# Trustees of the L. C. Wagner Trust v. Barium Springs Home for Children, Inc.

> Court of Appeals of North Carolina · March 19, 1991 · 102 N.C. App. 136

URL: https://www.frixlaw.com/law-library/cases/8891307

## Case

- **Full name:** THE TRUSTEES OF THE L. C. WAGNER TRUST v. BARIUM SPRINGS HOME FOR CHILDREN, INC. DAVIS HOSPITAL FOUNDATION, INC. MITCHELL COMMUNITY COLLEGE GARDNER-WEBB COLLEGE JOSEPH FORESTER DAVIS JOHN C. DAVIS LOUIS M. DAVIS PATRICIA DAVIS HINTON MARY DAVIS BROYHILL (CRAIG) NELL DAVIS McCOY GEORGE C. DAVIS DAVIS HOSPITAL, INC. OLIVIA BROWN THOMAS H. BROWN KIMBALL and JOHN H. GRAY III
- **Court:** Court of Appeals of North Carolina
- **Decided:** March 19, 1991
- **Citations:** 102 N.C. App. 136; 401 S.E.2d 807; 1991 N.C. App. LEXIS 309
- **Precedential status:** Published
- **Opinion:** Concurring in part by Greene
- **Judges:** Greene, Orr, Phillips
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8891307

## Opinion text

Judge GREENE
concurring in part and dissenting in part.
With the exception of the majority’s treatment of the issue of constructive delivery of the undistributed income and capital gains, I concur in the majority opinion. With respect to the issue of constructive delivery, I dissent.
*155 I question whether there is sufficient competent evidence in the record to support the finding of fact that the Wagner Trustees considered the undistributed income and capital gains to be Davis Hospital’s property. This finding was based in large part on a resolution passed by the Wagner Trustees in December of 1983, approximately thirty-seven years after inception of the trust. Therefore, the resolution does not reveal the Wagner Trustees’ intent prior to 1983.
However, assuming that there is competent evidence to support this finding of fact, it does not support a conclusion that there was a constructive delivery of the undistributed income and capital gains. Constructive delivery requires more than intent. It requires an “unequivocal act” resulting in the surrender of control over the funds. Cf. Sinclair, 231 N.C. at 352-53, 57 S.E.2d at 399 (constructive delivery of note). Here, the majority holds that the filing of the tax returns reporting the income and capital gains as having been distributed is the necessary unequivocal act surrendering control. I disagree. The tax return entries did no more than give the trust a tax break. It did not result in the surrender of control over the funds. In fact, the Davis Hospital trustees were not even aware of the tax return entries. Furthermore, there is nothing in the record which would show that the Wagner Trustees in any way segregated the funds or made any bookkeeping entry to reflect the transfer of the income or capital gains to Davis Hospital. I see no unequivocal act resulting in the loss of control and therefore no constructive delivery of the undistributed income and capital gains. Accordingly, I would reverse the judgment of the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8891307. Public record. Not legal advice.