WEBB, Justice.
The first question posed by this appeal is whether the Uniform Trusts Act, N.C.G.S. § 36A-60 et seq., applies to this case and [300] if so whether, as contended by the plaintiffs, N.C.G.S. § 36A-78 and N.C.G.S. § 36A-66 forbid the executors from conveying the real property to William. We affirm the Court of Appeals and hold that the. Act does not apply. N.C.G.S. § 36A-60 says:
As used in this Article unless the context or subject matter otherwise requires:
(4) “Trust” means an express trust only.
N.C.G.S. § 36A-60 (1984).
Nothing in the language of Josephine’s will expressly creates a trust. We do not agree with plaintiffs that the language of the will, that the residuary estate shall be “administered and distributed” in stated percentages to the plaintiffs, directs the executors to hold the estate for plaintiffs and thus creates an express trust.
The cases upon which the plaintiffs rely are not helpful to them. Davis v. Jenkins, 236 N.C. 283, 72 S.E.2d 673 (1952) and Pearson v. Pearson, 227 N.C. 31, 40 S.E.2d 477 (1946), deal with the purchase of estate assets by the administrators of the estates. They recognize an administrator is a fiduciary but do not deal with the creation of express trusts. There may be cases in which an express trust may be created without expressly saying so, but this is not such a case.
We do not agree with the Court of Appeals that the case should be remanded for further proceedings. We are able to determine the case on the basis of the issues decided by the jury.
The plaintiffs correctly say that although the Uniform Trusts Act may not apply, the executors are nevertheless under a fiduciary duty to the plaintiffs. Erickson v. Starling, 233 N.C. 539, 64 S.E.2d 832 (1951); Jarrett v. Green, 230 N.C. 104, 52 S.E.2d 223 (1949). They argue that it diminished the estate for William to exercise the option and he was under a fiduciary duty to the plaintiffs not to exercise it unless he resigned as executor. William’s duty to the plaintiffs as executor was to administer the estate in accordance with the will. The will provided for him to purchase the tract of land. He could do so without violating his duty as executor.
All the parties agree that this case does not comprise an attack on the will. It is conceded that there was no undue influence [301] and that Josephine was of sound mind when the option and the will were executed. The plaintiffs contend that William was a fiduciary for Josephine before and at the time the option was exercised and there is a presumption of fraud in the execution of the option. Curl v. Key, 311 N.C. 259, 316 S.E.2d 272 (1984). We have held that a fiduciary relationship “exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.” Link v. Link, 278 N.C. 181, 192, 179 S.E.2d 697, 704 (1971); Abbitt v. Gregory, 201 N.C. 577, 160 S.E. 896 (1931); Brisson v. Williams, 82 N.C. App. 53, 345 S.E.2d 432 (1986), cert. denied, 318 N.C. 691, 350 S.E.2d 857 (1986); Stilwell v. Walden, 70 N.C. App. 543, 320 S.E.2d 329 (1984).
In this case, there is evidence that Josephine relied on William in her business transactions. There is other evidence, particularly in regard to the transaction regarding the granting of the option, that she did not rely on William. The question of the fiduciary relationship was submitted to the jury, and we believe properly so. The issue was resolved favorably to the defendants. There was no fiduciary relationship between Josephine and William when the option was executed and there is not a presumption of fraud.
The plaintiffs also contend the court committed error in excluding evidence of certain actions taken by the defendants after Josephine’s death. The plaintiffs offered evidence which was excluded that the defendants did not make the option a part of the estate file, listed the land value on the 90 day inventory at $30,000 when the tax value was $95,000, did not inform the beneficiaries of the will of the existence or terms of the option until it was exercised, did not disclose to the beneficiaries that adjoining land was being purchased by a major commercial developer, and the exercise of the option and the deed conveying the property were backdated to 1 August 1986. The plaintiffs say all this was evidence of William’s intent. This evidence would not have had a tendency to make the relations of William and Keith to Josephine more likely to be fiduciary relations. Nor would it have made it more or less likely that Josephine relied on the advice of Robert Vaughn in exercising the option. It would also not make it more or less likely that the exercise of the option was an open, fair and honest transaction. N.C.G.S. § 8C-1, Rule 401 (1992). This evidence was [302] not relevant to any issue in this case and it was not error to exclude it. N.C.G.S. § 8C-1, Rule 402 (1992).
The plaintiffs next contend that a claim for unjust enrichment should have been submitted to the jury. Relying on Ellis Jones, Inc. v. Western Waterproofing Co., 66 N.C. App. 641, 312 S.E.2d 215 (1984), the plaintiffs say that unjust enrichment “will usually lie whenever one man has been enriched or his estate enhanced at another’s expense under circumstances that, in equity and good conscience, call for an accounting by the wrongdoer.” Id. at 646, 312 S.E.2d at 218 (quoting Thormer v. Lexington Mail Order Co., 241 N.C. 249, 252, 85 S.E.2d 140, 143 (1954)). The plaintiffs say that equity and good conscience require a recovery for unjust enrichment in this case because of the small consideration paid by William for a valuable tract of land. They say that there is no evidence “that Josephine intended for William to buy her property for a song.” They say further that William remained silent when Josephine told Mr. Vaughn to use the tax value to determine the price to be paid for the land.
We have held that William was not acting in a fiduciary capacity in the drawing of the option. There is no evidence that he suggested the price to be paid for the land. Josephine was a competent person and could determine the price. The evidence shows she did so of her own free will. It was not error not to submit unjust enrichment to the jury.
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WEBB, Justice.
The first question posed by this appeal is whether the Uniform Trusts Act, N.C.G.S. § 36A-60 et seq., applies to this case and [300] if so whether, as contended by the plaintiffs, N.C.G.S. § 36A-78 and N.C.G.S. § 36A-66 forbid the executors from conveying the real property to William. We affirm the Court of Appeals and hold that the. Act does not apply. N.C.G.S. § 36A-60 says:
As used in this Article unless the context or subject matter otherwise requires:
(4) “Trust” means an express trust only.
N.C.G.S. § 36A-60 (1984).
Nothing in the language of Josephine’s will expressly creates a trust. We do not agree with plaintiffs that the language of the will, that the residuary estate shall be “administered and distributed” in stated percentages to the plaintiffs, directs the executors to hold the estate for plaintiffs and thus creates an express trust.
The cases upon which the plaintiffs rely are not helpful to them. Davis v. Jenkins, 236 N.C. 283, 72 S.E.2d 673 (1952) and Pearson v. Pearson, 227 N.C. 31, 40 S.E.2d 477 (1946), deal with the purchase of estate assets by the administrators of the estates. They recognize an administrator is a fiduciary but do not deal with the creation of express trusts. There may be cases in which an express trust may be created without expressly saying so, but this is not such a case.
We do not agree with the Court of Appeals that the case should be remanded for further proceedings. We are able to determine the case on the basis of the issues decided by the jury.
The plaintiffs correctly say that although the Uniform Trusts Act may not apply, the executors are nevertheless under a fiduciary duty to the plaintiffs. Erickson v. Starling, 233 N.C. 539, 64 S.E.2d 832 (1951); Jarrett v. Green, 230 N.C. 104, 52 S.E.2d 223 (1949). They argue that it diminished the estate for William to exercise the option and he was under a fiduciary duty to the plaintiffs not to exercise it unless he resigned as executor. William’s duty to the plaintiffs as executor was to administer the estate in accordance with the will. The will provided for him to purchase the tract of land. He could do so without violating his duty as executor.
All the parties agree that this case does not comprise an attack on the will. It is conceded that there was no undue influence [301] and that Josephine was of sound mind when the option and the will were executed. The plaintiffs contend that William was a fiduciary for Josephine before and at the time the option was exercised and there is a presumption of fraud in the execution of the option. Curl v. Key, 311 N.C. 259, 316 S.E.2d 272 (1984). We have held that a fiduciary relationship “exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.” Link v. Link, 278 N.C. 181, 192, 179 S.E.2d 697, 704 (1971); Abbitt v. Gregory, 201 N.C. 577, 160 S.E. 896 (1931); Brisson v. Williams, 82 N.C. App. 53, 345 S.E.2d 432 (1986), cert. denied, 318 N.C. 691, 350 S.E.2d 857 (1986); Stilwell v. Walden, 70 N.C. App. 543, 320 S.E.2d 329 (1984).
In this case, there is evidence that Josephine relied on William in her business transactions. There is other evidence, particularly in regard to the transaction regarding the granting of the option, that she did not rely on William. The question of the fiduciary relationship was submitted to the jury, and we believe properly so. The issue was resolved favorably to the defendants. There was no fiduciary relationship between Josephine and William when the option was executed and there is not a presumption of fraud.
The plaintiffs also contend the court committed error in excluding evidence of certain actions taken by the defendants after Josephine’s death. The plaintiffs offered evidence which was excluded that the defendants did not make the option a part of the estate file, listed the land value on the 90 day inventory at $30,000 when the tax value was $95,000, did not inform the beneficiaries of the will of the existence or terms of the option until it was exercised, did not disclose to the beneficiaries that adjoining land was being purchased by a major commercial developer, and the exercise of the option and the deed conveying the property were backdated to 1 August 1986. The plaintiffs say all this was evidence of William’s intent. This evidence would not have had a tendency to make the relations of William and Keith to Josephine more likely to be fiduciary relations. Nor would it have made it more or less likely that Josephine relied on the advice of Robert Vaughn in exercising the option. It would also not make it more or less likely that the exercise of the option was an open, fair and honest transaction. N.C.G.S. § 8C-1, Rule 401 (1992). This evidence was [302] not relevant to any issue in this case and it was not error to exclude it. N.C.G.S. § 8C-1, Rule 402 (1992).
The plaintiffs next contend that a claim for unjust enrichment should have been submitted to the jury. Relying on Ellis Jones, Inc. v. Western Waterproofing Co., 66 N.C. App. 641, 312 S.E.2d 215 (1984), the plaintiffs say that unjust enrichment “will usually lie whenever one man has been enriched or his estate enhanced at another’s expense under circumstances that, in equity and good conscience, call for an accounting by the wrongdoer.” Id. at 646, 312 S.E.2d at 218 (quoting Thormer v. Lexington Mail Order Co., 241 N.C. 249, 252, 85 S.E.2d 140, 143 (1954)). The plaintiffs say that equity and good conscience require a recovery for unjust enrichment in this case because of the small consideration paid by William for a valuable tract of land. They say that there is no evidence “that Josephine intended for William to buy her property for a song.” They say further that William remained silent when Josephine told Mr. Vaughn to use the tax value to determine the price to be paid for the land.
We have held that William was not acting in a fiduciary capacity in the drawing of the option. There is no evidence that he suggested the price to be paid for the land. Josephine was a competent person and could determine the price. The evidence shows she did so of her own free will. It was not error not to submit unjust enrichment to the jury.
The plaintiffs next contend there was error in the charge. The plaintiffs first say the court told the jury to limit its consideration as to whether there was a fiduciary relation “as to any aspect of that [January 21, 1981 option] transaction^]” The plaintiffs say this implied that any previous ongoing fiduciary relation could be ignored. We do not agree with the plaintiffs as to this interpretation of the charge, but we believe any doubts should have been resolved by the following portion of the court’s charge.
Finally, members of the jury, as to this first issue, I charge if the defendants have proved by the greater weight of the evidence that at or before the execution of the January 21, 1981, option no fiduciary relationship exist[ed] between Josephine Kapp and Bill Kapp as to any aspect of that transaction or as . to any relevant transaction leading up to that transaction, then it would be your duty to answer this first issue no, in favor of the defendants.
[303] The plaintiffs also contend there was error in the charge in that the court charged on something that was not at issue. Although the court had dismissed a claim based on undue influence, the court in its charge on a fiduciary relation explained to the jury the law as to undue influence. This part of the charge had no relevance to the issue of a fiduciary relation in this case. The plaintiffs contend that by charging as it did, the court led the jury to believe that it would have to find undue influence in order to find a fiduciary relation.
The charge on undue influence was correct as to that facet of the law as was the charge on a fiduciary relation. Although irrelevant to the issue of the fiduciary relation, we cannot hold a correct statement of the law as to undue influence would have led the jury to believe it would have to find undue influence before it could find a fiduciary relation.
Finally, the plaintiffs contend that it was error for the court to instruct the jury that if it answered either of the first two issues favorably to the defendants, it would answer the third issue in favor of the defendants. The answer to the first issue was sufficient to determine the case in favor of the defendants. If there was error in determining the third issue, it was harmless error.
For the reasons stated in this opinion, we affirm the Court of Appeals in part, reverse the Court of Appeals in part and remand the case to the Court of Appeals for remand to Superior Court, Forsyth County, for an order reinstating the judgment heretofore entered.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.