In re Estate of Washburn

• Decision Date: 17 June 2003
• Docket Number: No. COA02-1029.,COA02-1029.
• Citation: 581 S.E.2d 148,158 NC App. 457
• Court: North Carolina Court of Appeals
• Parties: In re the ESTATE OF Vera Yarborough WASHBURN, Deceased.

581 S.E.2d 148

158 NC App. 457

In re the ESTATE OF Vera Yarborough WASHBURN, Deceased.

No. COA02-1029.

Court of Appeals of North Carolina.

June 17, 2003.

Deaton & Biggers, by A. Susan Biggers, Shelby, for trustee appellants.

Essex Richards, P.A., by G. Miller Jordan, Lisa T. Kelly, and James C. Fuller; and Leslie C. Rawls, Charlotte, for co-executor appellants.

BRYANT, Judge.

Jerry Scruggs (Scruggs) and John Cabiness (collectively the trustees) appeal an order and judgment entered 7 January 2002 distributing the assets of Vera Yarborough Washburn (Washburn) between her estate and a trust established by her prior to her death. Sylvia E. Hutchins and J.D. Champion, the co-executors of Washburn's estate, also appeal from the January 7 order.

In this order, the trial court made the following undisputed findings:

1. [Washburn] ... died on October 23, 2000.

2. On December 22, 2000, the Cleveland County Clerk of Superior Court probated [her] Last Will and Testament....

3. On December 22, 2000, Sylvia Hutchins and J.D. Champion, niece and nephew, respectively, qualified as Co-Executors of the Estate of ... Washburn.

4. On September 16, 1999, ... Washburn executed an Irrevocable Trust Agreement (hereinafter "Trust") appointing [the trustees].

5. Accompanying the Trust agreement was an "Assignment of Assets to Trust"..., which provides in part that all common stock, household furnishings and appliances, $550,000.00 in cash and an Oldsmobile automobile go to the Trust.

6. During October and November 1999, over $590,000.00 in funds [were] transferred from ... Washburn to bank accounts in the name of the Trust. At the time of ... Washburn's death, a total of over $612,000.00 had been received in trust accounts at Centura Bank from deposits and earnings.

7. At the time of her death, ... Washburn was the record owner of two Branch Banking and Trust [ (BB & T) ] stock certificates totaling 27,016 shares, to wit:

a. BB & T stock certificate No. BBT080224 ... for 13,508 shares, and b. BB & T stock certificate No. BBT093753 ... for 13,508 shares.

8. On the reverse side of stock certificate No. BBT080224 ... appears the signature of ... Washburn indicating a transfer on October 3,1999[ ] of the stock certificate to the [t]rustees.

9. The signature of ... Washburn on stock certificate No. BBT080224 ... did not contain a "signature guaranteed" certification.

10. The trustees took possession of stock certificate No. BBT080224....

11. At the time of her death, ... Washburn was in possession of stock certificate No. BBT093753 ..., which was never delivered to the trustees.

12. In February or March 2001, following the death of ... Washburn, the trustees located BB & T stock certificate No. BBT093753 ... in ... Washburn's residence. The reverse side of the stock certificate was blank, was not completed for transfer, was not signed by ... Washburn nor was a signature guaranteed.

13. [Prior to Washburn's death,] [t]he trustees in November 1999 requested [BB & T] transfer ownership of all BB & T stock in the name of ... Washburn to the Trust based upon the terms of the Trust agreement and assignment.

14. [BB & T] refused to make the transfer on its books on that basis and notified the trustees and ... Washburn that the proper procedure for the transfer of the certificates on the records of the corporation [] would be to deliver to BB & T the duly executed stock certificates transferring ownership to the Trust. In the event of a lost certificate, ... Washburn would have to make an application for a replacement certificate and post an indemnity bond before the stock could be transferred to the Trust.

15. ... Washburn and the trustees made no further attempts with [BB & T] to transfer any of the stock in the name of... Washburn to the Trust, pending trying to locate the certificate.

16. ... Washburn continued as BB & T's record owner of the two BB & T stock certificates ... and received in her name dividends from her stock totaling some $17,020.08 from September 16, 1999[ ] to the date of her death on October 23, 2000, which were deposited in trust bank accounts.

17. At the time of her death, ... Washburn was the record title owner of the two BB & T [stock] certificates....

18. The household furnishings and appliances remained in the possession of ... Washburn from the date of the Trust until her death.

19. The Oldsmobile automobile title was not changed to the Trust and the vehicle remained in the possession of ... Washburn from the date of the Trust until her death.

20. On September 18, 2000, ... Washburn executed a deed of her residence to the trustees, which was filed at the register of deeds.

Based on these findings, the trial court concluded:

1. The assignment attached to the Trust agreement is insufficient to transfer all assets listed to the Trust.

2. [Washburn], with the requisite intent and delivery, did place in the [T]rust the following property:

A. All funds on deposit in trust accounts at Centura Bank as of October 23, 2000, and $50.00 [from the sale of an appliance in Washburn's residence after her death] deposited February 14, 2001.

B. The BB & T stock certificate No. BBT080224 representing 13,508 shares of BB & T stock.

C. All her household furnishings and appliances located in her home ....

D. [Washburn's] residence....

3. Funds transferred to the Washburn [T]rust, including the $1,270.00 cash found in the decedent's home, or funds received after October 23, 2000, [totaling $11,847.11] are assets of the decedent's estate, except that one-half of each BB & T stock dividend check will belong to the Washburn [T]rust and one-half of each BB & T stock dividend check will belong to the decedent's estate until the certificates are divided on the BB & T corporate records between the [T]rust and the decedent's estate and dividend checks are issued accordingly.

4. The assets of ... Washburn not transferred to the Trust are assets of the decedent's estate.

The record also contains a power of attorney issued by Washburn to allow Scruggs to act, inter alia, as her agent with respect to her banking transactions, tax matters, personal affairs, estate transactions, and gifts to charities.

The issues are whether: (I) the stock certificates, household furnishings, and appliances were properly conveyed to the Trust and thus became trust assets and (II) the deposit of funds into the Trust account by Scruggs as Washburn's power of attorney was proper.

I

By definition, the creation of a trust must involve a conveyance of property, and before property can be said to be held in trust by the trustee, the trustee must have legal title.... Aside from the situation in which a settlor of a trust declares himself or herself trustee, separation of the legal and equitable interests must come about through a transfer of the trust property to the trustee.

90 C.J.S Trusts § 68, at 193-94 (2002) (footnotes omitted). Accordingly, "the owner must surrender control of the property which he or she has subjected to the alleged trust." 90 C.J.S. Trusts § 70, at 196; see also Wescott v. Bank, 227 N.C. 39, 42, 40 S.E.2d 461, 463 (1946) ("there must be a transfer of the title by the donor or settl[o]r for the benefit of another"); Baxter v. Jones, 14 N.C.App. 296, 307, 188 S.E.2d 622, 628 (1972) (citation omitted) ("`[i]n order to create an enforceable trust it is necessary that the donor or creator should part with his interest in the property to the trustee by an actual conveyance or transfer, and, where the creator has legal title, that such title should pass to the trustee'"). "[I]f the owner of property makes a conveyance inter vivos of the property to another person to be held by him in trust for a third person and the conveyance is not effective to transfer the property, no trust of the property is created." Restatement (Second) of Trusts § 32 (1959) (emphasis added).

BB & T Stock

The trustees and the estate claim the trial court erred by failing to assign both stock certificate No. BBT080224 (Certificate 1) and stock certificate No. BBT093753 (Certificate 2) to them. The trustees, in support of their position, contend that the "Assignment of Assets" executed contemporaneously with the Trust was sufficient to transfer both stock certificates to the Trust. We disagree.

In order to determine the proper transfer of legal title to a security, we must look to Article 8 of the Uniform Commercial Code governing investment securities. Under Article 8, "a valid transfer of a certificated security requires both the indorsement and delivery of the certificate by its holder to the transferee." Tuckett v. Guerrier, 149 N.C.App. 405, 410, 561 S.E.2d 310, 313 (2002) (citing N.C.G.S. §§ 25-8-301, -304 (1999)); see Russell M. Robinson, II, Robinson on North Carolina Corporation Law § 10.10, at 10-26 (7th ed.2002) [hereinafter Robinson] ("[t]he title to a share certificate, and to the shares represented thereby, is normally transferred by the delivery of the certificate to the transferee, either duly endorsed or with a separate document containing a written assignment or a power of attorney to transfer the shares"). An "`[i]ndorsement' means a signature that alone or accompanied by other words is made on a security certificate in registered form or on a separate document for the purpose of assigning, transferring, or redeeming the security." N.C.G.S. § 25-8-102(a)(11) (2001). Delivery, in turn, "occurs when: (1) [t]he [transferee] acquires possession of the security certificate; [or] (2) [a]nother person ... acquires possession of the security certificate on behalf of the [transferee]." N.C.G.S. § 25-8-301(a)(1)-(2) (2001). In this case, the parties do not contest that Washburn indorsed Certificate 1 by signing it and designating the "Vera Y. Washburn Trust Fund c/o Jerry R. Scruggs and John W. Cabiness, Trustees" as transferee in the allotted space on the certificate. The evidence is also clear that Certificate 1 was delivered to the trustees before...