Moore v. Jones
| Citation | 44 N.C.App. 578,261 S.E.2d 289 |
| Decision Date | 15 January 1980 |
| Docket Number | No. 7811SC227,7811SC227 |
| Parties | Grace T. MOORE v. E. Craig JONES, Jr., as Trustee of the "Ramie L. Moore Trust Fund," E. CraigJones, Jr., as Executor of the Estate of Ramie Lawrence Moore, Mount OliveCollege Incorporated, Branch Chapel Free Will Baptist Church, Selma Troop # 32of the BoyScouts of America, Percy L. Moore, J. Allie Moore, Effie J. Davis, Elizabeth M.Lynch, Joseph A. Moore, Jr., Frances T. Moore, James L. Creech and Clarence M.Moore. |
| Court | Court of Appeal of North Carolina (US) |
Young, Moore, Henderson & Alvis by B. T. Henderson, II, and R. Michael Strickland, Raleigh, for plaintiff-appellee.
Corbett & Corbett, by Albert A. Corbett, Jr., Smithfield, for defendants-appellants.
E. Craig Jones, Jr., Selma, Executor and Trustee, defendant-appellant, pro se.
In this State a valid trust may be created even though the settlor retains both a life estate and the power to revoke or modify the trust. Moreover, the coupling of such retained rights and powers in an otherwise valid Inter vivos trust will not invalidate the trust as an attempted testamentary disposition when, as here, the trust instrument was not executed in the manner required for execution of a valid will. Ridge v. Bright, 244 N.C. 345, 93 S.E.2d 607 (1956). Here, there was a written trust agreement signed and acknowledged both by the settlor and the trustee. This instrument unequivocally expressed the settlor's intention to create a trust. The trust, consisting of stocks, bonds, and cash deposits, was clearly identified and was transferred into the custody of the trustee. The duties and powers of the trustee with respect to the trust assets were expressly defined. The beneficiaries were clearly designated and their respective interests were expressly set forth. Thus, the trust met all prerequisites for a valid trust under the laws of this State. See Finch v. Honeycutt, 246 N.C. 91, 97 S.E.2d 478 (1957); Starling v. Taylor, 1 N.C.App. 287, 161 S.E.2d 204 (1968). Therefore, we agree with the trial court's conclusion that the trust was valid. The question remains as to its effect upon plaintiff's rights as surviving spouse granted her under Article 1 of G.S. Ch. 30.
The statutory right to dissent granted the surviving spouse is defined by G.S. 30-1 which reads in pertinent part:
(a) A spouse may dissent from his deceased spouse's will in those cases where the aggregate value of the provisions under the will for benefit of the surviving spouse, when added to the value of the property or interests in property passing in any manner outside the will to the surviving spouse as a result of the death of the testator:
(2) Is less than one half of the deceased spouse's net estate in those cases where the deceased spouse is not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent.
Once the right to dissent under G.S. 30-1 has been established, the effect of such dissent is prescribed by G.S. 30-3(a), which, insofar as pertinent to this appeal, is as follows:
(a) . . . if the deceased spouse is not survived by a child, children, or any lineal descendants of a deceased child or children, or by a parent, the surviving spouse shall receive only one half of the deceased spouse's net estate as defined in G.S. 29-2(5), which one half shall be estimated and determined before any federal estate tax is deducted or paid and shall be free and clear of such tax.
G.S. 29-2(5), to which we are directed by G.S. 30-3(a), provides the following definition:
(5) "Net estate" means the estate of a decedent, exclusive of family allowances, costs of administration, and all lawful claims against the estate.
We agree with the trial court's conclusion that these statutes express the public policy of this State. The question presented by this appeal is whether that public policy or the Inter vivos trust created by plaintiff's husband which circumvents that public policy should prevail. Expressed somewhat differently, the question is whether the assets held in a trust over which the settlor retained such extensive powers at the time of his death should properly be considered as part of his estate for purposes of (1) determining plaintiff's right to dissent under G.S. 30-1, and (2) computing the share of his estate to which ...
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