Young v. . Hood, Comr. of Banks

Stacy, C. J. A reversal of the present judgment was adumbrated or foreshadowed by the decisions in Hood, Comr., v. Trust Co. and Brand, ante, 367, and Parker v. Hood, Comr., ante, 494. The Brand case, supra, is a direct authority against the position taken in the “Young Case,” and the decision in Packer v. Hood, Comr., supra, is contrary to the preferential part of the judgment rendered in the “Cheshire Case.” *805 It should be observed that here the trustor himself placed several restrictions upon the trustee. Investments were not to be changed without the written consent of certain of the income beneficiaries, and in case of a sale of the bank stock, the consent of the president of the bank, if living, was also to be obtained. These restrictions ought to he considered in passing upon the management of the estate. Hester v. Hester, 16 N. C., 328; Crayton v. Fowler, 140 S. C., 517, 130 S. E., 161; Bogart on Trusts, sec. 681, et seq.j 26 R. C. L., 1307, et seq. A trustor is privileged to impose terms and conditions upon the administration of his estate, as well as to select the agencies for the distribution of his bounty. Crabb v. Young, 92 N. Y., 56. In the instant case, the trustee is held to have breached his trust in exchanging the Citizens National Bank stock for stock in the North Carolina Bank and Trust Company “without first procuring the consent of the children of A. B. Andrews as required by the will,” which seems to be at variance with the written proxy authorization appearing of record; and again the trustee is charged with a breach of trust for holding the bank stock when there is no evidence that the requisite consent to sell could have been secured at any time, or that the trustee deemed “the further holding of said stock detrimental to the best interest of said trust estate.” Stroud v. Stroud, 206 N. C., 668, 175 S. E., 131. Indeed, the proffered testimony of the defendants that the trustee was of a contrary opinion and that the requisite consent to sell would not have been forthcoming, had it been requested, was excluded. Likewise, the defendants’ evidence tending to establish the bona fides of the trustee’s management of the estate was excluded. This was error. Fisher v. Fisher, 170 N. C., 378, 87 S. E., 113; Carter v. Young, 193 N. C., 678, 137 S. E., 875; Sheets v. Tob. Co., 195 N. C., 149, 141 S. E., 355; 26 R. C. L., 1310. It appears somewhat inconsistent to hold the investment in the bank stock valid as to the income beneficiaries and invalid as to their children in the “Young Case,” and then void as to both in the “Cheshire Case,” yet this is the effect of the judgment entered below. It would seem, therefore, that, in result, the income beneficiaries win both ways and on opposite theories. Lannin v. Buckley, 256 Mass., 78, 152 N. E., 71; International Trust Co. v. Preston, 24 Wyo., 163, 156 Pac., 1128; Bogart, supra, sec. 689. They “keep their cake and'eat it too.” Whitmire v. Ins. Co., 205 N. C., 101, 170 S. E., 118. The record discloses they were close advisers and consultants of the trustee. At least one of them was director or officer of the trustee bank as well as of the Citizens National Bank. The case turns on the alleged mala fides of the former trustee, or trustees, in the management of the estate. It is conceded the defend *806 ants’ 119tb exception, above set out, goes to tbe heart of tbe ease. Tbis exception must be sustained, as it is not supported by tbe record. Sheets v. Tob. Co., supra; Carter v. Young, supra. Tbe trustor bad a peculiar interest in retaining tbe bank investment, not only because of bis long association witb tbe business, but also on account of tbe bope be cherished for tbe promotion of one of bis sons in tbe same enterprise. Tbe situation partakes of tbe unusual, which equity regards. McNinch v. Trust Co., 183 N. C., 33, 110 S. E., 663. It would serve no useful purpose to consider tbe remaining exceptions seriatim, as tbe trial court apparently was misled by tbe application of inapposite principles. Tbe judgment will be stricken out and tbe causes remanded for judgment accordant herewith. Error.