Taylor v. Nationsbank Corp., COA96-919

• Docket Nº: No. COA96-919
• Citation: 481 S.E.2d 358, 125 N.C.App. 515
• Case Date: March 04, 1997
• Court: Court of Appeal of North Carolina (US)

Page 358

481 S.E.2d 358 125 N.C.App. 515 Joseph McKinley Bryan TAYLOR, Individually, and as Guardian
Ad Litem of Joseph McKinley Bryan Taylor, Jr., and Martha
Caroline McKellar Taylor, Minors; and Mary Price Taylor,
Individually, Plaintiffs,
v.
NATIONSBANK CORPORATION, formerly N.C.N.B. National Bank of
North Carolina; E.S. Melvin; and Carole W. Fee
Bruce, Trustees, Defendants. No. COA96-919. Court of Appeals of North Carolina. March 4, 1997.

Smith, Follin & James by Norman B. Smith and Seth R. Cohen, Greensboro, and Prickett, Jones, Elliott, Kristol & Schnee by William Prickett and Heather D. Jefferson, Wilmington, for plaintiffs-appellants.

Smith, Helms, Mulliss & Moore, L.L.P. by James G. Exum, Jr., Larry B. Sitton and Larissa J. Erkman, Greensboro, for defendants-appellants.

EAGLES, Judge.

Plaintiffs argue that defendants' failure to verify their answer and motion for judgment on the pleadings is fatal to their appeal. However, plaintiffs failed to raise any objection at trial to the absence of verification and failed to assign error in the record on appeal. Accordingly, this issue is not properly preserved for appellate review. N.C.R.App. P. 10(a), (b)(1).

[125 N.C.App. 518] Plaintiffs assign error to the trial court's conversion, ex mero motu, of the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure to motions for summary judgment. However, plaintiffs bring forward no argument or authority in their briefs in support of this assignment of error. Accordingly, this assignment of error is deemed abandoned pursuant to Rule 28(a) of the North Carolina Rules of Appellate Procedure. N.C.R.App. P. 28(a).

The first issue before us is whether the plaintiffs were beneficiaries under the trust agreement at the time they filed their complaint. Defendants contend that by accepting the specific cash bequests prior to filing their complaint, adult plaintiffs no longer had any continuing present or future interest in the corpus of the trust, and therefore, were no longer owed any duties as trust beneficiaries. Also, defendants contend that legal title in the minor plaintiffs' specific cash bequests passed from the trust prior to the filing of the complaint and vested in separate trusts, and therefore, the minor plaintiffs now have only a continuing interest in the separate trusts and not an interest in the trust in dispute. Accordingly, defendants urge that plaintiffs do not have the status of trust beneficiaries.

No decisions or statutes in North Carolina have defined "beneficiary." Although North Carolina has not adopted the Uniform Probate Code as such, it has relied on it as persuasive authority in In re Estate of Francis, 327 N.C. 101, 108, 394 S.E.2d 150, 155 (1990). Uniform Probate Code, U.L.A. § 1-201(3) (1996), defines a trust beneficiary as including "a person who has present or future interest, vested or contingent" in the trust property. See Restatement (Second) of Trusts, § 3 (1959) (a beneficiary is a person for whose benefit property is held in trust). This definition of beneficiary does not deal with the status of beneficiaries who have already received their bequests. Understandably, only a beneficiary may profit from a trust. Moreover, once beneficiaries receive their undisputed interest in the trust, their

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interest in the trust terminates. However, here it is undisputed that plaintiffs were each named beneficiaries in the trust documents. Furthermore, plaintiffs seek to view trust documents because they question the terms of the trust from which their specific bequests came. Therefore, they are by no means like mere strangers to the trust as defendants suggest. We hold that plaintiffs' mere receipt of cash bequests from a trustee does not terminate their status as beneficiaries where, as here, the plaintiffs were named as beneficiaries in the trust documents and they ask to view the trust documents[125 N.C.App. 519] because they question the terms of the trust from which their bequest came.

We now consider whether plaintiffs as beneficiaries were entitled to view the "Second Restated and Amended Revocable Trust Agreement," dated 29 June 1990, and the "First Amendment to Second Restated and Amended Revocable Trust Agreement," dated 8 December 1992.

Defendants contend that plaintiffs are estopped from asserting that they are entitled to view the trust documents on the grounds that " 'a party will not be allowed to accept benefits which arise from certain terms of the contract and at the same time deny...