{
  "id": 8524300,
  "name": "IN THE MATTER OF: FIRST CITIZENS BANK & TRUST COMPANY, as Executor of the Estate of MARY RUTH FLEMING; FIRST CITIZENS BANK & TRUST COMPANY, as Trustee under the will of ARCHIE F. FLEMING, JR. v. THOMAS POE FLEMING, MARTHA RACHEL McNALLY, CLIFTON EARL FLEMING, JR., DOUGLAS SYLVESTER FLEMING, GERRY ELLIOTT McFARLAND, BENJAMIN WILSON ELLIOTT, III, LAWRENCE NELSON ELLIOTT, ROBERT DAY ELLIOTT, MARGARET ELLIOTT RUFF, ELON COLLEGE, SALEM ACADEMY AND COLLEGE, AND FIRST PRESBYTERIAN CHURCH OF MOREHEAD CITY",
  "name_abbreviation": "First Citizens Bank & Trust Co. v. Fleming",
  "decision_date": "1985-10-29",
  "docket_number": "No. 853SC229",
  "first_page": "568",
  "last_page": "572",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges BECTON and PARKER concur."
    ],
    "parties": [
      "IN THE MATTER OF: FIRST CITIZENS BANK & TRUST COMPANY, as Executor of the Estate of MARY RUTH FLEMING; FIRST CITIZENS BANK & TRUST COMPANY, as Trustee under the will of ARCHIE F. FLEMING, JR. v. THOMAS POE FLEMING, MARTHA RACHEL McNALLY, CLIFTON EARL FLEMING, JR., DOUGLAS SYLVESTER FLEMING, GERRY ELLIOTT McFARLAND, BENJAMIN WILSON ELLIOTT, III, LAWRENCE NELSON ELLIOTT, ROBERT DAY ELLIOTT, MARGARET ELLIOTT RUFF, ELON COLLEGE, SALEM ACADEMY AND COLLEGE, AND FIRST PRESBYTERIAN CHURCH OF MOREHEAD CITY"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nThe central issue on this appeal is whether a general residuary clause in a will constitutes an effective disposition of property under a power of appointment which purports to require a specific reference to the power of appointment in the document making the disposition.\nThe power of appointment at issue reads as follows:\nSo much of the principal of this trust as shall remain in the hands of my Trustee at the time of the death of my wife shall be transferred and delivered, discharged of the trust, to such appointee or appointees of my wife, including my wife\u2019s estate, and in such amounts or proportions and upon such terms and provisions as my wife shall appoint and direct in an effective will or codicil specifically referring to this power of appointment .... If this power of appointment shall not be effectually exercised as aforesaid as to all or any portion of such principal, so much of the said principal as shall not have been disposed of by the effectual exercise of such power of appointment shall pass as a part of the remainder of my residuary estate and be disposed of in accordance with the provisions of Items hereinafter set forth as if I had died on the date of my wife\u2019s death.\nThe residuary clause which appellant claims exercised the power of appointment states in pertinent part:\nItem Five\nAll the residue of my estate remaining after the payment of all taxes, inheritance and estate, costs of administration, funeral expenses and debts I will, devise and bequeath to my Executor and do direct that my said Executor shall immediately liquidate my estate in such manner as it may deem proper and appropriate and distribute the proceeds thereof as follows. . . .\nThe trial court ruled that because Mary Fleming\u2019s will failed to refer to the power of appointment, the will did not exercise her power.\nAppellant contends that G.S. 31-4 nullifies the requirement of specific reference. G.S. 31-4 provides that:\nNo appointment, made by will in the exercise of any power, shall be valid unless the same be executed in the manner by law required for the execution of wills; and every will, executed in such manner, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity.\nWe are now called upon to interpret G.S. 31-4 for the first time in the statute\u2019s 140 year history. We declined to hold that G.S. 31-4 nullified a provision in a power of appointment requiring specific reference in Bank v. Moss, 32 N.C. App. 499, 233 S.E. 2d 88, disc. rev. denied, 292 N.C. 728, 235 S.E. 2d 783 (1977), by deciding the case on other grounds. We now hold that a provision calling for reference to a power of appointment does not concern the \u201cexecution and attestation\u201d of a will within the meaning of G.S. 31-4.\nIn North Carolina and a minority of other states, a power of appointment upon which no restrictions are imposed is exercised by a residuary clause. G.S. 31-43; Trust Co. v. Hunt, 267 N.C. 173, 148 S.E. 2d 41 (1966). It has been suggested that this rule was originally created to guard against the inadvertent failure of a life tenant to exercise a general power of appointment. Trust Co. v. Hunt, 267 N.C. 173, 148 S.E. 2d 41 (1966).\nIn a majority of American jurisdictions, however, residuary clauses do not exercise a power unless the power is mentioned in the residuary clause. Thus, a majority of American jurisdictions are more concerned with the inequity of inadvertent exercise of powers of appointment than of inadvertent failure to exercise powers of appointment. To hold that G.S. 31-4 nullifies specific reference requirements would be to prevent a testator from guarding against inadvertent exercise of a general power even if he were particularly concerned about such inadvertence.\nNone of the eighteen American jurisdictions with statutory schemes similar to North Carolina\u2019s have faced the question presented today. However, the English statutes upon which North Carolina\u2019s scheme was based have been interpreted in accord with this opinion. Phillips v. Cayley, 43 Ch. D. 222 (C.A. 1889). Other jurisdictions with statutory schemes similar to North Carolina\u2019s have reached the result we reach here by statute. See, e.g., Wis. Stat. Ann. Sec. 232.44 (1957). The only legal scholar to address the question presented in the context of the North Carolina statutory scheme argued that the language in the North Carolina statute suggests the result we reach today. Rabin, Blind Exercises of Powers of Appointment, 51 Cornell L.Q. 1, 14-17 (1965). We therefore hold that in 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.\nAppellant also argues that because the meaning of both the phrase \u201cspecifically referring to this power of appointment\u201d in Archie Fleming\u2019s will, and the residuary clause in Mary Fleming\u2019s will, are ambiguous, judgment on the pleadings was improper. There may be ambiguity in both provisions. Bank v. Moss, 32 N.C. App. 499, 233 S.E. 2d 88, disc. rev. denied, 292 N.C. 728, 235 S.E. 2d 783 (1977). However, the ambiguity is not significant in the context of this action. No conceivable interpretation of the two wills could make Mary Fleming\u2019s residuary clause meet the specific reference requirement created by Archie Fleming\u2019s will. We find no error.\nAffirmed.\nJudges BECTON and PARKER concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      }
    ],
    "attorneys": [
      "Stanley & Simpson, by Richard L. Stanley, for First Presbyterian Church of Morehead City, defendant, appellant.",
      "Womble Carlyle Sandridge & Rice, by Linwood L. Davis and Michael E. Ray, for Salem Academy and College and Elon College, defendants, appellees."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: FIRST CITIZENS BANK & TRUST COMPANY, as Executor of the Estate of MARY RUTH FLEMING; FIRST CITIZENS BANK & TRUST COMPANY, as Trustee under the will of ARCHIE F. FLEMING, JR. v. THOMAS POE FLEMING, MARTHA RACHEL McNALLY, CLIFTON EARL FLEMING, JR., DOUGLAS SYLVESTER FLEMING, GERRY ELLIOTT McFARLAND, BENJAMIN WILSON ELLIOTT, III, LAWRENCE NELSON ELLIOTT, ROBERT DAY ELLIOTT, MARGARET ELLIOTT RUFF, ELON COLLEGE, SALEM ACADEMY AND COLLEGE, AND FIRST PRESBYTERIAN CHURCH OF MOREHEAD CITY\nNo. 853SC229\n(Filed 29 October 1985)\nWills \u00a7 40.4\u2014 power of appointment \u2014 not mentioned in residuary clause of donee\u2019s will \u2014 not exercised\nThe trial court did not err by holding that a general residuary clause in a will failed to exercise a power of appointment established in a trust because it did not refer to the power of appointment. A power of appointment does not concern the \u201cexecution and attestation\u201d of a will within the meaning of G.S. 31-4; to hold that G.S. 31-4 nullifies the specific reference requirements would be to prevent a testator from guarding against inadvertent exercise of a general power even if he were particularly concerned about such inadvertence.\nAPPEAL by defendant, First Presbyterian Church of More-head City, from Winberry, Judge. Order entered 7 January 1985 in Superior Court, CARTERET County. Heard in the Court of Appeals 14 October 1985.\nThis is a declaratory judgment action wherein plaintiff bank seeks proper disposition of a trust fund held by the bank. From judgment on the pleadings, defendant church appealed.\nStanley & Simpson, by Richard L. Stanley, for First Presbyterian Church of Morehead City, defendant, appellant.\nWomble Carlyle Sandridge & Rice, by Linwood L. Davis and Michael E. Ray, for Salem Academy and College and Elon College, defendants, appellees."
  },
  "file_name": "0568-01",
  "first_page_order": 600,
  "last_page_order": 604
}