Wachovia Bank & Trust Company v. Buchan

123 S.E.2d 489 (1962) 256 N.C. 142

WACHOVIA BANK & TRUST COMPANY, Executor of the Estate of H. C. Buchan, Jr., Deceased, and Trustee Under the Last Will and Testament of H. C. Buchan, Jr.,
v.
Mrs. Ruth Lowe BUCHAN, Individually, and Mrs. Ruth Lowe Buchan, General Guardian for Mary Elizabeth Buchan, a minor.

No. 397.

Supreme Court of North Carolina.

January 12, 1962.

T. E. Story, North Wilkesboro, Guardian Ad Litem of Mary Elizabeth Buchan, and for defendant appellant.

W. G. Mitchell, North Wilkesboro, for defendant appellee, Ruth Lowe Buchan.

McElwee & Hall, by W. H. McElwee, North Wilkesboro, for plaintiff, Wachovia Bank & Trust Co., appellee.

PARKER, Justice.

The appellant, T. E. Story, guardian ad litem of Mary Elizabeth Buchan, has only one exception in the record, and that is to the judgment. This exception raises the question whether any error of law appears on the face of the record proper. This includes the question whether the facts found by Judge McConnell are sufficient to support the judgment. Moore v. Owens, 255 N.C. 336, 121 S.E.2d 540; City of Goldsboro v. Atlantic Coast Line R. R., 246 N.C. 101, 97 S.E.2d 486.

The testamentary trusts created by the will of H. C. Buchan, Jr., for his wife and infant daughter, with contingent interests for possible issue of his daughter, and for his heirs at law under the intestacy laws of North Carolina, if his daughter does not exercise the power of appointment vested in her by Article V(4) of her father's will and dies without issue surviving her, and also with contingent interests for his wife and daughter, are the subject matter of the agreement between Wachovia Bank and Trust Company, trustee of these trusts, and his widow, Ruth Lowe Buchan.

When a testamentary trust is the subject matter of the agreement, there are material limitations upon its application, which are clearly set forth in Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713, and in Redwine v. Clodfelter, 226 N.C. 366, 38 S.E.2d 203.

Among these limitations set forth in the Carter case are these:

"(2) The rule that the law looks with favor upon family agreements does not prevail when the rights of infants are involved. A court of equity looks with a jealous eye on a contract that materially effects the rights of infants. Their welfare is the guiding star in determining its reasonableness and validity.

"(3) 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.

"* * * (5) The exigency, contingency, or emergency necessary to invite the intervention of the courts must relate to and grow out of the trust itself or directly affect the corpus thereof or the income therefrom."

The superior court of North Carolina in its equity jurisdiction has inherent authority over the property of infants, since it stands in loco parentis, and has the same jurisdiction in this respect as that of the English High Courts of Chancery. Coxe v. Charles Stores Co., 215 N.C. 380, 1 S.E.2d 848, 121 A.L.R. 959. "It is unquestionable that courts of equity have general jurisdiction over the property of infants, and that infancy alone is sufficient to sustain the right of supervision. The jurisdiction in all cases is complete, and may be exercised in order to afford relief wherever it may be necessary to preserve and protect the estates and interests of those who are underage." Commercial Nat. Bank of Charlotte v. Alexander, 188 N.C. 667, 125 S.E. 385.

"It is well settled in this jurisdiction, at least, that, in the case of infant parties, the next friend, guardian ad litem, or guardian cannot consent to a judgment against the infant, without an investigation and approval by the court." Butler v. Winston, 223 N.C. 421, 27 S.E.2d 124.

The theory of the trial below was "that this judgment is in the nature of a family settlement." The trusts created by the will are active trusts. Fuller v. Hedgpeth, 239 N.C. 370, 80 S.E.2d 18; Strong's N.C. Index, Vol. 4, Trusts, p. 375. A settlement between Ruth Lowe Buchan and the trustee is not a family settlement. Harris v. Citizens Bank & Trust Co., 172 Va. 111, 143, 200 S.E. 652, 665; 57 Am.Jur., Wills, sec. 1005. It would seem that the family settlement doctrine is not applicable to this suit. Duffy v. Duffy, 221 N.C. 521, 20 S.E.2d 835; Deal v. Wachovia Bank & Trust Co., 218 N.C. 483, 11 S.E.2d 464.

However, the superior court of Wilkes County in the exercise of its equity jurisdiction has jurisdiction over the parties and over the subject matter of this suit concerning the trust property of the infant Mary Elizabeth Buchan, whether vested or contingent, and over the suit.

The infant Mary Elizabeth Buchan has a vested right in the trust estate created for her benefit by Article V of her father's will. She has only a contingent interest in the trust estate created for her mother, Ruth Lowe Buchan, by Article IV of her father's will. The proposed agreement between the trustee and Ruth Lowe Buchan provides for the payment to Ruth Lowe Buchan of the sum of $400,000.00 from the corpus of the trust estate created for her benefit by Article IV of the will, and that the costs shall be paid from this trust estate. However, the trust estate created for the infant Mary Elizabeth Buchan has the burden of paying all the taxes specified in Article II and Article V of the will, as set forth above. There are no definite findings of fact by Judge McConnell as to the taxable value of the estate of the late H. C. Buchan, Jr., and as to the amount of these taxes if the provisions of the will are carried out as written, or as to the amount of these taxes if the widow's dissent prevails, and she takes an intestate share of the estate. The difference in these taxes will materially affect the rights of the infant Mary Elizabeth Buchan and the corpus of the vested trust estate created for her benefit by Article V of her father's will. Based on the facts found by Judge McConnell we cannot safely and accurately determine whether the proposed settlement will adequately protect the vested trust estate of the infant Mary Elizabeth Buchan.

The briefs of the appellees state that if the proposed settlement is approved by the court, and the widow's dissent is withdrawn, it will result in substantial tax savings to the estate, and this appears from the affidavit of E. D. Beach attached to the answer of the guardian ad litem in the dissent proceeding. This affidavit assumes that the gross taxable value of the estate of H. C. Buchan, Jr., is estimated at $5,000,000.00. Will that estimate prove correct? The findings of fact and the record give no definite answer. The appellees have offered no evidence in this respect. Assuming that in this equity proceeding we have the right to review and weigh all the evidence in the case and find the facts, Greensboro Bank and Trust Co. v. Royster, 194 N.C. 799, 139 S.E. 774; McIntosh, N.C. Practice and Procedure, 2d Ed., Vol. 1, Supreme Court, sec. 61; 5A C.J.S. Appeal and Error § 1662, note 11, p. 583, where many North Carolina cases are cited, there is not sufficient evidence in the record for us safely and accurately to find the taxable value of the estate of H. C. Buchan, Jr., deceased, and the amount of taxes that will be due and payable if the terms of the will are carried out in full, or if the dissent of the widow prevails.

The possible issue of the infant Mary Elizabeth Buchan have contingent interests in the trust estate created for her benefit and the trust estate created for the benefit of the widow Ruth Lowe Buchan, which under the provisions of the will may vest. The heirs at law of H. C. Buchan, Jr., have contingent interests in the trust estate created for his widow and daughter, if his daughter dies without issue surviving her, and does not exercise the power of appointment given her by Article V(4) of the will, and these interests may vest, and these heirs at law may be in posse or in esse. The Supreme Court in the exercise of its supervisory powers, and acting ex mero motu is of the opinion that a guardian ad litem should be appointed to represent the possible issue of Mary Elizabeth Buchan, and a guardian ad litem should be appointed to represent the heirs at law of H. C. Buchan, Jr., so that their contingent interests can be protected. This language in Strong's N.C. Index, Vol. 2, Executors and Administrators, p. 345 is apposite: "Further, family settlements will not be approved when the rights of infants are not protected, nor when the agreement is to the detriment of contingent beneficiaries not in esse."

The judgment states: "* * * it is the opinion of this court and this court so finds that the proposed compromise settlement will insofar as it applies to said minor and said widow, prevent any possible family dissension regarding this matter now or in the future, * * * that this judgment is in the nature of a family settlement and is made for the sake of family harmony both for the present and for the future." That seems to be pure speculation. The will of H. C. Buchan, Jr., has many complicated and interrelated parts, and whether in the years ahead controversies will arise between the trustee, Ruth Lowe Buchan, and Mary Elizabeth Buchan in respect to its terms and provisions seems beyond the wit of man to foresee. However that may be, we are here primarily concerned with the welfare of the infant Mary Elizabeth Buchan and the protection of her vested trust estate.

The findings of fact are not sufficient to support the judgment, and further rights of contingent beneficiaries under the will are adjudicated, and we cannot determine from the findings of fact that their contingent interests have been adequately protected. It is ordered that the judgment below be vacated, and the case is remanded to the superior court for specific findings of fact in respect to the matters and things set forth in the opinion.

Error and remanded.