IN THE MATTER OF THE TESTAMENTARY TRUST OF ETHYLENE R. CHARNOCK, DECEASED No. 326A03FILED: 25 JUNE 2004Trusts--modification--appointment of trustees--subject matter jurisdictionThe trial court did not err by dismissing based on lack of subject matter jurisdiction petitioner=s case arising out of a request for modificationof a trust seeking to remove the trustee designated by the testatrix and to appoint new co-trustees, because: (1) the request for modification of the trust was properly characterized as a motion for removal of respondent-appellee as trustee; and (2) the plain language of N.C.G.S. ' 36A-23.1(a) provides that the clerk of superior court has exclusive jurisdiction over the removal and appointment of trustees.Appeal pursuant to N.C.G.S. ' 7A-30(2) from the decision of a divided panel of the Court of Appeals, 158 N.C. App. 35, 579 S.E.2d 887 (2003), affirming a judgment entered 23 May 2002 by Judge Catherine C. Eagles in Superior Court, Guilford County. Heard in the Supreme Court 18 November 2003.Wyatt Early Harris Wheeler, LLP, by William E. Wheeler, for petitioner-appellants Sabrina C. Schumaker, Cleta Mae Kearns, Bernice Ragsdale, Delbert Ragsdale, Faedene Maness, and DaisyVestal.Molly N. Howard for guardian ad litem-appellee.Robinson, Bradshaw & Hinson, P.A., by Edward F. Hennessey, IV, for respondent-appellee Ben Farmer.PARKER, Justice.The issue before this Court is whether the Court of Appeals erredin affirming an order dismissing petitioners= case for lack of subject matter jurisdiction.On 8 July 1999 Ethylene R. Charnock (decedent) executed a will that had been prepared for her by respondent Ben Farmer. Ms. Charnock=s will left her entire estate in an irrevocable trust for the benefit of her daughter, Sabrina C. Schumaker (Schumaker), for life. The trust provided that any unexpended principal and trust income left over at Schumaker=s death would be paid over to Ms. Charnock=s five siblings (or to the living issue of any predeceasing sibling) in fee simple. The will named Ben Farmer as trustee, with High Point Bank and Trust Company named as an alternate trustee in the event Ben Farmer was unable to serve as Trustee for any reason. The will included a direction Ato apply so much of the principal and net income thereof to the support, education, welfare, and maintenance of [Schumaker] as my Trustee shall deem necessary and proper.@ The will also directed the trustee to consider written instructions or opinions given tohim by Ms. Charnock before her death. Ms. Charnock wrote a note dated 5 September 1999 which read:Also issue to Sabrina [a] monthly check in the amount of $500. This with the $550 (TIAA) and insurance should be sufficient for the time being. $500 could easily be generated from interest on the CD=s. I want to hold as much as possible for her future -- but in case of medical emergency use your judgment.This letter, given to Ben Farmer by Ms. Charnock, also directed that A[a]t mydeath Sabrina is to receive anything in my home . . . she needs.@Ms. Charnock died on 2 February 2000. Respondent Ben Farmer acted as trustee and funded the trust. At Schumaker=s request respondent agreed not to sell the house as he had intended. Respondent asserts that he and Schumaker agreed that Schumaker and her husband could live in Ms.Charnock=s house and that the trust would pay the real estate taxes, insurance, major repairs, and yard maintenance; this arrangement was to bein lieu of Schumaker=s $500 monthly check. In March of 2001 Schumaker, through counsel, requested the $500 monthly payments from the trust. Respondent wrote to Schumaker telling her that he would begin paying her that amount if she elected to move out of the house.Decedent=s five siblings and Schumaker entered into a AConsent and Agreement of Beneficiaries to Modification of Trust@ (consent and agreement) and filed a AProceeding for Modification of a Trust@ (petition) on 14 February 2002 in superior court. The proposed modification was to change the number of trustees and to replace Ben Farmer as trustee with substitute co-trustees Wendy Heafner (a grandniece of decedent) and High Point Bank and Trust Company. Petitioners cited dissatisfaction with the conduct of Ben Farmer as trustee as the reason for the modification request. A guardian ad litem was appointed by the court to represent the interests of any unknown or unborn potential beneficiaries of the trust. The guardian ad litem consented to the modification.On 23 May 2002 the trial court entered judgment granting respondent=s motion to dismiss for lack of subject matter jurisdiction. Costs of the action were taxed to the petitioners.A divided panel of the Court of Appeals upheld the dismissal of the petition for lack of subject matter jurisdiction. In re Testamentary Tr. of Charnock, 158 N.C. App. 35, 579 S.E.2d 887 (2003). The Court of Appeals majority concluded that the request for modification of the trust was Aproperly characterized as a motion for removal of appellee as trustee.@Id. at 41, 579 S.E.2d at 891. Therefore, the request fell under N.C.G.S. ' 36A-23.1(a), which provides that clerks of superior court have exclusive jurisdiction over proceedings to remove a trustee. N.C.G.S. ' 36A-23.1(a) (2001). In his dissent, Judge Wynn stated his opinion that the General Assembly Aexpressly created an alternative mechanism for beneficiaries to remove a trustee: namely, removal without cause@ by enacting N.C.G.S. ' 36A-125.4(a). Charnock, 158 N.C. App. at 47, 579 S.E.2d at 894. Thus, by this reasoning, the superior court had subject matter jurisdiction to hear the petition.Before this Court the petitioners contend that their request to modify the trust by changing the number of trustees constitutes a modification for purposes of N.C.G.S. ' 36A-125.4, bringing this matter withinthe jurisdiction of the superior court. N.C.G.S. ' 36A-125.4 (2001). We disagree.At the time this proceeding was instituted, section 36A-23.1(a) directed that[t]he clerks of superior court of this State haveoriginal jurisdiction over all proceedings initiated by interested persons concerning the internal affairs of trusts except proceedings to modify or terminate trusts. Except as provided in subdivision (3) of this subsection, the clerk=s jurisdiction is exclusive. Proceedings that may be maintained under this subsection are those concerning the administration and distribution of trusts, the declaration of rights, and the determination of other
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