instrument contained no provision reserving the right to revoke or modify the trust provisions created therein, it only reserved the right of the trustor with the consent of those parties above-named “to sell or dispose” of the property described in the instrument. In Scott on Trusts, Yol. Ill, Second Edition, section 330.1, at page 2394, it is said: “Where the creation of a trust is evidenced by a written instrument which purports to include the terms of the trust, and there is no provision in the instrument expressly or impliedly reserving to the settlor power to revoke the trust, the trust is irrevocable.” The last cited authority, section 331, at page 2413, states: “The same principles are applicable to the modification of a trust as are applicable to the revocation of a trust. If the settlor does not by the terms of the trust reserve a power to alter or amend or modify it, he has no power to do so.” The mere reservation of a power to sell or dispose of property included in a trust, only reserved the right to sell or dispose of such property in furtherance of the purposes for which the trust was established. Spring Green Church v. Thornton, Trustees, 158 N.C. 119, 73 S.E. 810. [30] In our opinion,-“the reserved power “to'sell or'dispose’-’ of' the1 p-rop-erty described in ' the - trust instruments involved-herein, contemn plated an actual bona fide sale made for ah' adequate ¡consideration in order to carry 'out the purposes of the trust and-did not-authorize the trust-or-to make--a gift of the.: property or to sell it for a-nominal consideration. Taylor v. Phillips, 147 Ga. 761, 95 S.E. 289, and cited cases. In the last cited case, the property was conveyed in-trust for the use of the grantor-and his family for the-life of'- the"graritor and' hi-s wife and at the 'death: of the survivor'to be- -equally' divided 'among the children of the grantor, the representatives of any-deceased-chil-. dren taking the share to which its deceased parent would have been entitled'; The trust provided further that the'trustee'“shall, upon the written, request of” the wife of the-grantor “Sell'and-convey'the said lots and' premises1 to such person and on such -terms as -she may direct,-and the receipt of the” wife “for the said-purchase-money shall be a coihplete discharge" to the said” trustee “of all liability for the same.’’’ The wife-/who survived the grantor, executed a deed to a child of a deceased daughter1 conveying part of'the trust property in consideration1 for the-love -and affection' and-' appreciation which the wife had for the ' grandchild. The Court held that such a deed was an improper exercise of the -power" given to' the wife in the original trust instrument and that the original trust instrument did not give the wife power to make a gift of-the'land. It held that the trust instrument created life estates'in-the wife and grantor with a vested remainder in the' children. The Court said:“The remainder so created was subject'to be divested'only under circumstances stated in the paper, namely, by sale by the trustee, at the written request of the wife. The. sale contemplated was an actual bona fide sale,, made upon a valuable consideration. It was not contemplated that the life estates reserved to the grantor and his wife, or the vested remainder, should be defeated by a mere gift, or a conveyance upon a nominal valuable consideration.”-, In view of the conclusions we have reached and- thei authorities cited herein, we hold that upon the death or,marriage of- Gladys A. Ellsworth, the principal now held for investment by the Clerk of the Superior Court of Beaufort County, North-.-Carolina,- for the benefit of Gladys A. Ellsworth,- pursuant-, to. the . judgment of his Honor, Judge Paul, filed in the office of said Clerk.óh-:16;May I960, shall be distributed as' follows:- one-fifth each' to'--D.ornton G. Ells-worth, H. Kirkwood Ellsworth, Madeline E. Edens and Marelyn S. [31] Greene, and one-fifteenth each to Lee Shamburger Ellsworth, Rebecca Harvey Ellsworth and Carol Winn Ellsworth, or their respective heirs at'-law., . The’ judgment of the court below, is modified to the extent herein-above set out. Modified and affirmed. Rodmán, J. to.ok'no part in the consideration or decision of this case.