Moore v. Wachovia Bank & Trust Co.

BROCK, Chief Judge. Plaintiff’s sole assignment of error challenges the entry of the judgment. Plaintiff contends that the trust was created for her benefit, that she possesses the only beneficial interest, and that the trust is therefore terminable at her will. We do not believe that the facts support this contention. ¡ [677] “A court of equity may have the power to terminate a trust and distribute the trust property prior to the happening of the contingency prescribed by the trustor, but only when such action is necessary or expedient.” 7 Strong, N. C. Index 2d, Trusts, § 10 (1968) ; Wachovia Bank & Trust Co. v. Laws, 217 N.C. 171, 7 S.E. 2d 470; Davison v. Duke University, 282 N.C. 676, 194 S.E. 2d 761. “[T]he condition or emergency asserted must be one not contemplated by the testator and which, had it been anticipated, would undoubtedly have been provided for; . . . ” Carter v. Kempton, 233 N.C. 1, 6, 62 S.E. 2d 713. Although plaintiff’s challenge stems from her dissatisfaction with the consideration and benefits of the trust, and with the administration of the trust, we cannot say that these are conditions or emergencies which were not contemplated by the testator. Trusts will not be modified on technical objections merely because interested parties’ welfare will be served thereby. Carter v. Kempton, supra. Furthermore, the grandchildren of the tester have, under the terms of the will, an expectancy in the marital trust. As interested parties, the trust cannot be terminated without their consent. Solon Lodge v. Ionic Lodge, 247 N.C. 310, 101 S.E. 2d 8. “It is not the province of the courts to substitute their judgment or the wishes of the beneficiaries for the judgment and wishes of the testator. The controlling objective is to preserve the trust and effectuate the primary purpose of the testator.” Carter v. Kempton, supra at 6. The trial court’s entry of judgment dismissing the action was correct. Affirmed. Judges Britt and Clark concur.