Redwine v. Clodfelter

Barnhill, J.

The only exception in the record is to the signing of the judgment. This exception presents the single question whether the facts found by the court are sufficient to support the judgment, or, stated differently, whether the court correctly applied the law to the facts found.

Rader v. Coach Co., 225 N. C., 537 ;

Fox v. Mills, Inc., 225 N. C., 580 ;

Lee v. Board of Adjustment, ante, 107;

King v. Rudd, ante, 156;

Shuford v. Building & Loan Asso., 210 N. C., 237 , 186 S. E., 352 .

“Family agreements looking to the advantageous settlement of estates or to the adjustment of family differences, disputes or controversies, when approved by the court, are valid and binding. They are bottomed on a sound public policy which seeks to preserve estates and to promote and encourage family accord.

Spencer v. McCleneghan, 202 N. C., 662 , 163 S. E., 753 ;

In re Estate of Wright, 204 N. C., 465 , 168 S. E., 664 ;

Reynolds v. Reynolds, 208 N. C., 578 , 182 S. E., 341 ;

Bohannon v. Trotman, 214 N. C., 706 , 200 S. E., 852 ; Schouler, Wills, Executors and Administrators (6d), sec. 3103.”

Fish v. Hanson, 223 N. C., 143 , 25 S. E. (2d), 461 ;

Bailey v. McLain, 215 N. C., 150 , 1 S. E. (2d), 372 . When fairly made they are favorites of the law.

Tise v. Hicks, 191 N. C., 609 , 132 S. E., 560 ;

Bohannon v. Trotman, supra; In re Will of McLelland, 207 N. C., 375 , 177 S. E., 19 .

*370 When, however, the settlement relates to a testamentary trust and the rights of infants are affected the following basic legal considerations are controlling:

(1) The will creating the trust is not to be treated as an instrument to be amended or revoked at the will of devisees or to be sustained sub modo only after something has been sweated out of it for the heirs at law.

Bailey v. McLain, supra.

The power of the court is exercised not to defeat or destroy the trust but to preserve it.

Cutter v. Trust Co., 213 N. C., 686 , 197 S. E., 542 ;

Penick v. Bank, 218 N. C., 686 , 12 S. E. (2d), 253 ;

Duffy v. Duffy, 221 N. C., 521 , 20 S. E. (2d), 835 .

(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 affects the rights of infants. Their welfare is the guiding star in determining its reasonableness and validity.

In re Reynolds, 206 N. C., 276 , 173 S. E., 789 .

(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.

Reynolds v. Reynolds, supra; Cutter v. Trust Co., supra;

65 C. J., 683, sec. 549.

"Weighing the facts found in the light of these considerations we are of the opinion that they are fully sufficient to sustain the decision of the court below.

There was an impending caveat, based on substantial evidence, which would disrupt the family and, in all probability, involve long, costly, and asset-consuming litigation. This created an exigency not contemplated by the testator which seriously affected the welfare of the infants and threatened to impair materially, if not to destroy, their inheritance. The interested parties reached an agreement, the terms of which satisfied the demands of the dissident children and at the same time preserved the trust to the extent that the infant parties will finally realize benefits substantially equal to those accruing under the original devise.

The trial judge, exercising the judicial discretion of a chancellor in the supervision of trusts and estates of infants, approved the settlement and directed its execution. The discretion was his. No cause for disturbing his decree is made to appear. Hence the judgment is Affirmed.