Wachovia Bank & Trust Co., N.A. v. Sevier , 41 N.C. App. 762 ( 1979 )

255 S.E.2d 636 (1979) 41 N.C. App. 762

WACHOVIA BANK AND TRUST COMPANY, N.A., Trustee,
v.
Susan Baker SEVIER et al.

No. 7821SC859.

Court of Appeals of North Carolina.

June 19, 1979.

Womble, Carlyle, Sandridge & Rice by Charles F. Vance, Jr., and Elizabeth L. Quick, Winston-Salem, for plaintiff-appellee.

C. Edwin Allman and Michael D. West, Winston-Salem, for defendant-appellee Susan Baker Sevier.

Gordon W. Jenkins, Winston-Salem, guardian ad litem, appellant.

PARKER, Judge.

The judgment in this case must be reversed. The trial court erred in concluding that Susan Baker Sevier is the sole beneficiary of the trust.

Where by the terms of the trust it is provided that the income shall be paid to the settlor for life and on his death the income or principal shall be paid to a designated third person, the settlor of course is not the sole beneficiary of the trust. So also where it is provided that on his death the principal shall be paid to his children or to his issue, he is not the sole beneficiary of the trust. This is true even though the settlor reserves a general power of appointment by deed or by will by the exercise of which he could exclude his children or issue. (Emphasis added.)

II Scott on Trusts (3d ed.) § 127.1, p. 986-87.

The living issue of Susan Baker Sevier possess an interest in the trust principal which is made contingent rather than negated by settlor's retention of a general power of appointment by will over the trust property. McRae v. Trust Co., 199 N.C. 714, 155 S.E. 614 (1930).

A trust may be terminated only upon the unanimous effective consent of all parties possessing an interest in it. Trust Co. v. Laws, 217 N.C. 171, 7 S.E.2d 470 (1940). The unanimous effective consent required for termination of a trust cannot be obtained in this case.

Effective consent may be given by a beneficiary in being, competent, and possessing an indefeasibly vested interest in the trust estate. Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621 (1943); Starling v. Taylor, 1 N.C.App. 287, 161 S.E.2d 204 (1968). In this case, effective consent to the termination of the trust may not be given at this time by the settlor's children and grandchildren because none possess an indefeasibly vested interest in the trust estate. In addition, the settlor's minor grandchildren are legally incapable of giving consent, and issue not yet in being may acquire a vested interest upon the settlor's death.

G.S. 39-6 is not applicable to this case. G.S. 39-6 provides

The grantor, maker or trustor who has heretofore created or may hereafter create a voluntary trust estate in real or personal property for the use and benefit of himself . . . with a future contingent interest to some person or persons not in esse or not determined until the happening of a future event may at any time, prior to the happening of the contingency vesting the future estates, revoke the grant of the interest to such person or persons not in esse or not determined by a proper instrument to that effect . . . provided, further, that this section shall not apply to any instrument hereafter executed creating such a future contingent interest when said instrument shall expressly state in effect that the grantor, maker, or trustor may not revoke such interest. (Emphasis added.)

The statute was amended by the addition of the proviso quoted above at 1943 Session Laws, ch. 437 effective 4 March 1943. The trust instrument in this case was executed 30 September 1943. Therefore, the statute's applicability to this trust is governed by the proviso.

It is difficult to imagine how the settlor could have stated more clearly that the trust was irrevocable than she did in Section 5 of the trust instrument. We hold that by Section 5 the settlor made the trust irrevocable and that the proviso of G.S. 39-6 quoted above makes G.S. 39-6 inapplicable to this case.

The judgment appealed from is

Reversed.

VAUGHN and HARRY C. MARTIN, JJ., concur.