City of Washington v. Ellsworth, 18

• Citation: 116 S.E.2d 167,253 N.C. 25
• Decision Date: 21 September 1960
• Docket Number: No. 18,18
• Parties: CITY OF WASHINGTON, v. Gladys ELLSWORTH, Madeline E. Edens and husband, Francis L. Edens; H. Kirkwood Ellsworth and wife, Louise Ellsworth; Dornton G. Ellsworth and wife, Naomi L. Ellsworth; Marelyn Greene and husband, George C. Green, Jr.; John H. Bonner, Trustee; Rebecca V. Ellsworth, Lee Shamburger Ellsworth, Rebecca Harvey Ellsworth, Carol Winn Ellsworth.
• Court: United States State Supreme Court of North Carolina

Page 167

116 S.E.2d 167

253 N.C. 25

CITY OF WASHINGTON, v. Gladys ELLSWORTH, Madeline E. Edens and husband, Francis L Edens; H. Kirkwood Ellsworth and wife, Louise Ellsworth Dornton G. Ellsworth and wife, Naomi L. Ellsworth; Marelyn Greene and husband, George C. Green, Jr.; John H. Bonner Trustee; Rebecca V. Ellsworth, Lee Shamburger Ellsworth Rebecca Harvey Ellsworth, Carol Winn Ellsworth.

No. 18

Supreme Court of North Carolina.

Sept. 21, 1960

Robert W. Arnold, Jr., Waverly, Va., Allsbrook, Benton & Knott, Roanoke Rapids, for appellants.

Rodman & Rodman, Washington, for appellees.

DENNY, Justice.

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 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 * * *.'

In the case of MacRae v. Commerce Union Trust Co., 199 N.C. 714, 155 S.E. 614, 615, 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. [Citizens Nat.] 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. Citizens Nat. 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 husband 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 Ellsworth 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. Ellsworth. 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 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, ...