Williams v. Mullen

Court of Appeals of North Carolina
Williams v. Mullen, 228 S.E.2d 512 (1976)
31 N.C. App. 41; 1976 N.C. App. LEXIS 1899
Britt, Hedrick, Martin

Williams v. Mullen

Opinion

BRITT, Judge.

Defendants assign as error the failure of the trial court to grant their motions for directed verdict interposed at the close of plaintiff’s evidence and renewed at the close of all the evidence. We think the assignment has merit.

The question presented is whether the evidence was sufficient to show that intestate created an express, oral trust in the *45 bonds for the use and benefit of plaintiff. We hold that it was not.

“ ‘Express,’ or as they sometimes are called, ‘direct,’ trusts are those trusts intentionally created by the direct and positive act of the settlor, by some writing, deed, or will, or an oral declaration. ...” 76 Am. Jur. 2d, Trusts § 15, p. 263. The essentials of a valid express trust are: (1) sufficient words to create it; (2) a definite subject matter; (3) an ascertained object; and (4) designated beneficiaries. Lee, North Carolina Law of Trusts § la, p. 2.

Concerning an express parol trust, the North Carolina Supreme Court has stated that: “The declaration of a trust in personalty is not required to be in writing, and if in writing, it may be contained in letters or other writings. ... No technical terms need be used. It is sufficient if the language used shows the intention to create a trust, clearly points out the property, the disposition to be made of it, and the beneficiary.” Witherington v. Herring, 140 N.C. 495, 497, 53 S.E. 303, 304 (1906). “It is well established in this jurisdiction that a trust in personalty may be created by parol, and that no particular form of words is required for the purpose, and that the same will be recognized and enforced Whenever it is Manifest that a Trust is Intended. . . .” (Emphasis added.) Rousseau v. Call, 169 N.C. 173, 85 S.E. 414 (1915).

Where competent evidence is introduced to establish a parol trust, it is the duty of the trial court to submit it to the jury, and it is for the jury to say whether the evidence is “clear, strong, cogent and convincing.” Taylor v. Wahab, 154 N.C. 219, 70 S.E. 173 (1911). In the instant case, a sufficient intention to create a trust was not shown by the evidence. “The intention to create a trust must be sufficiently expressed, and the declaration of trust must show the intention with reasonable certainty. It must be clear that a trust was intended. It is necessary that there be a definite, unequivocal, explicit declaration of trust, or circumstances which show with reasonable certainty . . . that a trust was intended to be created. The declaration must show a desire to pass benefits through the medium of a trust and not through some related or similar instrumentality.” 89 C.J.S., Trusts § 43, pp. 776-778.

In Buffaloe v. Barnes, 226 N.C. 313, 38 S.E. 2d 222 (1946), the testator purchased certain stock with his own funds and *46 had the certificates issued to himself and his niece as joint tenants with the rights of survivorship. At his death testator was in exclusive possession of the stock certificates. The court held that the transaction was not sufficient to create a gift or a trust. As stated by Professor Lee, “equity will not convert an imperfect gift into a declaration of trust.”. Lee, North Carolina Law of Trusts § Id, p. 4. Intestate in the present case at most made an ineffective gift of the bonds.

In Wescott v. Bank, 227 N.C. 39, 40 S.E. 2d 461 (1946), the decedent attempted to create a trust fund for his grandr father by the deposit of money in a savings account in decedent’s name. The court stated (p. 42) : “Here the essentials of an express trust are lacking. There was no evidence of a transfer or assignment of a present beneficial interest in the fund deposited in the defendant bank. There was only evidence of a desire that in the event of the depositor’s death the grandfather should be the beneficiary.”

In Sinclair v. Travis, 231 N.C. 345, 353, 57 S.E. 2d 394, 400 (1949), the court quoted with approval from Wescott as follows: “An express trust ... is a fiduciary relationship with respect to property, subjecting the person by whom the propr erty is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it . .•. The term signifies the relationship resulting from the equitable ownership of property in one person entitling him to certain duties on the part of another person holding the legal title ... To constitute this relationship there must be a transfer of the title by the donor or settlor for the benefit of another.”

The trial court erred in denying defendants’ motion for directed verdict. The question with respect to plaintiff’s interest in the $2,000 bond because of its issuance to intestate or plaintiff was not raised on this appeal, therefore, we render no decision on that question.

For the reasons stated, the judgment is

Reversed.

Judges Hedrick and Martin concur.

Reference

Full Case Name
LOTTIE LEE WILLIAMS v. MARGARET LEE MULLEN and JAMES L. TALTON, Co-Administrators of the Estate of Lucy Lee Barbee
Cited By
4 cases
Status
Published
Syllabus
1. Trusts 13 — express trust — essentials The essentials of a valid express trust are: (1) sufficient words to create it; (2) a definite subject matter; (3) an ascertained object; and (4) designated beneficiaries. 2. Trusts 13 — parol trust in personalty — enforceability It is well established in this jurisdiction that a trust in personalty may be created by parol, and that no particular form of words is required for the purpose, and that the same will be recognized and enforced whenever it is manifest that a trust is intended.Page 42 3. Trusts 19 — oral express trust alleged — insufficient intention shown In an action to recover certain bonds or proceeds therefrom allegedly due plaintiff under an oral express trust, the trial court erred in failing to grant defendants' motion for directed verdict, since the evidence did not show a sufficient intention to create a trust, but at most tended to show an ineffective gift of the bonds by intestate to plaintiff.