Baker v. Cox

335 S.E.2d 71 (1985)

John BAKER v. Johnnie Lee COX, Individually and as Executor of the Estate of James Graham (Reverend James A. Graham) and First American Federal Savings and Loan Association.

No. 858SC195.

Court of Appeals of North Carolina.

October 15, 1985.

*72 Harrison & Heath by Fred W. Harrison, Kinston, for plaintiff, appellant.

Joretta Durant, Kinston, for defendant, appellee Johnnie Lee Cox.

Allen, Hooten & Hodges, P.A. by John M. Martin, Kinston, for defendant, appellee First American Federal Sav. & Loan Ass'n.

HEDRICK, Chief Judge.

Plaintiff calls upon us to determine the validity of a tentative or "Totten" trust in North Carolina. In jurisdictions which recognized them, tentative trusts are created when a deposit is made by the depositor in his own name in trust for another. See In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904). The parties to this action cite Wescott v. Bank, 227 N.C. 39, 40 S.E.2d 461 (1946), Ridge v. Bright, 244 N.C. 345, 93 S.E.2d 607 (1956), Sinclair v. Travis, 231 N.C. 345, 57 S.E.2d 394 (1950), Kyle v. Groce, 50 N.C.App. 204, 272 S.E.2d 609 (1980), Baxter v. Jones, 14 N.C.App. 296, 188 S.E.2d 622, cert. denied, 281 N.C. 621, 190 S.E.2d 465 (1972), Williams v. Mullen, 31 N.C.App. 41, 228 S.E.2d 512 (1976) and In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904) in discussing the validity of tentative trusts in Carolina. Since 1 May 1981, the validity of tentative trusts in savings and loan associations has been controlled by N.C. Gen.Stat. Sec. 54B-130 which provides in pertinent part:

(a) If any one or more persons holding or opening a withdrawable account shall execute a written agreement with the association, providing for the account to be held in the name of such person or persons as trustee or trustees for one or more persons designated as beneficiaries, the account and any balance thereof shall be held as a trust account, and unless otherwise agreed upon between the trustees and the association: (1) Any such trustee during his lifetime may change any designated beneficiaries by a written direction to the association; and (2) Any such trustee may withdraw or receive payment in cash or check payable to his personal order, and such payment or withdrawal shall constitute a revocation of the agreement as to the amount withdrawn; and (3) Upon the death of the surviving trustee, the person or persons designated as beneficiaries who are living at the death of the surviving trustee shall be the holder or holders of the account, as joint owners with right of survivorship if more than one, and payment by the association to the holder or any of them shall be a total discharge of the association's obligation as to the amount paid.

James Graham executed the required written agreement with the defendant Savings & Loan Association and, therefore, a valid tentative trust was created pursuant to N.C.Gen.Stat. Sec. 54B-130.

Plaintiff argues that the general power of attorney exercised by defendant Cox authorized Cox to transact the business of James Graham but not the business of James Graham trustee for the benefit of Baker and Roberson. Our research reveals no decision of our courts as to whether the holder of a general power of attorney may withdraw money from a tentative trust. However, the special nature of tentative trusts created pursuant to N.C.Gen.Stat. Sec. 54B-130 leads us to conclude that tentative trusts in savings and loan associations created pursuant to N.C.Gen.Stat. Sec. 54B-130 may be revoked to the extent that funds are withdrawn by a holder of a general power of attorney before the death of the trustee of the trust account.

The judgment appealed from is affirmed.

Affirmed.

BECTON and PARKER, JJ., concur.