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Trusts and Estates
University of North Carolina School of Law
Davis, Adrienne M.B.

Trusts and Estates
        I.            Introduction
a.      The right the Inherit and the Right to Convey
                                                              i.      Hodel v. Irving (1987) Supreme Court pg. 3
1.      1983 Indian Land Consolidation Act: certain fractional interests could not be transferred by intestacy, escheat to the tribe, trying to solve problems with parcels of land having 100s of fractional owners; Irving is a Sioux Indian with a fractional interest sues, taking without compensation in violation of 5th Amendment
2.      Rule: The complete abolition of the rights of an owner to dispose of property rights is a taking without just compensation, violating the owners rights guaranteed under the 5th Amendment.
3.      Holding: Yes, it is a taking. Complete abolition of the rights of an owner to dispose of property rights is a taking.
a.      Penn Central takings test:
                                                                                                                                      i.      Economic impact
1.      not insignificant
                                                                                                                                    ii.      Interference with Investment backed expectations
1.      P does not fair as well
                                                                                                                                  iii.      Character of government action
1.      extraordinary for gov’t to take away right to pass on property to heirs
4.      Who’s rights are we enforcing? Dead or the living?
5.      Until 1980s: right to pass property at death was not a natural right or constitutional protected (views of Jefferson and Blackstone) reflected in:
a.      Irving Trust Co. v. Day (1942)
                                                                                                                                      i.      Rights of succession to property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction
                                                            ii.      Westcott v. First & Citizens National Bank of Elizabeth City  (1946)
1.      Soldier places money in a bank, wants to make it “in trust for” If he dies he wants it to go

ee and trustee manages for benefit of some named beneficiary. Settlor is no longer the owner
2.      Beneficiary has equitable title. Trustee has legal title, and is obligated to manage assets for the benefit of the beneficiary, owes fiduciary obligations 
3.      Division of Legal/ Equitable Title
                                                                                                                                    ii.      Why not a trust?
1.      no transfer of title, wants ongoing access to the money, in his mind the money is still his
2.      No transfer of title, administer assets for you or for the benefit of a 3rd person
c.      Not a gift
                                                                                                                                      i.      No delivery
Ergo: sisters get the money, can’t enter into agreement because they are minors and represented by a guardian ad liteum (do what’s in economic best interest), can’t take into account family harmony