Security National Bank v. Sternberger , 207 N.C. 811 ( 1935 )

ClakksoN, J.

Tbe main question involved: Is tbe written instrument in controversy, admitted to be executed by all of tbe members of tbe family in reference to tbe 8,790 shares of stock in tbe Revolution Cotton Mills, such a contract as to entitle tbe trustee to bold tbe certificates of stock against tbe demands of plaintiffs? We think not.

Tbe written instrument is a simple, passive or dry .trust, not an active or special trust. Tbe distinction between simple, passive or dry trusts and special or active trusts is pointed out succinctly in Perry on Trusts and Trustees (7th Ed.), Vol. 1, sec. 18, p. 14, which is as follows: “Trusts are divided into simple and special trusts. A simple trust is a simple conveyance of property to one upon trust, for another, without further specifications or directions. In such case, tbe law regulates tbe trust, and tbe cestui que trust has tbe right of possession and of disposing of tbe property, and be may call upon tbe trustee to execute such conveyances of tbe legal estate as may be necessary; A special trust is where special and particular duties are pointed out to be performed by tbe trustee. In such cases be is not a mere passive agent, but has active duties to perform, as when an estate is given to a person to sell, and from the proceeds to pay the debts of the settler.”

In Lewin on Trusts, Vol. 1, the same classification of simple and special trusts is made, the author saying, at page 18: “The simple trust is where property is vested in one person upon trust for another, and the nature of the trust not being prescribed by the settler, is left to the construction of law. In this case the cestui que trust has jus hdbendi, or the right to be put into actual possession of the property, and jus disponendi, or the right to call upon the trustee to execute conveyance of the legal estate as the cestui que trust directs.”

The distinction between active, passive, and dry trusts has been observed and. carefully pointed out in a number of decisions by the Supreme Court of this State.

In Jasper v. Maxwell, 16 N. C., 357 (359), Ruffin, J., said: “The question made upon the will has no difficulty. The bank stock is bequeathed to the executors, in trust, to receive the dividends as declared and pay them over to the testator’s daughter during her life, or until the charters expire, and upon that event, unless the charters be renewed, the stock itself is given to the daughter. In her, then, are united the present right to the whole profits, and the absolute ultimate dominion— which gives as perfect a property as is known to the law. The cestui que trust can call for the legal estate at her will. It is not like the case of a bequest in trust for the maintenance of another. There the trustee must retain the property in order to provide out of the profits for the support of the object of the testator’s bounty. He must keep the fund in his own hands, lest it be wasted. But here the fund is to go (eventually) directly to the daughter, and in the meanwhile the whole profits, not as a maintenance to be provided by'the executor, but as a general pecuniary legacy.”

Again it was declared in Turnage v. Greene, 55 N. C., 63 (headnote), that: “Where the right of a cestui que trust to a trust is immediate and absolute, there being no ulterior limitation, and no continuing duty to be performed with it by the trustee, the Court will decree the legal estate to be conveyed to those entitled.” This case involved bank stock, the trustee seeking to collect commissions for the payment of dividends to the cestui que trust, but this was denied, this Court holding that the legatees were entitled to have a transfer of stock made to them.

In McKenzie v. Sumner, 114 N. C., 425 (427-8), the will of Thomas J. Sumner devised to Julian E. Sumner in trust for the plaintiff an undivided third part of certain land, and also bequeathed certain corporation stock. It was alleged that the trust being passive and naked, the beneficiary was entitled to a transfer of the property. Chief Justice Shepherd said: “As to the real estate devised to the defendant for the benefit of the plaintiff, there is no reason why the legal title is not vested in the plaintiff by the statute of uses, as the land is not conveyed to her ‘sole and separate use,’ nor is the trustee charged in any manner whatever with any special duties with respect to the same. . . . The statute, however, does not apply to personal property, such as notes and bank stock, and the legal title remains in the trustee until it is in some way transferred to the equitable owner. Is there any reason why the court, exercising its equitable jurisdiction, should not have directed the assignment of the legal title in this instance? We can see none. The plaintiff being the absolute, equitable owner, there are no ulterior limitations to be protected and, under the terms of the will, the trustee has nothing but a bare, naked legal estate, unaccompanied, as we have remarked, with a single specified duty.”

It is generally held that an attempt to create a passive or dry trust in reality, under the statute of uses (C. S., 1740), results in the passage of the legal estate to the cestui que trust. Gold Mining Co. v. Lumber Co., 170 N. C., 273; Springs v. Hopkins, 171 N. C., 486; Lee v. Oates, 171 N. C., 717; Hardware Co. v. Lewis, 173 N. C., 290; Patrick v. Beatty, 202 N. C., 454.

The case of Kirkman v. Holland, 139 N. C., 185, cited by defendants, is distinguishable. In that case it was held to be an active trust. Hospital v. Crow, 186 N. C., 741 (743). The case also of Egerton, Administrator, v. Carr, 94 N. C., 648, is not in point.

In Gold Mining Co. v. Lumber Co., 170 N. C., 273, at p. 277, it is said: “As the deed created a passive as distinguished from an active trust, there being nothing for the trustee to do but to hold the legal title for the corporation, the use was executed by the statute, or, in other words, possession was transferred to the use, and the corporation thereby acquired the entire estate. Johnson v. Prairie, 91 N. C., 159; Hallyburton v. Slagle, 130 N. C., 482; Cameron v. Hicks, 141 N. C., 21.”

In the instant case the written instrument, among other things, has this in it: “Whereas, it being the desire of each and all of us to keep said stock intact and within our immediate family, in accordance with the known wish of our beloved father,” etc. Further, “That the aforesaid stock, or any part of same, and all of it is to be held intact and none of said stock is to be sold, transferred, assigned, hypothecated either directly or indirectly or by any of the parties hereto, their heirs, assigns, executors, or administrators, without first obtaining the written consent of all the parties to this agreement, or their heirs, assigns, executors, or administrators.” It would seem these additional words — “none of said stock, or any part of same, is to be sold,” etc. — were merely explanatory to the trustee, to hold the “stock intact.”

It appears from the record that since the original written instrument of 28 December, 1918, the certificates representing the stock ownership of the parties have been actually deposited with and in the possession of Sigmund Sternberger, trustee. The owners of the stock have voted their respective stock at stockholders’ meetings and have at all times received and used all dividends paid by the corporation upon their respective shares as their own individual property, and the trustee has had nothing to do with the collection or disbursement of said dividends, or the voting of said stock. Since 11 April, 1919, all of the stock certificates have been issued and registered on the books of the corporation in the name of the individual owners, except the certificates owned by Meyer Sternberger have been issued and registered in his name since 18 April, 1919.

The plaintiffs in this action pray that the trustee surrender to them the certificates of stock which they contend they own, now in his possession, and they be adjudged the owners of same. From the written instrument the trustee has no duty to perform other than to hold the certificates of “stock intact,” etc. The trustee has no active duty to perform, he was to refrain from doing anything. This did not make him an active trustee.

The written instrument was a kindly family arrangement consonant with their father’s wishes, but it gave the trustee no special or active duties to perform. Was the stock to be held “intact” forever and forever ? Who could ultimately get it ? Could it never be alienated ? If one died, who got the share? The written instrument is uncertain and indefinite as to the ultimate ownership of the certificates of stock, and in other respects. Bridges v. Pleasants, 39 N. C., 26; Weaver v. Kirby, 186 N. C., 387; 26 R. C. L., “Trusts,” sec. 20, p. 1183; 7 Pomeroy’s Equity Jurisprudence, 4th Ed., secs. 997 and 998.

The stock was never transferred to the trustee on the books of the corporation. The individual members voted the stock and received the dividends. We think under the facts and circumstances of this case that it is manifestly the duty of the court to direct that the prayer of the plaintiffs be granted. We think this is in accord with the generally accepted doctrine of trusts and the decisions of this Court.

The Constitution of North Carolina, Art. I, sec. 31, is as follows: “Perpetuities, etc. — Perpetuities and monopolies are contrary to the genius of a free state and ought not be allowed.”

Whether the written instrument is void because it imposes an unreasonable restraint upon alienation, and thus violates the rule against perpetuities, need not be decided in the instant case. Even if it be conceded that the written instrument is sufficient and valid to create a trust, and is a reasonable restraint upon alienation, it is a simple, passive or dry trust.

Do the alleged contemporaneous oral contracts and agreements set forth in the defendants’ answer and cross-action contradict and vary with the written instrument? We think so.

We think this is so obvious that it is hardly necessary to cite authorities. Roebuck v. Carson, 196 N. C., 672. The matter is recently set forth in Winstead v. Mfg. Co., ante, 110. The case of Grissom v. Sternberger, 10 Fed., 2d Series, 764, has no bearing on this controversy. There are various other matters discussed by the litigants in their able briefs that we do not think necessary to discuss, as there are no new or novel propositions of law involved.

For the reasons given, the judgment of the court below is

Affirmed.