Sherrod v. ANY CHILD, ETC., BORN TO SHERROD

Supreme Court of North Carolina

Sherrod v. ANY CHILD, ETC., BORN TO SHERROD

320 S.E.2d 669, 312 N.C. 74, 1984 N.C. LEXIS 1776

CourtSupreme Court of North Carolina

DecidedOctober 2, 1984

Docket637A83

StatusPublished

This text of 320 S.E.2d 669 (Sherrod v. ANY CHILD, ETC., BORN TO SHERROD) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sherrod v. ANY CHILD, ETC., BORN TO SHERROD, 320 S.E.2d 669, 312 N.C. 74, 1984 N.C. LEXIS 1776 (N.C. 1984).

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Opinion

*75 PER CURIAM.

The opinion of the Court of Appeals contains a thorough statement of the relevant facts of this case. The Court of Appeals concluded that Item Four of testator’s will created an active trust and conferred upon the trustee the power to sell the property held in trust. Further, the court held that the class closed at the death of the testator, thus excluding as beneficiaries any children born after the death of the testator. The cause was remanded pursuant to G.S. 1-255(3) to resolve genuine issues regarding the parties’ rights and liabilities under the will.

After carefully reviewing the record and briefs filed in this case and hearing oral arguments of counsel for all parties, we find the opinion of the Court of Appeals correct except for that portion of the opinion which holds that the trustee has the power to sell the property without prior court approval. The Court of Appeals relies upon Ripley v. Armstrong, 159 N.C. 158, 74 S.E. 961 (1912) to support this conclusion. We do not find Ripley controlling, however, because the trust property in this case, unlike the trust property in Ripley, is income producing and valuable for agricultural purposes. Accordingly, that portion of the Court of Appeals’ opinion which holds that court approval of a sale of the farm is not required is reversed; and the trial court’s judgment that the trustee does not have the power to sell any part or all of the Hunter Farm, except upon approval of the court as provided by law, is reinstated. As thus modified, we affirm the decision of the Court of Appeals.

Modified and affirmed.

Chief Justice Branch did not participate in the consideration or decision of this case.

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*75 PER CURIAM.

The opinion of the Court of Appeals contains a thorough statement of the relevant facts of this case. The Court of Appeals concluded that Item Four of testator’s will created an active trust and conferred upon the trustee the power to sell the property held in trust. Further, the court held that the class closed at the death of the testator, thus excluding as beneficiaries any children born after the death of the testator. The cause was remanded pursuant to G.S. 1-255(3) to resolve genuine issues regarding the parties’ rights and liabilities under the will.

After carefully reviewing the record and briefs filed in this case and hearing oral arguments of counsel for all parties, we find the opinion of the Court of Appeals correct except for that portion of the opinion which holds that the trustee has the power to sell the property without prior court approval. The Court of Appeals relies upon Ripley v. Armstrong, 159 N.C. 158, 74 S.E. 961 (1912) to support this conclusion. We do not find Ripley controlling, however, because the trust property in this case, unlike the trust property in Ripley, is income producing and valuable for agricultural purposes. Accordingly, that portion of the Court of Appeals’ opinion which holds that court approval of a sale of the farm is not required is reversed; and the trial court’s judgment that the trustee does not have the power to sell any part or all of the Hunter Farm, except upon approval of the court as provided by law, is reinstated. As thus modified, we affirm the decision of the Court of Appeals.

Modified and affirmed.

Chief Justice Branch did not participate in the consideration or decision of this case.

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Bluebook (online)

320 S.E.2d 669, 312 N.C. 74, 1984 N.C. LEXIS 1776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherrod-v-any-child-etc-born-to-sherrod-nc-1984.

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