
126 S.E.2d 140 (1962)
257 N.C. 303
Bereniece Bailey STELLINGS, Audrienne Bailey Autry and husband, J. Murchison Autry, George Bailey Autry (single), Isabel Stellings Holmes and husband, E. Mayo Holmes, Jr., Princess Stellings Williams and husband, Edward S. Williams, Jr.
v.
Audrienne Isabel Bailey AUTRY, E. Mayo Holmes, III, Mark R. Holmes, S. Gregory Holmes, Christopher A. Holmes, Lauraine B. Holmes, Princess Ann Williams, Martha M. Williams, Edward S. Williams, III, The Unborn Descendants of George W. Bailey, and Wachovia Bank & Trust Company, Trustee Under the Will of George W. Bailey.
No. 166.
Supreme Court of North Carolina.
June 15, 1962.
*153 Poisson, Marshall, Barnhill & Williams, Wilmington, for defendant Wachovia Bank & Trust Company and defendant Napoleon Barefoot, guardian ad litem, appellants.
Carter, Murchison, Fox & Newton, Wilmington, for plaintiffs-appellees.
BOBBITT, Justice.
With reference to Trust No. 1, the provisions of the will as construed by the trustee are not materially affected by the alleged family settlement agreement. Each of the two daughters received 20% of the income of Trust No. 1 until the death of their mother; and since then each has received and will continue to receive for life 25% of the income thereof. Too, upon the death of each daughter, the income she would receive if living is to be paid to her descendants, per stirpes, until termination of the trust.
But, with reference to Trust No. 2, the alleged family settlement agreement does materially alter the provisions of the will as construed by the trustee. It provides, in effect, that the assets of Trust No. 2 as of May 7, 1959, consisting largely of investments made from income theretofore received from Trust No. 1 and income from such investments, shall thereafter constitute the corpus of Trust No. 2; that there shall be no further investment of income of Trust No. 2; that one-half of all income thereafter received by Trust No. 2, whether from Trust No. 1 or from assets in Trust No. 2 on May 7, 1959, shall be paid to each of the two daughters for life; and that upon the death of each daughter the amount she would receive if living shall be paid to her descendants, per stirpes, until termination of the trust. (Note: Plaintiffs alleged the assets of George W. Bailey, at the time of his death, exclusive of the Wilmington Theatres, Inc., stock, "consisted of a small amount of bonds.")
The two daughters, and the three grandchildren who survived George W. Bailey, are plaintiffs herein. They are the parties to the alleged family settlement agreement and are the only present and prospective beneficiaries of the trusts living on June 30, 1940, when George W. Bailey died. Under the trustee's construction, the trusts terminate twenty-one years after the death of the last survivor of these five persons; and none of them will ever receive any part of the corpus. Obviously, the administration of the trusts in accordance with the alleged family settlement agreement will substantially increase the income to be presently received from Trust No. 2 by the two daughters and the prospective income to be received by said three grandchildren.
Under the trustee's construction, the trusts terminate and the corpus is distributable twenty-one years after the death of the last survivor of the two daughters and said three grandchildren; and, when this event occurs, the persons to receive the corpus will be the named defendants, who are minors, or lineal descendants of George W. Bailey hereafter born. Clearly, the corpus of Trust No. 2 to be then distributed will be much greater if Trust No. 2 is administered in accordance with the trustee's construction rather than in accordance with the alleged family settlement agreement.
With reference to family differences allegedly composed by the settlement agreement, these facts are noted: Only the two daughters and three grandchildren who survived George W. Bailey were involved in such family differences. Moreover, their differences relate to whether actions should be instituted (1) for construction of the trust provisions of the will of George W. Bailey, and (2) to declare invalid the provisions relating to the duration of the trusts.
There is no evidence to support the findings that the proposed or threatened actions "would plunge the family into litigation * * * for a long period of time *154 and would be attended by an enormous amount of expense" and that "the family agreement will prevent dissipation and waste" of the assets of the trusts. Nothing appears to indicate the proposed or threatened actions would be more protracted, involved or expensive than the present litigation.
Moreover, we find no evidence to support findings that approval of the alleged family settlement agreement will allay family dissensions. Conceding the differences as between the plaintiffs as to whether such suits should be instituted were composed by the settlement agreement, approval thereof may well become quite disturbing to the named defendants (now minors) and to lineal descendants of George W. Bailey hereafter born. In this connection, it is noted that the named defendants are (1) a child of plaintiff Audrienne Bailey Autry, (2) five children of plaintiff Isabel Stellings Holmes, and (3) three children of plaintiff Princess Stellings Williams; and further, that the guardian ad litem for these nine named defendants did not appeal from the judgment or appear by brief or otherwise in this Court.
The will of George W. Bailey was probated July 5, 1940; and since then the trustee has administered the trusts in accordance with its construction of the provisions of the will relating thereto.
The present factual situation differs from that in cases where a family settlement agreement is entered into to avoid threatened destruction of testamentary trusts by caveat, e. g., Wagner v. Honbaier, 248 N.C. 363, 103 S.E.2d 474, or by dissent, e. g., Commercial Nat. Bank of Charlotte v. Alexander, 188 N.C. 667, 125 S.E. 385. Too, it differs from that in cases where pending or threatened litigation involves multiple complicated questions, factual as well as legal, and is of such nature as to dissipate the trust estate and adversely affect the interests of minors, e. g., Reynolds v. Reynolds, 208 N.C. 578, 182 S.E. 341. Here, the proposed or threatened suits related solely to the construction of the trust provisions of the will and the determination of the validity of the provisions relating to the duration of the trusts.
It may be conceded that plaintiffs were uncertain as to the outcome of the proposed or threatened suits in the superior court or in this Court. Even so, the court must consider the trust provisions of the will. Whether the alleged family settlement agreement is advantageous to the nine named defendants and the lineal descendants of George W. Bailey hereafter born must be determined in relation to their rights under the will of George W. Bailey as construed by this Court.
There are material limitations upon the right to alter by family settlement agreement the terms of a testamentary trust. Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713; Redwine v. Clodfelter, 226 N.C. 366, 38 S.E.2d 203; Wachovia Bank & Trust Co. v. Buchan, 256 N.C. 142, 153, 123 S.E.2d 489. These limitations, as stated by Barnhill, J. (later C. J.), in Carter v. Kempton, supra, are as follows:
"(1) The will creating a 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. The power of the court is exercised not to defeat or destroy, but to preserve, it.
"(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.
"(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 *155 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. (Citations)
"(4) To invoke the jurisdiction of a court of equity the condition or emergency asserted must be one not contemplated by the testator and which, had it been anticipated, would undoubtedly have been provided for; and in affording relief against such exigency or emergency, the court must, as far as possible, place itself in the position of the testator and do with the trust estate what the testator would have done had he anticipated the emergency. (Citation) 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. (Citations)
"(5) The exigency, contingency, or emergency necessary to invite the intervention of the courts must relate to and grow out of the trust itself or directly affect the corpus thereof or the income therefrom."
In the present case there is no exigency, contingency or emergency related to or growing out of the trusts themselves or directly affecting the corpus thereof or the income therefrom. It appears the trusts are well preserved. The questions presented relate solely to the respective interests of present and future beneficiaries.
George W. Bailey's will clearly designates the assets of each trust and the beneficiaries thereof, present and prospective. The will does not provide, expressly or by implication, that "the Trustee shall pay all of the net income received after the beginning of the current trust year (said date being on or about May 7, 1959) by said Trust No. 2, from whatever source derived, including all net income received from Trust No. 1, equally to Bereniece Bailey Sutton during her life, and to Audrienne Bailey Autry during her life," or that "(u)pon the death of Bereniece Bailey Sutton or Audrienne Bailey Autry," such net income "shall be paid to the descendants of said decedent, per stirpes, during their respective lives." These (quoted) provisions of the alleged family settlement agreement are in direct conflict with the trust provisions of the will.
The only provision of the will, with reference to disbursements to be made to the two daughters from Trust No. 2 (and, upon the death of each daughter to her descendants, per stirpes, until termination of the trusts), is the following: "Upon the death of my wife I direct that my Trustee, herein named, shall see that my two daughters receive not less than Two Hundred and Fifty Dollars ($250.00) per month each during their respective lives; these amounts to be made up, first, from the insurance payments which after the death of my wife will be paid by the Insurance Companies to my daughters, and, secondly, from the dividends of Wilmington Theatres, Inc., as hereinbefore bequeathed to them under Trust No. One, and, thirdly, from the income or principal of this Trust, if the Trustee finds it necessary to make any supplements from this Trust No. Two for said purposes." Clearly, this provision contemplates payments to the testator's daughters from Trust No. 2 only in the event the income of each from the insurance provided by the testator and from the Wilmington Theatres, Inc., stock is less than $250.00 per month and in such event to supplement the income only to the extent necessary to provide each an income of $250.00 per month.
Even so, plaintiffs contend there is a serious question as to whether the trusts are void ab initio on the ground the provisions thereof violate the rule against perpetuities. If this is a serious question, it arises solely *156 from the provisions of the will and must be resolved by the court before the court can determine whether the alleged family settlement agreement is advantageous to the nine named defendants and the lineal descendants of George W. Bailey hereafter born. The court cannot discharge its judicial responsibility by a declaration that a serious legal question of this nature is presented. Presently, we are not concerned with a will where, on account of vagueness, ambiguity or conflict in the provisions thereof, the testator's intentions cannot be ascertained, e. g., Bank of Wadesboro v. Hendley, 229 N.C. 432, 50 S.E.2d 302.
"The rule against perpetuities prohibits the creation of future interests or estates which by possibility may not become vested within a life or lives in being at the time of the testator's death or the effective date of the instrument creating the future interest, and twenty-one years thereafter, together with the period of gestation when the inclusion of the latter is necessary to cover cases of posthumous birth. Stated affirmatively, the rule against perpetuities allows the postponement of the vesting of an estate or interest for the period of lives in being and twenty-one years and the period of gestation." (Our italics) 41 Am. Jur., Perpetuities and Restraints on Alienation § 3; 70 C.J.S. Perpetuities § 4; Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899, and cases cited therein.
Plaintiffs, in support of their contention that a serious question is presented, cite Fitchie v. Brown, 211 U.S. 321, 29 S.Ct. 106, 53 L.Ed. 202, in which the will under consideration provided: "`The balance, residue, or remainder of my estate is to be placed in trust for as long a period as is legally possible, the termination or ending of said trust to take place when the law requires it under the statute.'" The will directed that the trustee "devote sufficient of the annual income" toward paying specified amounts to named annuitants for life, "and then to their heirs." The Supreme Court of the United States affirmed a decision of the Supreme Court of the Territory of Hawaii ordering that a decree be entered directing the trustee to pay the specified amounts to the named annuitants "for and during their respective lives, and thereafter to pay the same to their heirs respectively until the end of twenty-one years after the death of the last survivor of all the said annuitants, * * * and, at the end of said twenty-one years, to divide the trust fund and its accumulated and unapplied income as required by the direction in that behalf contained in the will."
In Farmers Nat. Bank of Cynthiana v. McKenney (Ky.), 264 S.W.2d 881, cited by plaintiffs, the will provided that the income from the trust should be paid in equal parts to the testator's three half sisters as long as they lived, and upon the death of each, her share should be paid to "her heirs, if any, as long as the law allows". Commissioner Clay, speaking for the court, said: "If he (the testator) had disposed of the corpus of the trust or devised and bequeathed the fee in his property to some ultimate beneficiary, we may have had some key to his intention." Again: "* * * we find the principal vice of Item IV to be such uncertainty that we cannot ascertain the true purpose or intent of the testator." The trust provision was held void for uncertainty.
George W. Bailey's lineal descendants are the only beneficiaries, present or prospective, of the trusts created by his will. The provision as to the termination of each trust is in the same language, to wit: "* * * until such time as the Law of Perpetuity shall cause this Trust to be dissolved, at which time my Trustee is directed to pay over the remainder of the corpus and accrued income to my legal descendants entitled to such property at that time, per stirpes."
The provisions of George W. Bailey's will manifest his clear intention that the trusts shall continue as long as permissible under the "Law of Perpetuity." *157 His deliberate use of this term must be given significance. It indicates the testator intended, wisely or unwisely, that the trusts should continue as long as legally permissible. To determine the duration of the trusts otherwise than according to the "Law of Perpetuity" would defeat rather than effectuate the testator's intent. To effectuate the testator's intent, the "Law of Perpetuity" must be related to the beneficiaries, present and prospective, who were living on June 30, 1940, when George W. Bailey died, the two daughters and three grandchildren; and in our opinion, and we so decide, the trusts, under the "Law of Perpetuity," terminate twenty-one years after the death of the last survivor of these five persons. Decision to this effect is, in our view, in full accord with the intention of the testator. It is also in accord with Fitchie v. Brown, supra.
It is noteworthy that the provision of the alleged family settlement agreement with reference to the termination of each trust and the trustee's construction are in accord as to when the trusts terminate. But they differ greatly with reference to the value of the assets of Trust No. 2 to be distributed to the ultimate takers.
"In ascertaining the intent of the testator, the will is to be considered in the light of the conditions and circumstances existing at the time the will was made." Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151, and cases cited; Wachovia Bank & Trust Co. v. Wolfe, 243 N.C. 469, 473, 91 S.E.2d 246.
The clear intent of the testator, when he executed his will was to provide for immediate payment of one-half of the income from his Wilmington Theatres, Inc., stock, the only asset of Trust No. 1, to designated beneficiaries and to provide (subject to the provision quoted above with reference to supplementing income from other sources to the extent necessary to provide each daughter $250.00 per month) for the accumulation and investment of the remaining one-half as assets of Trust No. 2. It is noted that this provision as to supplementing the income of each daughter, if necessary, did not become effective until the death of George W. Bailey's widow.
The record does not disclose the income received by George W. Bailey from his Wilmington Theatres, Inc., stock prior to June 22, 1937, the date of his will, or from then until his death on June 30, 1940. If the income therefrom during the earlier years of the trust exceeded the testator's reasonable expectations, each of the two daughters benefited thereby in receiving twenty and later twenty-five per cent of such income.
It does' appear that, during the earlier years of the trusts, the income from the Wilmington Theatres, Inc., stock was substantially more than the income therefrom in recent years. Too, it appears the present assets of Wilmington Theatres, Inc., consist of conservative investments with the result that the income presently received by each of the two daughters therefrom is substantially less than the income each received therefrom in the earlier years of the trusts.
We cannot know whether George W. Bailey, if now living, would make a different disposition of his estate. Nor is it our function to speculate as to what he would or might do under present circumstances. "The authority and responsibility to interpret or construe a will rest solely on the court. Its objective is to ascertain the intent of the testator, as expressed in the will, when he made it." Wachovia Bank & Trust Co. v. Wolfe, supra, and cases cited. As stated recently by Moore, J., in Keesler v. North Carolina Nat. Bank, 256 N.C. 12, 20, 122 S.E.2d 807, 813: "It is contrary to the holdings and inclination of this Court to make a will for a decedent so as to meet the convenience and wishes of interested parties."
*158 Undoubtedly, plaintiffs entered into and seek approval of the alleged family settlement agreement in good faith; and it may well be it provides a more reasonable distribution. Even so, the distribution provided therein is not in accord with the intent of the testator, as expressed in the will, when he made it.
Since it substantially alters the provisions of the will of George W. Bailey as construed by this Court and does or may substantially impair without compensating benefits the interests of the nine named defendants and the interests of lineal descendants of George W. Bailey hereafter born, the alleged family settlement agreement cannot be approved by this Court. To what extent, if any, the interest of Audrienne Isabel Bailey Autry, the granddaughter of the testator born after his death, or of the other eight named defendants, great-grand-children of George W. Bailey, or of any other grandchild, great-grandchild or lineal descendant of George W. Bailey hereafter born, will be impaired, cannot be foreseen. This will depend upon the date the trusts terminate and the identity of the ultimate takers. Suffice to say, the interest of certain of the lineal descendants of George W. Bailey, presently unidentifiable, will be seriously affected and impaired. Hence, the judgment of the court below is reversed.
It is unnecessary, in view of the foregoing disposition of this appeal, to consider whether the lineal descendants of George W. Bailey hereafter born would be bound by a judgment adverse to them. In this connection, see McPherson v. First & Citizens Nat. Bank, 240 N.C. 1, 81 S.E.2d 386, and the provision of the 1955 statute now codified (in the 1961 Supplement) as G.S. § 1-65.2.
Reversed.
SHARP, J., took no part in the consideratior or decision of this case.
