Witherington v. Herring

• Decision Date: 06 March 1906
• Citation: 53 S.E. 303,140 n. c. 495
• Court: North Carolina Supreme Court
• Parties: WITHERINGTON. v. HERRING et al.

53 S.E. 303

140 n. c. 495

WITHERINGTON.

v.HERRING et al.

Supreme Court of North Carolina.

March 6, 1906.

1. Trusts — Personal Property—Declaration.

The declaration of a trust in personalty need not be in writing, but, if in writing, may be contained in letters or other informal instruments.

[Ed. Note.—For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 17, 25-28.]

2. Same.

Testator wrote defendant, his brother, to retain means of the writer which defendant had on hand until testator was able to think and act further, and, if he never did, to use the same as defendant should see proper as "in the first arrangements made, " which were contained in a letter by which testator gave to defendant the care and custody of a natural child, and directed that until testator gave further instructions defendant should hold $1,000 and what was left of another fund for the support of the child, in case of testator's death, for such time as it would hold out. Held, that such writings were sufficient to constitute a trust of the fund for the benefit of the child.

3. Same—Power of Revocation.

Where a power of revocation reserved at the time of the creation of a trust was never exercised during the life of the donor, the trust was not affected thereby.

Appeal from Superior Court, Wilson County; Cooke, Judge.

Action by M. S. Witherington against N. B. Herring and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Mark Squires, Shepherd & Shepherd, and Aycock & Daniels, for appellant.

H. G. Connor, Jr., F. A. Woodard, and C. E. Mc-Cullen, for appellee.

CLARK, C. J. W. A. Herring, resident in Mississippi, assumed the care, education, and support of his natural child, which through his brother, the defendant, Dr. N. B. Herring, he placed in the custody of a lady in this state. There came into the hands of said defendant the sum of $1,500, which he had collected for W. A. Herring, in regard to which the latter wrote Dr. Herring, 19th April, 1902: "Retain what means of mine you have on hand until I am able to think and act further, and, if I never do, use as you see proper as in the first arrangements made." Again on 13th September 1902, W. A. Herring wrote Dr. N. B. Herring in regard to the care and custody of the child, and added: "In the meantime, until I give further instructions, hold the sum, $1,000, and what of the first fund is left, for the support of the child, in case of my death, for such a time as it may hold out." In January, 1903, W. A. Herring died without having given any further instructions, and, N. B. Herring having already disposed of part of this fund, according to his instructions, in the support and care of the child, there was in his hands at the death of W. A. Herring $868.97 un-imbursed. In the first item of his will the latter mentions this child, and states that he has supported her from her birth, and will continue to do so if he lives; but, if he should die first, he turns over the care and custody of the child to his wife, and requests her to carry out his wishes in regard to the child, and after bequeathing and devising certain property to his wife there is a residuary clause in the...