Moore v. Smith

BRITT, Judge.

Although defendant excepted to several of the findings of fact, she has brought forward and argued only her exception to finding 22. That being true, all findings of fact except 22 are assumed to be correct and supported by the evidence. 1 Strong, N. C. Index 3d, Appeal and Error § 28.1. Rule 10, Rules of Appellate Procedure, 287 N.C. 671, 698 (1975).

In finding 22 the court found as a fact that defendant did not pay any actual money to Mrs. Hoy or forgive any indebtedness as consideration for the conveyance of the real property in question. Defendant contends this finding is not supported by any evidence. We disagree with this contention. In her testimony (R p 73) defendant stated: “Neither I nor my husband actually paid any money to Mrs. Hoy for these conveyances. ...” She further testified (R p 60) : “When she deeded me the house she didn’t owe me any money”.

We hold that finding of fact 22 is fully supported by evidence.

Although defendant excepted to all of the trial court’s conclusions of law except conclusion 3, she has not preserved her exceptions to conclusions 1 and 2; therefore, those exceptions are deemed abandoned. Rule 10, Rules of Appellate Procedure, supra.

Defendant contends that the trial court erred in making •conclusions of law 4, 5, 6, 7 and 8. We find no merit in this contention.

The basic conclusions of law made by the trial court are that (1) the conveyance of the property to defendant was a gift, (2) the conveyance or sale was not authorized, and (3) the conveyance was not necessary for the support of Mrs. Hoy.

A voluntary conveyance of land from one person to another, made gratuitously, and not upon any consideration of blood or money or other thing of value, is a gift. Black’s Law Dictionary, 817 (4th ed. 1951), citing 2 Bl. Comm. 440 and other authorities. Admittedly, Mrs. Hoy was not related by blood to defendant. As pointed out above, the finding of fact that defendant did not pay any money or forgive any indebtedness as consideration for the conveyance is amply supported by the evidence. Furthermore, the evidence is replete with the term “give” as illustrated by the following statement of defendant: “ . . . she (Mrs. Hoy) said she would give me this house,, says honey I know I’m not paying you enough, I don’t need this house, I’m gonna give you this house, on North Street, I would rather you would have it than anybody else because I had been a mother to her.”

Whether the conveyance in question is viewed as a gift or a sale, we think the evidence and the findings of fact support the trial court’s conclusions of law that it was not authorized. In 76 Am. Jur. 2d, Trusts § 438, pp. 657-8, we find: “A power of sale conferred upon a trustee does not in general authorize an alienation of any character other than a sale. Granting of the power to sell usually does not authorize a gift of the trust property. Nevertheless, it has sometimes been held that a gift of trust property by the trustee could be properly made where such gift was beneficial to the estate. ...” See also Annot., 21 A.L.R. 3d 801 (1968). Since the “estate” in the case at hand included plaintiffs as well as defendant, it cannot be said that a gift of the subject property by Mrs. Hoy was beneficial to the estate of J. H. Moore.

“The relationship of a trustee to the cestui que trust is unquestionably a fiduciary one, requiring the trustee to administer the trust faithfully for the benefit of the cestui que trust. ...” 76 Am. Jur. 2d, Trusts § 111, p. 356. Although in effect Mrs. Hoy was trustee for herself, plaintiffs were also cestuis que trust and Mrs. Hoy had a duty to them.

While the will in question granted Mrs. Hoy as trustee broad powers in the use of the subject property, her power was not unlimited. “However large may be the powers with which the trustee is invested, they are all to be exercised only for the purpose of effectuating the trust; and when it appears that such powers are perverted to the detriment of the cestui que trust, the court will promptly interpose its protective authority.” Lightner v. Boone, 222 N.C. 205, 209, 22 S.E. 2d 426, 428 (1942), Chief Justice Stacy quoting from Albright v. Albright, 91 N.C. 220 (1884).

Although the facts in Morris v. Morris, 246 N.C. 314, 98 S.E. 2d 298 (1957), are quite different from those in the case at hand, we think the holding in that case provides some guidance here. In Morris, the testator left the following will: “Being of sound mind I hereby bequeath to my wife Phyllis Lee Morris all of (my) property both real and personal to provide for my son Richard Lee Morris and herself S/ Richard Morris, Dec. 30/1954.” The Supreme Court held that the wife took an estate in trust for the benefit of herself and son and that she had no power to sell the real estate except as authorized by the court upon a showing that the personal estate and rents were insufficient to support the son and herself.

It is true that Mrs. Hoy was not required to obtain permission from the court to sell real estate belonging to the trust. Nevertheless, in making a sale, she had to consider beneficiaries of “the estate” other than herself and the court is available to pass upon her action.

Jury trial having been waived, His Honor was the trier of the facts and we think his findings fully support his conclusions of law.

The judgment appealed from is

Affirmed.

Judges Vaughn and Arnold concur.