85 S.E. 60 | S.C. | 1915
April 15, 1915. The opinion of the Court was delivered by Mr. W.L. Mauldin died leaving of force his last will and testament. This will gave much dissatisfaction to some of his children. A lawsuit was threatened. To avoid a family unpleasantness, an agreement was made, and this action was brought to carry out the terms of this engagement. Inasmuch as the family settlement cannot be confirmed, it is well to say as little about the will as practicable, in order that this Court may not seem to decide any question the parties may desire to litigate in future. It is conceded that the agreement proposes a sale and distribution of the funds in anticipation of the time fixed by the will. It is also conceded that there are two minors who may have an interest as contingent remaindermen, and who are made parties to represent themselves and any other contingent remaindermen, yet unborn, who may become entitled to an interest in the property.
There are only two questions involved: (1) Shall the time of sale be anticipated? (2) Shall the time of distribution be anticipated?
1. The right to sell trust property is clear. That the power shall exist is sometimes desirable, sometimes necessary. This power should be exercised with the utmost caution at all times. It is not enough that the beneficiaries of the trust are willing for a sale, or even that they are anxious for it. If the law contemplated that the cestui que trust shall control the property, then the trustee is a useless incumbrance. The necessity for, or advantage *6 of, the sale must appear. The testator owned the property and, in theory of law, at least, was allowed by the law to dispose of it as he pleased, unless restrained by some positive prohibition.
The owner and holder of the $300,000 worth of real estate is a man whose judgment as to its continued management is entitled to be respected, and not to be disregarded, unless there is cogent reason for it. The reason must appear. The record shows no reason why Mr. Mauldin's judgment should be disregarded, not even the insufficient, but frequently assigned reason, "A good price has been offered." Even if it be unnecessary to show a reason, so far as the adults are concerned, there are minors who are parties to this proceeding. Surely a due regard to their rights requires the disclosure of some reason for the change in order that the chancellor may have a basis for the exercise of his discretion. It is said that the time of sale is deferred until after the death of the widow for her benefit, and she has the right to waive it. From a reading of the whole will it may appear that the condition is made for her protection, and a protection from herself against the demands of her children. The simple question is: Should a Court sanction a settlement, demanded as the price of family peace, in which a mother is required to surrender her protection and get nothing in return? Let "the proposed settlement" be reported. It provides for a present advantage for all the adults except for mother. The contingent interest of the minors are destroyed. It must be distinctly understood it is not the mother's fault, and she has done her best to pay the "price of peace."
In Farr v. Gilreath,
Family peace is much to be desired, but if family settlements are to be sustained for no other reason than family peace, then a premium is put on family discord. The exceptions that raise this question are sustained for the want of a better showing.
2. Can the time of distribution be anticipated? It would not be proper for the Court at this time to give an authoritative construction to the will of Mr. Mauldin. It is sufficient to state that the complaint alleges that the minors are made parties to represent the contingent remaindermen. The judgment appealed from provides, not only for a sale of the property, but that the trustees shall pay out the fund now and surrender their trust in anticipation of the time provided for in the will. Until the time designated in the will shall come, no one can tell who will be entitled to the fund. The adults may consent for themselves; the minors cannot; no one can consent for them. If good title cannot be secured without a surrender of their contingent interests, then their contingent interests are valuable, and this Court is bound to protect them. The power of the Court to anticipate the time of sale is clear, but the power of the Court to destroy the rights of contingent remaindermen is a different question. Bofil v. Fisher, 26 S.C. Eq., 3 Rich. Eq. 1, 55 Am. Dec. 627, is cited as authority.Bofil v. Fisher holds that land may be sold, but that the interests of the parties, vested and contingent, are transferred to the fund. In this case the proposition is to sell the property and pay out the proceeds of sale. The result is to destroy the rights of contingent remaindermen and destroy the trust. The power to destroy trusts and deliberately defeat the rights of contingent remaindermen, is not a power the Courts will or ought to exercise, even if it exists in any Court.
*8The judgment appealed from is reversed.
