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Contract — Charitable Pledge – Scholarship Endowment – Donor’s Death – Incomplete Gift – Trusts & Estates

East Carolina University Foundation, Inc. v. First Citizens Bank & Trust Co. (Lawyers Weekly No. 14-16-1096, 12 pp.) (Sanford Steelman Jr., J.) Appealed from Forsyth County Superior Court (Robert Johnson, J.) N.C. App. Unpub.

Holding: Where the complaint alleged that (1) Louise Thomas pledged $1,190,000 to plaintiff in exchange for plaintiff’s promise to designate the monies as per Thomas’ instructions, (2) this constituted an enforceable contract with unambiguous terms for a charitable pledge based on sufficient consideration, but (3) defendant – Thomas’ executor and trustee – refused to honor the contract when Thomas died before delivering the funds to plaintiff, the complaint stated a claim for breach of contract.

We affirm the trial court’s dismissal of plaintiff’s completed gift and express trust claims, but we reverse the dismissal of plaintiff’s breach of contract claim.

An exchange of a pledge and a promise to designate funds as directed constitutes sufficient consideration to support a contract. Rutherford College, Inc. v. Payne, 209 N.C. 792, 184 S.E. 827 (1936).

Even if we were to accept defendant’s contention that there was no meeting of the minds with regard to the alleged agreement, that matter is for the trier of fact to decide, not for the trial court to address on a motion to dismiss.

However, since the funds remained within Thomas’ control and in her name at all times, there was no actual or constructive delivery divesting Thomas of any right to the funds. Consequently, there was no completed gift.

As to plaintiff’s express trust claim, the complaint does not allege that Thomas entrusted the earmarked funds to another party for the benefit of plaintiff. Nor does the complaint demonstrate a promise by any trustee to hold the property in trust for the benefit of plaintiff. Accordingly, the trial court correctly dismissed plaintiff’s claim for express trust.

Affirmed in part and reversed in part.

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