{ "id": 8554262, "name": "MARGIE ECKLIN MOORE, Sole Beneficiary of the \"Marital Trust,\" under Will of K. E. MOORE, Deceased v. WACHOVIA BANK AND TRUST COMPANY, Trustee, under Will of K. E. MOORE; and OPAL MOORE RAKOWSKI, et al.", "name_abbreviation": "Moore v. Wachovia Bank & Trust Co.", "decision_date": "1975-02-19", "docket_number": "No. 742SC908", "first_page": "675", "last_page": "677", "citations": [ { "type": "official", "cite": "24 N.C. App. 675" } ], "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": "101 S.E. 2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626896 ], "opinion_index": 0, "case_paths": [ "/nc/247/0310-01" ] }, { "cite": "62 S.E. 2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596672 ], "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0001-01" ] }, { "cite": "194 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "282 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568976 ], "opinion_index": 0, "case_paths": [ "/nc/282/0676-01" ] }, { "cite": "7 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601743 ], "opinion_index": 0, "case_paths": [ "/nc/217/0171-01" ] } ], "analysis": { "cardinality": 321, "char_count": 4643, "ocr_confidence": 0.588, "pagerank": { "raw": 2.701012047527744e-07, "percentile": 0.8284676056403288 }, "sha256": "10e8bd5e01b076f44e3f8c67ae2fa72e80175c3f9f2f8bfefae96918327d8c52", "simhash": "1:3d23726aa66778d5", "word_count": 756 }, "last_updated": "2023-07-14T19:54:40.635509+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Clark concur." ], "parties": [ "MARGIE ECKLIN MOORE, Sole Beneficiary of the \u201cMarital Trust,\u201d under Will of K. E. MOORE, Deceased v. WACHOVIA BANK AND TRUST COMPANY, Trustee, under Will of K. E. MOORE; and OPAL MOORE RAKOWSKI, et al." ], "opinions": [ { "text": "BROCK, Chief Judge.\nPlaintiff\u2019s sole assignment of error challenges the entry of the judgment. Plaintiff contends that the trust was created for her benefit, that she possesses the only beneficial interest, and that the trust is therefore terminable at her will. We do not believe that the facts support this contention. \u00a1\n\u201cA court of equity may have the power to terminate a trust and distribute the trust property prior to the happening of the contingency prescribed by the trustor, but only when such action is necessary or expedient.\u201d 7 Strong, N. C. Index 2d, Trusts, \u00a7 10 (1968) ; Wachovia Bank & Trust Co. v. Laws, 217 N.C. 171, 7 S.E. 2d 470; Davison v. Duke University, 282 N.C. 676, 194 S.E. 2d 761. \u201c[T]he condition or emergency asserted must be one not contemplated by the testator and which, had it been anticipated, would undoubtedly have been provided for; . . . \u201d Carter v. Kempton, 233 N.C. 1, 6, 62 S.E. 2d 713. Although plaintiff\u2019s challenge stems from her dissatisfaction with the consideration and benefits of the trust, and with the administration of the trust, we cannot say that these are conditions or emergencies which were not contemplated by the testator. Trusts will not be modified on technical objections merely because interested parties\u2019 welfare will be served thereby. Carter v. Kempton, supra. Furthermore, the grandchildren of the tester have, under the terms of the will, an expectancy in the marital trust. As interested parties, the trust cannot be terminated without their consent. Solon Lodge v. Ionic Lodge, 247 N.C. 310, 101 S.E. 2d 8. \u201cIt is not the province of the courts to substitute their judgment or the wishes of the beneficiaries for the judgment and wishes of the testator. The controlling objective is to preserve the trust and effectuate the primary purpose of the testator.\u201d Carter v. Kempton, supra at 6. The trial court\u2019s entry of judgment dismissing the action was correct.\nAffirmed.\nJudges Britt and Clark concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Frazier T. Woolard, for the plaintiff-appellant.", "Mayo & Mayo, by William P. Mayo, and Gaylord and- Singleton, by L. W. Gaylord, Jr., and Danny McNally, for defendant-appellee Wachovia Bank and Trust Company, N.A.", "Fred Holscher, for the defendants-appellee, beneficiaries of the residuary estate." ], "corrections": "", "head_matter": "MARGIE ECKLIN MOORE, Sole Beneficiary of the \u201cMarital Trust,\u201d under Will of K. E. MOORE, Deceased v. WACHOVIA BANK AND TRUST COMPANY, Trustee, under Will of K. E. MOORE; and OPAL MOORE RAKOWSKI, et al.\nNo. 742SC908\n(Filed 19 February 1975)\nTrusts \u00a7 10\u2014 termination of trust \u2014 conditions and emergencies not contemplated by testator\nThe condition or emergency asserted in an action to terminate a \u2022 trust must be one not contemplated by the testator which, had it been anticipated, would undoubtedly have been provided for; plaintiff\u2019s dissatisfaction with the consideration, benefits, and administration of a marital trust were not conditions or emergencies which were not contemplated by the testator, and the trial court properly dismissed the action.\nAppeal by plaintiff from James, Judge. Judgment entered 13 August 1974 in the Superior Court, Beaufort County. Heard in the Court of Appeals 20 January 1975.\nK. E. Moore died testate on 30 May 1969, leaving an estate valued at approximately $400,000.00. The will was probated on 6 June 1969, and Wachovia Bank and Trust Company, N.A., was appointed trustee pursuant to the terms of the will on 18 May 1971. Item III of the will created a marital trust of one-half the adjusted gross estate. The net income was to be paid over to the settlor\u2019s widow, the plaintiff in this action, together with as much of the principal as the trustee, in its discretion, deemed needful and desirable. The plaintiff was given the power to appoint the remaining principal and income of the trust by will. Failing the exercise of this power of appointment, the marital trust assets are to be combined with the residuary trust, which is also created by the will and whose beneficiaries include the settlor\u2019s daughter and grandchildren.\nThe plaintiff, being dissatisfied with the consideration and benefits of the trust, and with the administration of the trust, commenced this action to terminate the marital trust. After defendant-trustee answered, the trial judge ordered that all living and unborn heirs of the settlor be joined in the action. These new defendants answered, and the matter was heard without a jury. The trial judge allowed defendant\u2019s Rule 41(b) motion, made pursuant to the North Carolina Rules of Civil Procedure, dismissing the action on the ground that upon the facts and the law plaintiff showed no right to relief.\nFrazier T. Woolard, for the plaintiff-appellant.\nMayo & Mayo, by William P. Mayo, and Gaylord and- Singleton, by L. W. Gaylord, Jr., and Danny McNally, for defendant-appellee Wachovia Bank and Trust Company, N.A.\nFred Holscher, for the defendants-appellee, beneficiaries of the residuary estate." }, "file_name": "0675-01", "first_page_order": 703, "last_page_order": 705 }