Smith v. Underwood

437 S.E.2d 512, 113 N.C. App. 45, 1993 N.C. App. LEXIS 1312
CourtCourt of Appeals of North Carolina
DecidedDecember 21, 1993
DocketNo. 923SC369
StatusPublished
Cited by2 cases

This text of 437 S.E.2d 512 (Smith v. Underwood) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Underwood, 437 S.E.2d 512, 113 N.C. App. 45, 1993 N.C. App. LEXIS 1312 (N.C. Ct. App. 1993).

Opinions

JOHNSON, Judge.

The facts pertinent to this appeal are as follows: Mr. W. H. Smith died testate in Pitt County on 9 June 1954. His Last Will and Testament provided that two trusts be created, one for the benefit of his wife, the Ada T. Smith Trust, and one for the benefit of his children and their descendants, the W. H. Smith Trust. Both trusts terminate at the death of Ada T. Smith. Sam B. Underwood, Jr., respondent, and Robert Lee Smith, Mr. W. H. Smith’s oldest son, were appointed co-trustees of both trusts under the Will.

The maintenance of the trusts was uneventful until 1983 when Mr. Underwood advised Mrs. Ada Smith to begin making annual gifts of her trust property in an amount less than $10,000.00 to each of her children. Mr. Underwood then suggested to the heirs and Mrs. Ada Smith that the Smith Heirs Corporation be formed so that land from the trusts could be conveyed into the corporation. In 1985, Mr. Underwood suggested the formation of another corporation, the Smith Corporation, which was to have been a “Sub-chapter S” Corporation pursuant to IRS Regulations. This new “S” Corporation could receive and disperse trust property consisting of land formerly owned by Mr. W. H. Smith.

In December 1988, Mr. Underwood called a meeting of the beneficiaries of the two trusts and the corporate shareholders of both the Smith Corporation and the Smith Heirs Corporation, most of whom share an interest in each entity, to inform them that he had sold the land known as the Warren-Tucker Subdivision. The Warren-Tucker Subdivision, formerly trust property, was at the time owned by the two corporations and the W. H. Smith Trust. Mr. Underwood did not discuss negotiations regarding the sale of the land with the co-trustee; however, the co-trustee did sign the deed at the close of the transaction.

The land was sold for $2,350,000.00, and Mr. Underwood received a commission in the amount of $72,650.00 for arranging the sale of the land. His co-trustee did not share in the commission. Although the agreement prepared by Mr. Underwood, in which he designated himself as trustee, referenced a commission fee in the amount of .0025 from each payment collected by Mr. Underwood, Mr. Underwood did not collect that commission.

Annually, Mr. Underwood sent a letter to the beneficiaries which represented an accounting of the W. H. Smith and the Ada [50]*50T. Smith Trust Funds. The letter basically stated the amount of the check that came from each trust fund and the amount that was taxable. A K-l tax form was sent along with the letter. Although an “accounting” was provided by Mr. Underwood to the beneficiaries, he did not provide an accounting to the clerk of court because the clerk of court, at the time of Mr. W. H. Smith’s death, informed him that he did not have to file an accounting. Mr. Underwood also never obtained approval from the clerk of court for his co-trustee commission fees as set out in the Will of W. H. Smith.

In 1991, the heirs/shareholders started to become dissatisfied with Mr. Underwood’s services when they received a check for 1990 disbursements in an amount that was considerably lower than normal. They confronted Mr. Underwood who explained that the decrease in the check amount was due to a tax problem. The heirs/shareholders became increasingly dissatisfied with Mr. Underwood when tax problems occurred with the Smith “S” Corporation. Mr. Underwood would not allow Tom Smith, the President of the Smith “S” Corporation, access to pertinent documents regarding the corporation.

On 26 July 1991, the heirs/shareholders sent Mr. Underwood a letter firing him in all capacities, requesting that he resign as co-trustee immediately and again requesting that he release pertinent documents to Tom Smith. Respondent received the letter but refused to resign. Petitioners brought this action.

Petitioners’ Assignments of Error

By petitioners’ first assignment of error, petitioners contend that the trial court erred when it allowed into evidence testimony regarding an oral understanding between respondent and two deceased clerks of court. More specifically, petitioners argue that findings of fact 21 and 25 are based on the aforementioned testimonial evidence that is inadmissible hearsay, violative of North Carolina General Statutes § 8C-1, Rule 601(c) (1992) and irrelevant to the issues in this case. We disagree.

We turn to petitioners’ first contention that the testimony was violative of the hearsay rule. “Hearsay is a statement, other than one made by the declarant while testifying at a trial or a hearing, offered in evidence to prove the truth of the matter asserted.” North Carolina General Statutes § 8C-1, Rule 801(c) (1992). When evidence of such statements by one other than the witness [51]*51testifying is offered for a proper purpose other than to prove the truth of the matter asserted, it is not hearsay and is admissible. “Specifically, statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made.” State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990).

In the instant case, Mr. Underwood testified that he discussed filing an accounting with two deceased clerks of court and both told him that it was not necessary for him to file an accounting. As a result, Mr. Underwood stated that he had not filed any ac-countings in his thirty-seven years as co-trustee. We find from the evidence that respondent did not use the deceaseds’ comments for the truth of the matter asserted. Instead, he used their statements to explain his subsequent conduct. Therefore, we find no merit in petitioners’ argument.

Petitioners also argue that the deceaseds’ statements should not have been allowed into evidence because admission of the statements were violative of the North Carolina General Statutes § 8C-1, Rule 601(c) which states in pertinent part:

Upon the trial of an action, or hearing upon the merits of a special proceeding, a party or a person interested in the event, . . . shall not be examined as a witness in his own behalf or interest, . . . against the executor, administrator or survivor of a deceased person, . . . concerning any oral communication between the witness and the deceased person[.]

This statute is not applicable in the instant case because respondent is not attempting to introduce the oral communications between himself and the deceased in his own behalf against any party in an action representing the deceased. As such, this argument is meritless.

Petitioners further argue that the statements made by respondent were irrelevant. The test for relevancy is whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable. North Carolina General Statutes § 8C-1, Rule 401 (1992). We find respondent’s statements were relevant because they aided the court in understanding the co-trustee’s conduct concerning his failure to file accountings and obtain approval for com[52]*52munications, which is at issue in this case. We find no merit in petitioners’ argument.

Having considered petitioners’ arguments on the testimony of respondent and finding the trial court made no error in admitting the testimony, we determine that findings of fact numbers 21 and 25 were supported by substantial competent evidence. This assignment of error is overruled.

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787 S.E.2d 440 (Court of Appeals of North Carolina, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
437 S.E.2d 512, 113 N.C. App. 45, 1993 N.C. App. LEXIS 1312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-underwood-ncctapp-1993.