First-Citizens Bank & Trust Co. v. Carr

MALLARD, Chief Judge. Upon motion of Barbara D. Currin Smetzer (Mrs: Smetzer), under Rule 41 (b) of the Rules of Civil Procedure and after the hearing, Judge Canaday dismissed the action as to her with prejudice by order dated 1 August 1970 and filed 21 August 1970. Appellant, Hellen D. Currin Carr (Mrs. Carr), contends that this was error. The trust created under the terms of the last will and testament of A. B. Currin, Jr., was to terminate when Mrs. Smetzer reached 35 years of age. Mrs. Carr and Mrs. Smetzer (wife and daughter, respectively of A. B. Currin, Jr., deceased) were the main beneficiaries under the trust. It was alleged by plaintiff trustee and stipulated by the parties that Mrs. Smetzer had reached the age of 35 years. Questions of law and fact were raised by the complaint which were common to all of the named defendants. When the facts alleged and stipulated are considered together, a justiciable controversy is asserted between the parties. Rule 20 of the Rules of Civil Procedure. See also McIntosh, N. C. Practice 2d, § 650; Haley v. Pickelsimer, 261 N.C. 293, 134 S.E. 2d 697 (1964). When liberally construed, we hold that the complaint in this case alleges that Mrs. Smetzer’s legal relation to the trust estate was involved and that she was a permissive and necessary party in this action seeking an interpretation of the testamentary trust involved herein. Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E. 2d 654 (1964) ; Trust Co. v. Barnes, 257 N.C. 274, 125 S.E. 2d 437 (1962); Lide v. Mears, 231 N.C. 111, 56 S.E. 2d 404 (1949). The trial judge committed error in allowing the motion of Mrs. Smetzer to dismiss the action as to her under Rule 41(b) of the Rules of Civil Procedure. However, Mrs. Smetzer did not and could not properly contend under the doctrine of invited error that the court committed" error in granting her motion. 1 Strong, N. C. Index 2d, Appeal and Error, §§ 7, 52. Mrs. Carr appealed and assigned this dismissal as error but in her brief does not indicate how this error on the part of [618] the trial judge was prejudicial to her. Judgments are not set aside for mere error. The appellant must show that the ruling complained of is erroneous, that it was material and prejudicial, and that a different result likely would have ensued if it had not been for the error. Glenn v. Raleigh, 248 N.C. 378, 103 S.E. 2d 482 (1958). “The burden is upon appellant to show error amounting to a denial of some substantial right.” Rubber Company v. Distributors, Inc., 256 N.C. 561, 124 S.E. 2d 508 (1962). We hold that the error in dismissing the action as to Mrs. Smetzer was not prejudicial to Mrs. Carr. Mrs. Carr contends that under the trust the trustee was bound to make an actual partition in distribution of the five tracts of real estate comprising the trust corpus between Mrs. Carr and Mrs. Smetzer. In Item Five of the will, the powers and authority of the trustee were set out in detail. Subsection (n) of Section 1 of Item Five of the will is pertinent and reads as follows: “(n) To divide and allot the trust estate in accordance with the terms of this agreement either in kind or in money or partly in kind and partly in money and to include undivided interests in the property so devised or allotted, and the judgment of the Trustee concerning the relative values of the properties so divided or allotted shall be final and conclusive upon all persons interest in the trust estate.” (Emphasis added.) The trustee did not make an actual partition of the lands but included undivided interests in the property allotted. From the language used in the trust, we hold that the trustee was authorized but not compelled to make an actual partition. An abuse of discretion on the part of the trustee is not shown on this record. Kuykendall v. Proctor, 270 N.C. 510, 155 S.E. 2d 293 (1967); Woodard v. Mordecai, 234 N.C. 463, 67 S.E. 2d 639 (1951). Mrs. Carr also contends that the deed tendered to her by the trustee was not a sufficient conveyance of the interest conferred by the terms of the trust. We do not agree. The result is that the order dated 1 August 1970, filed 21 August 1970, allowing Mrs. Smetzer’s motion to dismiss as to her is reversed, and the judgment herein dated 1 August 1970, filed 11 September 1970, is affirmed. [619] Affirmed. Judge Parker concurs. Judge Graham dissents.