Rice v. Wachovia Bank & Trust Co.

59 S.E.2d 803 (1950)

232 N.C. 222

RICE et al. v. WACHOVIA BANK & TRUST CO. et al.

No. 605.

Supreme Court of North Carolina.

June 9, 1950.

*806 McKinnon & McKinnon, Lumberton, W. A. Leland McKeithen, Pinehurst, and W. D. Sabiston, Jr., Carthage, for Mattie A. McLeod Rice, Julia Bryan, Margaret Thomas, Alice Bryan Johnson, Joseph Bryan, McLeod Bryan, Julia M. Bryan Caviness, and Clyde A. McLeod.

J. Talbot Johnson, Aberdeen, and H. F. Seawell, Jr., Carthage, for W. A. Rosy, Alex Rosy and Mary Rosy Marks.

*807 Spence & Boyette, Carthage, W. Frank Taylor, Goldsboro, and Joyner & Howison, Raleigh, for Wachovia Bank & Trust Co.

J. Vance Rowe, Southern Pines, guardian ad litem, "In Propria Persona", for unborn issue of Mattie A. McLeod Rice, the unborn issue of Margaret Thomas, the unborn issue of Julia Bryan, the unborn issue of W. A. Rosy, the unborn issue of children of Mattie A. McLeod Rice, the unborn issue of children of Margaret Thomas, the unborn issue of children of Julia Bryan, the unborn issue of children of W. A. Rosy; and the unborn issue of all such unborn persons.

Robert N. Page, III., Aberdeen, guardian ad litem, "In Properia Persona", for Benjamin Watson Thomas, Arthur Rice Thomas, Robert Alexander Thomas, Mary Martha Thomas, Joseph Rosy and Betty Rosy.

DENNY, Justice.

The only exception taken by the appellants was to the signing of the judgment. This exception presents the single question whether the facts found by the court are sufficient to support the judgment, or, to put it another way, whether the court correctly applied the law to the facts found. Roach v. Pritchett, 228 N.C. 747, 47 S.E.2d 20; Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E.2d 476; Swink v. Horn, 226 N.C. 713, 40 S.E.2d 353; Redwine v. Clodfelter, 226 N.C. 366, 38 S.E.2d 203; King v. Rudd, 226 N.C. 156, 37 S.E.2d 116; Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128, 168 A.L.R. 1; Fox v. Cramerton Mills, Inc., 225 N.C. 580, 35 S.E.2d 869; Rader v. Queen City Coach Co., 225 N.C. 537, 37 S.E.2d 609 and cited cases.

"Family agreements looking to the advantageous settlement of estates or to the adjustment of family differences, disputes or controversies, when approved by the court, are valid and binding. They are bottomed on a sound public policy which seeks to preserve estates and to promote and encourage family accord. Spencer v. McCleneghan, 202 N.C. 662, 163 S.E. 753; In re Estate of Wright, 204 N.C. 465, 168 S.E. 664; Reynolds v. Reynolds, 208 N.C. 578, 182 S.E. 341; Bohannon v. Trotman, 214 N.C. 706, 200 S.E. 852; Schouler, Wills, Executors and Administrators, 6th Ed., § 3103." Fish v. Hanson, 223 N.C. 143, 25 S.E.2d 461, 462; Redwine v. Clodfelter, supra; Bank of Wadesboro v. Hendley, 229 N.C. 432, 50 S.E.2d 302.

Ordinarily courts look with favor upon family settlements. But such agreements will not be approved if the rights of infants are prejudiced thereby. Neither will the terms of a testamentary trust be modified merely because the beneficiaries thereof dislike its provisions. The modification of the terms of such a trust will be approved only when such modification is deemed necessary in order to preserve the trust. Redwine v. Clodfelter, supra; In re Reynolds, 206 N.C. 276, 173 S.E. 789.

This Court, speaking through Barnhill, J., in Redwine v. Clodfelter, supra [226 N.C. 366, 38 S.E.2d 206], said: "A court of equity will not modify or permit the modification of a trust on technical objections, merely because its terms are objectionable to interested parties or their welfare will be served thereby. It must be made to appear that some exigency, contingency, or emergency has arisen which makes the action of the court indispensable to the preservation of the trust and the protection of infants. Reynolds v. Reynolds, supra, 208 N.C. 578, 182 S.E. 341; Cutter v. American Trust Co. supra, 213 N.C. 686, 197 S.E. 542; 65 C.J. 683, § 549."

In the instant case, a caveat had been filed, and the caveators represented families or persons who would have inherited five-sixths of the testator's estate, had the will been set aside. Moreover, if the caveators had insisted upon pressing the caveat proceedings, and had been successful in setting the will aside, the devises to the heirs at law of W. A. Rosy, Julia Bryan and Mattie A. Rice would have been defeated. This created an exigency not contemplated by the testator. The parties, in view of this exigency, reached an agreement which provides for the preservation of the corpus of the trust estate, and protects the rights of the infant beneficiaries therein. *808 The trust provisions are modified to the extent of permitting and directing the income from the estate to be distributed annually, rather than to accumulate for 21 years. And the annual income due the infant devisees, pending the termination of the trust, will be paid to their respective guardians, to be used or preserved for their benefit. The settlement, under the circumstances, appears to be advantageous to the infant devisees.

The trial judge, in the exercise of the judicial discretion of a chancellor in the supervision of trusts and estates of infants, approved the settlement and directed that its terms be carried out.

The Executor and Trustee is likewise given the instructions it requested in its answer, with respect to the administration of the trust estate.

No reason for disturbing the judgment entered below is made to appear.

Affirmed.