Commercial National Bank of Charlotte v. Alexander

Adams, J. The infant defendants through their guardian ad litem appealed from the judgment, assigning for error the matters to which their four exceptions relate. The first and fourth exceptions may be considered together. - 1. Not only was the action properly constituted in the Superior Court, but the court in the exercise of its equitable powers had jurisdiction to advise and instruct the trustee as to its discharge of the duties imposed upon it by the trust. One of the most important subjects of equitable jurisdiction is that of trusts, for the interest of all parties can be protected only by a strict observance- of the terms prescribed by the instrument creating the trust. It is for this reason and others that courts of equity in the exercise of their supervisory power permit trustees to come into these tribunals and ask for advice or assistance. Accordingly in Freeman v. Cook, 41 N. C., 373, Nash, J., said: “The defendants, however, allege that they ought not to be made answerable, as they took the advice of counsel and acted on it. The answer states that they were not only advised they could not disturb the possession of Mr. Freeman, but the counsel doubted if the settlement was not void for the nonage of Mrs. Freeman, and that he was disposed to think it was void. It was very important to the defendants, not only to have good advice, but such as would sustain or remove the doubts thus expressed and protect them in their action. What course, then, ought they to have pursued? Their only safe course was to have procured the advice of a court of chancery, which they had a right to resort to. Willis on Trustees, 125; 2 Fon. Eq., 172, note c. The chancellor is the only safe and secure counsellor to trustees.” And in Alsbrook v. Reid, 89 N. C., 151, Ashe, J., approved the doctrine in this *671 language: “The former courts of 'equity entertained, ánd our Superior Courts still entertain application for advice and instructions from executors and other trustees, as to tbe discharge of trusts confided to them, and incidentally thereto, the construction and legal effect of the instrument by which they are created. But the courts of equity never exercise this advisory jurisdiction when the estate devised is a legal one, and the question as to construction is purely legal. The jurisdiction is incident to that over trusts.” See, also, Haywood v. Loan & Trust Co., 149 N. C., 208; Feild v. Alexander, 170 N. C., 303; Fisher v. Fisher, ibid., 378. The petition discloses circumstances tending to show uncertainty and doubt as to the way in which the trust should be executed,.and the trustee properly applied in the words of Nash, J., to its “only safe and secure counsellor.” 2. The defendants excepted on the ground that the judgment is not binding upon the unborn contingent remaindermen. As we understand the record the contingent remaindermen are represented not only by the trustee, but by living members of their class, and under these circumstances the exception must be overruled. The question of law is discussed in the following cases and need not be repeated here. Ex parte Dodd, 62 N. C., 98; Overman v. Tate, 114 N. C., 571; Springs v. Scott, 132 N. C., 548; McAfee v. Green, 143 N. C., 411; Lumber Co. v. Herrington, 183 N. C., 85. 3. The third exception rests on the proposition that the court had no power to ratify and confirm the contract between the petitioner, as trustee, the widow, and Walter L. Alexander. The widoVs right to dissent from the will and to enter into a contract with the residuary legatee is not denied, but involved in the proposed contract are the rights of the contingent remainderman. The paragraph in the judgment relating to the contract is as follows: “That it will not only be to the best interests' of the beneficiaries under said will, but particularly the infant contingent remaindermen, for the petitioner to carry out the terms of the agreement heretofore entered into between it and the said Lillian F. Alexander, copy of which is attached to the petition as Exhibit ‘B,? and, the court hereby expressly authorizes, empowers, and directs the petitioner to carry out the terms of said agreement in all of its particulars, and to that end hereby ratifies and confirms the same on behalf of those defendants who are under 21 years of age or are of unsound mind; the court specially finding that it will be to the best interests of said minors, etc., that said agreement, if ratified and confirmed, be carried out by the petitioner according to its tenor.” The appellants contend that the proposed contract does not involve a construction of the will, but purports to make such a disposition of *672 a part of the property as was not contemplated by the testator. But the question is whether a dissent from the will would not prevent the execution of the several trusts which the testator expressly created. In rendering the judgment the learned judge no doubt bad in mind the equitable jurisdiction of the court over the property of infants and the preservation of the corpus of the estate for the benefit of all affected by the trusts. Indeed, be directed the petitioner to carry out the terms of the agreement in all its particulars, and be specially held that the best interests of the infants would thereby best be subserved. Tbe object is not to destroy the trust but to preserve it. In fact the purpose of the decree is to carry into effect the testator’s direction that the trustee deal with the property devised in as full and ample manner as be could have dealt with it bad bis life been prolonged. 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. Tbe 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 under age. The petition states facts and circumstances which invoke the jurisdiction of a court of equity to preserve the corpus of the estate and in this way to work out what the decree adjudges to be the best interests of the infant defendants. 3 Story’s Eq. Jurisprudence, 14 ed., sec. 1742 et seq.; 10 R. C. L., 340, sec. 89; 31 C. J., 1035, sec. 97; Morris v. Gentry, 89 N. C., 248; Tate v. Mott, 96 N. C., 19. We find no reason to disturb tbe judgment, and it is hereby Affirmed.