{
  "id": 8525723,
  "name": "CAROLINE H. RIDDLE v. J. IVERSON RIDDLE, and MORGANTON SAVINGS & LOAN ASSOCIATION",
  "name_abbreviation": "Riddle v. Riddle",
  "decision_date": "1982-08-03",
  "docket_number": "No. 8125SC954",
  "first_page": "594",
  "last_page": "597",
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    "name": "North Carolina Court of Appeals"
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      "cite": "286 N.C. 282",
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    {
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  "analysis": {
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  "last_updated": "2023-07-14T18:20:52.636886+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Clark and Martin (Harry C.) concur."
    ],
    "parties": [
      "CAROLINE H. RIDDLE v. J. IVERSON RIDDLE, and MORGANTON SAVINGS & LOAN ASSOCIATION"
    ],
    "opinions": [
      {
        "text": "MORRIS, Chief Judge.\nPlaintiff by supplemental and amended complaints alleged\n8. That the Defendant, as \u201cTrustee for Caroline H. Riddle\u201d ostensibly holds title to principal funds, together with accrued interest, in the sum of Ten Thousand Dollars ($10,000.00) on deposit at Morganton Savings & Loan Association; that the Defendant has no duties or functions as \u201cTrustee\u201d in connection with said funds and performs no fiduciary duties in conjunction therewith; that the purported trust is impassive (sic) and inactive and the legal title and equitable title thereof are, accordingly, merged and the Plaintiff is fully and lawfully entitled to have the ownership and possession of said funds surrendered to her.\nDefendant sought to prove that the trust was originally established for the purpose of maintaining, supporting and educating the three children born of the marriage of plaintiff and defendant J. Iverson Riddle and that it is presently being administered for that purpose. The trial judge concluded that the donor intended a gift to plaintiff, that the trust was passive, and that defendant Iverson had \u201cno duties or responsibilities with respect to these funds, except such duty as may be imposed by law to account for the existence and preservation of these funds.\u201d\nDefendant, by his first assignment of error, contends that the burden was on plaintiff to prove that the trust was passive; and that it was error, because plaintiff failed to prove the absence of duties imposed on the trustee, for the trial court to deny their motion to dismiss pursuant to Rule 41(b) at the close of plaintiffs evidence.\nAs a general rule, plaintiff must allege and prove all the essential elements of his cause of action even though stated in negative form, Wiles v. Mullinax, 275 N.C. 473, 168 S.E. 2d 366 (1969). Where, however, as in the case sub judice, defendant is the party having peculiar knowledge of the facts surrounding the creation of the trust and his duties and functions, if any, respecting it, the burden is on the party capable of the proof. Ange v. The Woodmen of the World, 173 N.C. 33, 91 S.E. 586 (1917); Home Insurance Co. v. Ingold Tire Co., 286 N.C. 282, 210 S.E. 2d 414 (1974). We hold that defendant failed to carry this burden, as his evidence was insufficient to establish the existence of an active trust.\nIf the trust is to have permanence, not only must words connoting trust be used but the terms of the trust must give the trustee positive or active duties, the performance of which is necessary to carry out the purpose of the settlor.\nBogert, Trusts and Trustees \u00a7 206 (2d Ed. revised 1979).\n[A] trust transfer . . . \u201cin trust for\u201d another, or \u201cfor the benefit of\u2019 another, without describing any duties to be performed by the trustee in carrying out the use or trust, creates a trust which is clearly passive and which is executed by a transfer of the trustee\u2019s interest to the beneficiary who thereafter holds as absolute owner.\nId. at \u00a7 207. The record is devoid of indication that the settlor, H. L. Riddle, directed J. Iverson Riddle to manage, invest or otherwise perform duties in furtherance of the trust purpose. Moreover, H. L. Riddle\u2019s deposition testimony negates the existence of an active trust. H. L. Riddle describes no management duties and states that he intended that the $10,000 \u201cbe for her (plaintiffs) use and benefit.\u201d The conclusion that the money was intended for the sole use and benefit of plaintiff and that she is entitled to ownership and possession of the funds was a proper one. See Pilkington v. West, 246 N.C. 575, 99 S.E. 2d 798 (1957).\nDefendant further alleges that the trial court committed prejudicial error by making findings of fact which were not supported by competent evidence and by reaching conclusions based on those findings. We deem it unnecessary to speak to each exception addressed in this argument, holding that the court\u2019s finding that:\n. . . There has never been an explicit trust arrangement, established by written or parol agreement or evidence, governing or specifying any terms by which J. Iverson Riddle has held in trust any of the funds which have been on deposit in Morganton Savings and Loan Association. . . .\naccurately reflected defendant\u2019s failure to carry his burden of proof and alone supports the court\u2019s conclusions and judgment.\nDefendant maintains by his third and final assignment that he is entitled to attorney\u2019s fees, to be paid, pursuant to G.S. 6-21(2), out of the trust res. The decision to award counsel fees is within the discretion of the trial court, Hoskins v. Hoskins, 259 N.C. 704, 131 S.E. 2d 326 (1963), and we will not disturb what we deem to be a sound exercise of that discretion.\nThe judgment is\nAffirmed.\nJudges Clark and Martin (Harry C.) concur.",
        "type": "majority",
        "author": "MORRIS, Chief Judge."
      }
    ],
    "attorneys": [
      "Oma H. Hester, Jr., for plaintiff appellee.",
      "Simpson, Aycock, Beyer and Simpson, by Samuel E. Aycock, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "CAROLINE H. RIDDLE v. J. IVERSON RIDDLE, and MORGANTON SAVINGS & LOAN ASSOCIATION\nNo. 8125SC954\n(Filed 3 August 1982)\n1. Trusts \u00a73\u2014 active trust \u2014 burden of proof\nIn an action alleging that a trust was passive, defendant trustee had the burden of proving the existence of an active trust since defendant was the party having peculiar knowledge of the facts surrounding the creation of the trust and his duties and functions, if any, respecting it.\n2. Trusts 8 3\u2014 passive trust \u2014 sufficiency of evidence\nThe trial court properly determined that a trust was passive and that the beneficiary was entitled to ownership and possession of the trust funds where there was no evidence that the settlor directed the trustee to manage, invest or otherwise perform duties in furtherance of the trust purpose, and the set-tlor testified that he intended that the trust funds be for the beneficiary\u2019s use and benefit.\n3. Attorneys at Law \u00a7 7.5\u2014 action involving trust \u2014 trustee\u2019s attorney fees \u2014 discretion of court\nThe decision whether to award counsel fees to defendant trustee to be paid out of the trust res pursuant to G.S. 6-21(2) in an action to establish that the trust was passive rested within the sound discretion of the trial court.\nAppeal by defendant from Owens, Judge. Judgment entered 29 April 1981 in BURKE County Superior Court. Heard in the Court of Appeals 28 April 1982.\nThis case having been before us on two previous occasions, we by this appeal review only the trial court\u2019s decision on plaintiffs remaining claim. Facts necessary for an understanding of this matter are set out below.\nOma H. Hester, Jr., for plaintiff appellee.\nSimpson, Aycock, Beyer and Simpson, by Samuel E. Aycock, for defendant appellant."
  },
  "file_name": "0594-01",
  "first_page_order": 626,
  "last_page_order": 629
}