Cutter v. American Trust Co.

Winborne, J. The appellant presents these questions: (1) Is the defendant Burton Sparling Davis, 3rd, nonresident infant, through substituted service of summons, properly before the court? (2) Is the appointment of American Trust Company as substitute trustee valid? (3) Is the order authorizing the trustee to continue to borrow money upon the policies of insurance held under the trust agreement valid? (4) Did the court have authority to modify the provisions of the trust agreement as set out in the judgment? The answer to each is “Yes.” 1. "Where the person on whom service of summons is to be made “is a nonresident, but has property in this State, and the court has jurisdie [696] tion of tbe subject of tbe action,” or “where tbe subject of tbe action is real or personal property in tbis State, and tbe defendant bas, or claims, or tbe relief demanded consists wholly or partly in excluding him from any actual or contingent lien or interest therein,” notice of summons may be published. C. S., 484 (3), (4). When tbe place of residence is known and tbe same is made to appear by affidavit, substitute personal service may be made. C. S., 491. Such service was personally made on Burton Sparling Davis, 3rd. Guardian ad litem bas been duly appointed for him and bas answered. If it be conceded that tbe said minor bas a contingent interest in tbe subject matter of tbe trust, is tbe present proceeding in rem? As evidence of debt or damages recoverable thereon, tbe policies of insurance are cboses in action. 32 C. J., 1093. A chose in action is personal property. 50 C. J., 763. Tbe situs of personal property is at tbe domicile of tbe owner. McLean v. Hardin, 56 N. C., 294; Trust Co. v. Doughton, 187 N. C., 263, 121 S. E., 741; McGehee v. McGehee, 189 N. C., 558, 127 S. E., 684. By tbe trust agreement here, tbe insurance policies are made tbe subject matter of tbe trust. Tbe court bas jurisdiction of tbe trustee, tbe bolder of tbe legal title to tbe policies. They are in its possession. Tbe proceeding relates to tbe administration of tbe trust. Consequently, tbe suit is a proceeding in rem, Ferguson v. Price, 206 N. C., 37, 173 S. E., 1, in which summons may be served by publication of notice, or by substituted service. 2. Tbe appointment of tbe American Trust Company as substitute trustee is in strict compliance with tbe provisions of section six of tbe trust agreement, in which tbe procedure is prescribed by tbe creator of tbe trust. A special proceeding is not required. Tbe approval of tbe court was unnecessary. Tbe appointment is good without it. Nevertheless, tbe approval gives judicial sanction. 3. Under section five of tbe trust agreement tbe original trustee is authorized to borrow money on tbe policies of insurance held under tbe agreement for tbe purpose of raising funds with which to pay premiums thereon. Section six provides that a trustee, appointed as therein provided to succeed tbe trustee named, “shall bold and dispose of tbe corpus and income therefrom, upon tbe same terms, conditions, uses and trust as tbe original trustee.” Undek tbis provision tbe American Trust Company, having been duly and regularly appointed substitute trustee, is vested with tbe powers of tbe original trustee. 4. "We are of opinion that tbe action of tbe court in modifying tbe administrative provisions of tbe trust agreement is proper in tbe exercise of its equitable jurisdiction. “Tbe regulation and enforcement of trusts is one of tbe original and inherent powers of a court of equity.” 21 C. J., 116. “A court of equity bas tbe power to do whatever is necessary to be done to preserve the trust from destruction, and in tbe exercise [697] of this power it may, under certain unusual circumstances, modify the terms of the trust to preserve it but not to defeat or destroy it. The courts are slow to exercise their power even to modify the terms of a trust, and will only do so when it clearly appears to be necessary. . . . So in a case where the income of the trust property is insufficient to pay the taxes, and the body of the estate is in danger of being lost entirely, the court will order the sale of all or a part of it in order to preserve it as far as possible.” 26 R. C. L., 1283; 80 A. L. R., 117. This power is recognized in this State. In the case of Trust Co. v. Nicholson, 162 N. C., 257, 78 S. E., 152, Allen, J., said: “There is high authority for the position that conditions like those before us annexed to estates, limiting the powers of trustees or cestui que trust, if valid, do not prevent the court of equity from ordering a sale of property contrary to such condition. . . .” Then he quotes from Custis v. Brown, 29 Ill., 230: “Exigencies often arise not contemplated by the party creating the trust, and, which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required; and in such cases the court must, as far as may be, occupy the place of the party creating the trust, and do with the fund what he would have dictated had he anticipated the emergency.” In Bogert on Trusts and Trustees, 1796, it is said: “The directions of the settlor as to methods of management are of secondary importance. The primary consideration is the end which he had in mind, the benefits and advantages which he desired to confer upon the beneficiaries named. In any case where there is real necessity for a revision in methods and machinery for accomplishing settlor’s fundamental purposes, equity has power to alter the terms of management in order that it may perform its vital function of bringing to the cestuis the results to which they are entitled by the terms of the investment.” In the case in hand the court makes full findings of fact showing the changed conditions and the necessity for modifying the administrative features of the trust agreement in order that the corpus of the trust be preserved for the beneficiaries. On these findings the equitable jurisdiction of the court is properly exercised. All parties, who could possibly be affected are either in, or are represented in, court. We deem it unnecessary to discuss the right to modify under the authority of C. S., 996, as the court below did not base its decision thereon. The judgment below is Affirmed.