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

320 S.E.2d 669 (1984)

312 N.C. 74

Watson N. SHERROD, Jr., individually, May Holton Sherrod, et al. v. ANY CHILD OR CHILDREN HEREAFTER BORN TO WATSON N. SHERROD, JR. and any Child or Children, Born or Unborn, or Known or Unknown who may Hereafter be Adopted by Watson N. Sherrod; Roy A. Cooper, Jr., guardian ad litem of any child or children hereafter born to Watson N. Sherrod, Jr.; et al.

No. 637A83.

Supreme Court of North Carolina.

October 2, 1984.

John E. Davenport, Nashville, for plaintiffs-appellees.

Valentine, Adams, Lamar & Etheridge by Franklin L. Adams, Jr., Nashville, guardian ad litem for any child or children hereafter adopted by Watson N. Sherrod, Jr., defendants-appellants.

Fields, Cooper & Henderson by Leon Henderson, Jr., Rocky Mount, guardian ad litem for any child or children hereafter born to Watson N. Sherrod, Jr., defendants-appellants.

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 *670 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.

BRANCH, C.J., did not participate in the consideration or decision of this case.