{ "id": 11239267, "name": "FIRST UNION NATIONAL BANK, EXECUTOR OF THE ESTATE OF F. BERNARD INGOLD, Plaintiff v. FRANCES Y. INGOLD, PHOEBE INGOLD SPRATT, ALICE S. HERMAN, BARNEY M. SPRATT, DR. C. JEAN SPRATT, W. ANDREW SPRATT, individually and as guardian/custodian of THOMAS A. SPRATT (a minor), JENNIFER H. WARREN, Defendants", "name_abbreviation": "First Union National Bank v. Ingold", "decision_date": "1999-12-30", "docket_number": "No. COA99-270", "first_page": "262", "last_page": "267", "citations": [ { "type": "official", "cite": "136 N.C. App. 262" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "165 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "260" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 371", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555054 ], "year": 1969, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0371-01" ] }, { "cite": "235 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "428" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550408 ], "year": 1977, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0477-01" ] }, { "cite": "335 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "517" }, { "page": "517" }, { "page": "517" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 568", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524300 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "570" }, { "page": "570" }, { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0568-01" ] }, { "cite": "148 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "page": "45" }, { "page": "46-47", "parenthetical": "emphasis in original" }, { "page": "43", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "267 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558784 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "178" }, { "page": "181" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0173-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 31-43", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1999, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "281 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573123, 8573162, 8573104, 8573175, 8573144 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0315-02", "/nc/303/0315-04", "/nc/303/0315-01", "/nc/303/0315-05", "/nc/303/0315-03" ] }, { "cite": "277 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643753 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0654-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-258", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1996, "opinion_index": 0 } ], "analysis": { "cardinality": 571, "char_count": 12342, "ocr_confidence": 0.756, "pagerank": { "raw": 2.982330158572608e-07, "percentile": 0.8511102384733628 }, "sha256": "28a2fe31cc9de28151cc5c061a6194bc625e64ec26fc8f04c238677cf2e36621", "simhash": "1:5da365c1dce69e12", "word_count": 2113 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge JOHN concur." ], "parties": [ "FIRST UNION NATIONAL BANK, EXECUTOR OF THE ESTATE OF F. BERNARD INGOLD, Plaintiff v. FRANCES Y. INGOLD, PHOEBE INGOLD SPRATT, ALICE S. HERMAN, BARNEY M. SPRATT, DR. C. JEAN SPRATT, W. ANDREW SPRATT, individually and as guardian/custodian of THOMAS A. SPRATT (a minor), JENNIFER H. WARREN, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nDefendant Frances Y. Ingold (\u201cappellant\u201d) appeals the judgment of superior court wherein it determined F. Bernard Ingold\u2019s (\u201cdecedent\u201d) last will and testament (\u201cwill\u201d) had no effect on the administration of a trust agreement (\u201cIngold Trust\u201d) executed by decedent. We reverse, concluding that a general power of appointment was reserved by decedent in the Ingold Trust and it was exercised by the residuary clause in his will.\nThe present action was instituted by First Union National Bank (\u201cplaintiff\u2019) as executor of the decedent\u2019s estate seeking declaratory judgment under Article 26 of the General Statutes of North Carolina. Plaintiff alleged in its complaint that a trust executed by the decedent, when construed in conjunction with his will, created uncertainty as to the distribution of the trust assets. Appellant filed an answer also requesting construction of said documents, and requested that the court find that \u201cthe Last Will and Testament of F. Bernard Ingold [disposed] of the Ingold Trust Estate, thereby devising all the assets comprising said Trust Estate to Frances Y. Ingold.\u201d The remaining defendants filed a separate joint answer requesting that the court \u201center judgment construing the trust agreement . . . according to its terms.\u201d The matter came on for hearing on 3 December 1998. On 15 January 1999, the court entered judgment wherein it stated that the decedent\u2019s trust should continue in force as if his will had no effect.\nThe evidence submitted to the court indicates that paragraph 2B of the Ingold Trust states in part:\nUpon the death of the Grantor without his having provided for disposition of the Trust Estate by will and contrary to the provisions of this Agreement, the net income of the Trust Estate shall be paid to his wife, Frances Y. Ingold, in quarterly installments.\nUnder the trial court\u2019s ruling, this section would remain in force and appellant would only receive the net income of the trust estate in quarterly installments. The residuary clause in decedent\u2019s will provides:\nI will, devise and bequeath all of my property of every kind, sort and description, both real and personal, unto my wife, Frances Y. Ingold, absolutely and in fee simple.\nAppellant contends this devise exercised a power of appointment reserved by the decedent in paragraph 2B, resulting in the entire trust estate being devised to her. We agree.\nThe standard of review of a judgment rendered under the Declaratory Judgment Act is the same as in other cases. N.C. Gen. Stat. \u00a7 1-258 (1996). Thus, where a declaratory judgment action is heard without a jury and the trial court resolves issues of fact, the court\u2019s findings of fact are conclusive on appeal if supported by competent evidence in the record, even if there exists evidence to the contrary, and a judgment supported by such findings will be affirmed. Insurance Co. v. Allison, 51 N.C. App. 654, 277 S.E.2d 473, disc. review denied, 303 N.C. 315, 281 S.E.2d 652 (1981). Therefore, a judgment supported by findings based on any competent evidence must be affirmed.\nUnder our statutory code:\nA general devise of the real estate of the testator, or of his real estate in any place or in the occupation of any person mentioned in the will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper; and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property, described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.\nN.C. Gen. Stat. \u00a7 31-43 (1999) (emphasis added). N.C. Gen. Stat. \u00a7 31-43 \u201cis identical with \u00a7 27 of the English Wills Act of 1837 (7 Wm. IV & 1 Viet., Ch. 26).\u201d Trust Co. v. Hunt, 267 N.C. 173, 178, 148 S.E.2d 41, 45 (1966). The effect of both \u00a7 27 of the English Wills Act and N.C. Gen. Stat. \u00a7 31-43\nis that a general devise or bequest shall be construed to include any real or personal property which the testator may have power to appoint in any manner he may think proper and shall operate as an execution of such power unless a contrary intention appears in the will. A power to appoint in any manner the donee may think proper is a power upon which no restrictions are imposed \u2014 a general power.\nTrust Co. v. Hunt, 267 N.C. at 181, 148 S.E.2d at 46-47 (emphasis in original) (citation omitted). Citing N.C. Gen. Stat. \u00a7 31-43, this Court has stated: \u201cIn North Carolina and a minority of other states, a power of appointment upon which no restrictions are imposed is exercised by a residuary clause.\u201d In the Matter of: First Citizens Bank & Trust Co. v. Fleming, 77 N.C. App. 568, 570, 335 S.E.2d 515, 517 (1985). It is uncontroverted that the decedent\u2019s will contained a residuary clause. Accordingly, our inquiry will focus on whether or not a general power of appointment is contained in paragraph 2B of the Ingold trust.\nAppellees contend that paragraph 2B of the trust does not contain a power of appointment. Generally, a power of appointment is the power to dispose of property by deed or will. 62 Am. Jur. 2d Powers \u00a7 2 (1990). While \u201c[t]he donor and donee of a power of appointment cannot be the same person, ... it is not uncommon for a trust settlor to reserve to himself a power of appointment to be exercised by his own will at a later time.\u201d 62 Am. Jur. 2d Powers \u00a7 32 (footnotes omitted). Powers are ordinarily categorized as either general or special.\nGeneral powers of appointment are those authorizing the donee of the power to appoint anyone, including himself or his estate, and his creditors, although the mere fact that a donee of a power is free to select the beneficiary does not make the power a general one, where it does not appear that he may exercise the power during his lifetime for his own benefit. A power of appointment is said to be general when there is no restriction as to its exercise (except as to manner), the persons in whose favor it is to be exercised, or the amounts to be given to such persons.\nSpecial or limited powers of appointment are those in which the donee of the power is restricted to passing on the property to certain specified individuals, or to a specific class of individuals \u2014 other than himself or his estate \u2014 or to any beneficiaries except those specifically excluded, or in which the donee can exercise the power only for certain named purposes, or under certain conditions. Stated another way, a special power is one limited by excluding certain persons from taking under the power of disposition given the donee.\n62 Am. Jur. 2d Powers \u00a7 11 (1990) (footnotes omitted). \u201c \u2018A power is general where no restriction is imposed upon the donee as to the person or persons to whom he may appoint or the amount which each person shall receive.\u2019 \u201d Trust Co. v. Hunt, 267 N.C. at 176, 148 S.E.2d at 43 (citations omitted). Under the laws of this state, a power of appointment may be created not only by express words, but also by implication of law and, further, no technical language need be used. In Re Grady, 33 N.C. App. 477, 480, 235 S.E.2d 425, 428 (1977). The polar star which must serve as the guide for determining whether certain language creates a power of appointment is the intent underlying the settlor\u2019s inclusion of such language in the document:\n\u201cAn instrument, such as a deed or will, creating a power of appointment is to be interpreted so as to ascertain the intention of the donor and to give it effect unless some rule of law prevents. Effect should, if possible, be given to every word or clause in the instrument, so long as they are not inconsistent with the general intent of the instrument as a whole.\u201d 41 Am. Jur., Powers, \u00a7 9, p. 812.\nHowell v. Alexander, 3 N.C. App. 371, 376, 165 S.E.2d 256, 260 (1969).\nIn paragraph 2B of the Ingold Trust, the decedent in the present case specifically provided that he may appoint the entire trust estate by will and contrary to the trust provisions. The decedent imposed no restrictions on this reserved power. Therefore, the power reserved by the decedent was a general power of appointment. Looking at the four comers of the document, it does not reveal any contrary intent. Paragraph 10 of the trust states:\nDuring his lifetime the Grantor may, by written instrument filed with the Trastee, revoke this trust in whole or in part upon paying the sums due to the Trustee for its services hereunder or may by testamentary disposition revoke said trust in whole or in part.\nThus, it is evident that the decedent specifically intended the trust to be revocable during his life or by testamentary disposition. The intent in this paragraph coincides with the intent to reserve a general power of appointment in paragraph 2B.\nAs stated earlier, a power of appointment upon which no restrictions are imposed is exercised by a residuary clause. In the Matter of: First Citizens Bank & Trust Co. v. Fleming, 77 N.C. App. at 570, 335 S.E.2d at 517. The will does not indicate any intent not to exercise the power of appointment- reserved by decedent in the Ingold Trust. Likewise, the Ingold Trust does not indicate that the decedent was required to refer to the power reserved in paragraph 2B in order for it to be exercised. Thus, the rule that \u201cin order to exercise a power of appointment calling for specific reference to the power before the power may be exercised, some reference to the power must be made,\u201d In the Matter of: First Citizens Bank & Trust Co., 77 N.C. App. at 571, 335 S.E.2d at 517, is inapplicable to the present case.\nBased on the foregoing, we hold that the residuary clause of the decedent\u2019s will exercised the general power of appointment reserved by him in the Ingold Trust. Our review indicates that no competent evidence supports any other conclusion. Due to our holding, we need not reach appellant\u2019s second assignment of error.\nReversed and remanded.\nChief Judge EAGLES and Judge JOHN concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Tate, Young, Morphis, Bach & Taylor, by Wayne M. Bach and Kevin C. McIntosh, for plaintiff-appellee First Union National Bank.", "Sigmon, Clark, Mackie, Hutton & Hanvey, P.A., by William R. Sigmon and Stephen L. Palmer, for defendant-appellant Frances Y. Ingold.", "Patrick, Harper & Dixon, by Stephen M. Thomas, for defendant-appellees Phoebe Ingold Spratt, Alice S. Herman, Barney M. Spratt, Dr. C. Jean Spratt, W. Andrew Spratt, Debbie Darling Spratt as guardian ad litem of Thomas A. Spratt (a minor), and Jennifer H. Warren.", "Shirley H. Anthony, Guardian Ad Litem for the minor and unborn issue of defendant Phoebe Ingold Spratt, who did not otherwise have a guardian." ], "corrections": "", "head_matter": "FIRST UNION NATIONAL BANK, EXECUTOR OF THE ESTATE OF F. BERNARD INGOLD, Plaintiff v. FRANCES Y. INGOLD, PHOEBE INGOLD SPRATT, ALICE S. HERMAN, BARNEY M. SPRATT, DR. C. JEAN SPRATT, W. ANDREW SPRATT, individually and as guardian/custodian of THOMAS A. SPRATT (a minor), JENNIFER H. WARREN, Defendants\nNo. COA99-270\n(Filed 30 December 1999)\nWills\u2014 general power of appointment \u2014 residuary clause\u2014 trust assets\nEven though the general rule is that specific reference must be made to a power of appointment before the power may be exercised, the trial court erred in concluding decedent\u2019s will had no effect on the disposition of decedent\u2019s trust because the residuary clause of decedent\u2019s will exercised the general power of appointment reserved by him in the pertinent trust since: (1) a power of appointment upon which no restrictions are imposed is exercised by a residuary clause; (2) the will does not indicate any intent not to exercise the power of appointment reserved by the trust; and (3) the trust does not indicate that decedent was required to refer to the reserved power in order for it to be exercised.\nAppeal by defendant Frances Y. Ingold from judgment entered 15 January 1999 by Judge Loto Greenlee Caviness in Catawba County Superior Court. Heard in the Court of Appeals 25 October 1999.\nTate, Young, Morphis, Bach & Taylor, by Wayne M. Bach and Kevin C. McIntosh, for plaintiff-appellee First Union National Bank.\nSigmon, Clark, Mackie, Hutton & Hanvey, P.A., by William R. Sigmon and Stephen L. Palmer, for defendant-appellant Frances Y. Ingold.\nPatrick, Harper & Dixon, by Stephen M. Thomas, for defendant-appellees Phoebe Ingold Spratt, Alice S. Herman, Barney M. Spratt, Dr. C. Jean Spratt, W. Andrew Spratt, Debbie Darling Spratt as guardian ad litem of Thomas A. Spratt (a minor), and Jennifer H. Warren.\nShirley H. Anthony, Guardian Ad Litem for the minor and unborn issue of defendant Phoebe Ingold Spratt, who did not otherwise have a guardian." }, "file_name": "0262-01", "first_page_order": 296, "last_page_order": 301 }