Let the reasons in full as taken down by the stenographer be reported with and attached hereto as the grounds in detail upon which this order is granted. Messrs. Harby, Nash Hodges, for appellant, cite: Aproceeding is void where Court does not have power to grantthe particular relief attempted to be granted: 33 C.J., 1076; 15 R.C.L., 853; 5 S.E., 176; 112 N.W., 386; 11 L.R.A. (N.S.), 803. No Court has jurisdiction to destroy remaindersunless the interests of remaindermen are preservedin some lawful manner: 101 S.C. 1; 128 S.C. 254; 115 S.C. 35; 117 S.C. 475; 3 Rich, Eq., 1; 112 S.C. 284; 116 S.C. 7; Sec. 5324, Code; 12 Rich, Eq., 114; 80 S.C. 501. Same, to sell property of infant remainderman to paydebt of life tenant, nor without adequate necessity for suchsale: 117 S.C. 175; 115 S.C. 35; Id., 10. Upon birth ofchild here remainder vested in it: Dudley Eq., 201; 16 S.C. 316; 66 S.C. 155. As to failure to confirm sale: 108 S.E., 411. Contingent remainders not destroyed by mergerhere: 14 R.C.L., 216. Child en ventre sa mere consideredas person in being: 2 Bail., 231; 18 S.C. 47. Cases distinguished: 74 S.C. 42. Messrs. Epps Levy and W.C. Davis, for respondent, cite: Decree in rem bars interest of subsequently born contingentremainderman: 3 Rich. Eq., 1; 22 S.C. 331; 28 S.C. 189; 80 S.C. 501; 79 S.C. 364; 23 S.C. 514; 144 S.C. 509. As primary interests: 22 S.C. 412; 115 S.C. 10. As to authority of Court of equity to order sale ofproperty: 135 S.C. 183; 115 S.C. 35. Order confirmingsale relates back to time of sal
ection 67-6 of the South Carolina Code of Laws of 1962; 89 C.J.S., Trust, Section 45, pages 790, 791; 231 S.C. 98, 97 S.E.2d 257; 238 S.C. 167, 119 S.E.2d 660; 198 S.C. 4057, 18 S.E.2d 1; 221 S.C. 360, 70 S.E.2d 637; 104 N.E.2d 246, 411 Ill. 345; 221 S.C. 429, 70 S.E.2d 816; Restatement of Trust, Section 411, Comment "q"; 2 Story Eq. Jur. (Fourteenth Edition) Section 1322; Restatement of Trust, Section 337 Reporters Notes (e). As to the Circuit Judge's committingerror in not funding and concluding that if the trust were avalid trust, then it was a discretionary trust and the trusteehad, therefore, full discretion as to whether or not to makepayments from the trust and to whom benefits would be payableamong the beneficiaries; Scott on Trust, Section 128.3 at pages 1016, 1017; 127 S.C. 359, 120 S.E. 705; 239 S.C. 170, 122 S.E.2d 1. As to the Circuit Judge's committingerror in finding and concluding that the allegedTrust was executed by the Statute of Uses: 90 C.J.S. Trust, Section 177; 128 S.C. 254, 121 S.E. 783; 51 S.C. 271, 29 S.E. 82. Robert J. Thomas, Esq., of Columbia, for Respondent, cites: As to Item V of the Will creating a trust: 46 S.C. 522, 24 S.E. 370; 236 S.C. 420, 114 S.E.2d 765; 161 S.C. 170, 159 S.E. 26, 80 A.L.R. 997; 126 S.C. 89, 119 S.E. 383. As to the use being executed by the Statute ofUses: Statute of Uses, Section 67-8, Code of Laws of S.C. 1962; 123 S.C. 371, 116 S.E. 7; 52 S.C. 88, 29 S.E. 394; 36 S.C. 365, 15 S.E. 341; 29 S.C. 135, 7 S.E. 53; 217 S.C. 168, 60 S.E.2d 82; 143 S.C. 277, 141 S.E. 448; 127 S.C. 359, 120 705; 46 S.C. 522, 24 S.E. 370. As tothe trust being terminated: 221 S.C. 429, 70 S.E.2d 860.
April 6, 1955.William H. Grimball, Jr., Esq., of Charleston, for Appellant, cites: As to doctrine of res adjudicata not beingapplicable in instant case: 128 S.C. 254, 121 S.E. 783. As to the Courts having no power to terminate an activetrust: 186 S.C. 352, 195 S.E. 835; 148 S.C. 52, 145 S.E. 623. As to the Act of the General Assembly incorporatingthe Church not executing the trust: 2 Rich. Eq. 192. As to the church not acquiring title by adverse possession: 78 S.C. 143, 59 S.E. 986; 1 Am. Jur. 835; 2 Rich. Eq. 198; 1 Des. Eq. 154. Messrs. Waring Brockinton, of Charleston, for Respondent, cite: As to essential elements of doctrine of resadjudicata: 118 S.C. 470, 111 S.E. 17. As to the identityof the parties: 54 A.J., Trusts, secs. 584, 585; 39 A.J., Parties, Secs. 44, 51; 30 A.J. 962, Judgments, Secs. 225, 228; 80 S.C. 80, 61 S.E. 218. As to identity of thesubject matter: 214 S.C. 177, 51 S.E.2d 622; 30 A.J., Judgments, Sec. 172; 118 S. C: 470, 111 S.E. 17. As tothe trust, established by the Indenture of May 9, 1713, beingexecuted by the Act of the General Assembly of March17, 1785: 45 A.J., Religious Societies, Sec. 48; 76 C.J.S. 827, Religious Societies, Sec.
In Newberry v. Walker, 162 S.C. 478, 161 S.E., 100, this Court held that a proceeding to sell does not divest the interests of unborn remaindermen unless such proceeding complies with the rules announced in Bofil v. Fisher; Gainesv. Sullivan, and Des Champs v. Mims, supra. That is to say, the sale must be made to preserve the trust and not to destroy it. In Dumas v. Carroll, 112 S.C. 284, at page 296, 99 S.E., 801; this Court held that it had no power to make or modify deeds or wills made according to law; that the Courts should see to it that the rights of infants or of unborn remaindermen are not injuriously affected; and that it is their duty not to allow parties to alter or destroy trusts; and that the powers of Courts over trusts should be exercised with caution so as to preserve rather than to destroy them. See, also, Piegler v. Jeffries, 128 S.C. 254, at page 263, 121 S.E., 783, and cases therein cited. In Cagle v. Schaefer, 115 S.C. 35, at page 44, 104 S.E., 321, the Court on appeal, speaking of the sale ordered by the Circuit Court, states that there is no testimony that the sale is for the benefit of remaindermen or even for the benefit of the life tenant, except to gratify his desire to unfetter the land from the limitations of the will.
Action by Francis E. Thomson against John G. Ehrlich and others. From the judgment John G. Ehrlich and certain other defendants appealed. Messrs. Monteith Monteith, and D.W. Robinson, and D.W. Robinson, Jr., for appellants, cite: As to executionof power: 14 S.C. 528; 1 Story Eq. Jur. (14th Ed.), 246; 4 Kent., 329; 94 S.C. 6; 32 A.L.R., 1395; 1 L.R.A., 545; 116 S.C. 298; 132 Atl., 671; 99 Atl., 145. As tointention: 140 S.E., 596; 124 S.C. 443, 451; 131 S.C. 232; 118 S.E., 510; 115 S.C. 145; 113 S.C. 416; 89 S.C. 561; 61 S.C. 164; 19 S.C. 297-306; 16 S.C. 220-226; 15 S.C. 337-359; 10 S.C. 354; 28 R.C.L., 214, Sec. 174. No execution of power here under South Carolinalaw: 14 S.C. 528; 116 S.C. 298; 128 S.C. 254; 28 S.C. 545; 112 S.C. 431; 131 S.C. 529; 115 S.C. 145; 140 S.E., 596. Messrs. Benet, Shand McGowan, for respondent, cite: Where evidence to sustain finding of Referee or Master itwill not be disturbed: 36 S.C. 287; 85 S.C. 444. Sameconfirmed by Circuit Court will not be disturbed unlessmanifest error is made to appear: 96 S.C. 106; 100 S.C. 167; 101 S.C. 362; 101 S.C. 462; 114 S.C. 186; 28 S.C. 303; 35 S.C. 298; 37 S.C. 579; 38 S C., 410; 35 S.C. 511; 37 S.C. 200. Exceptions toogeneral not considered: Sec. Rule 4 Sup. Ct.; 48 S.C. 324, 94 S.C. 3. Not properly reported: Original record No. 8454, office of Clerk of Sup. Ct. Official report impeachable: Black's Law of Jud. Prec., 141.
We are of the opinion that the widow, brother, and sister could not, by agreement, nor could the court, by decree founded upon such agreement, terminate the trust during the lifetime of the widow. Idem; Olsen v. Youngerman, 136 Iowa 404; In re Estate of Rawlings, 81 Iowa 701; Shelton v. King, 229 U.S. 90; Closset v. Burtchaell, 112 Or. 585 (230 P. 554); Steele. v. Smith, 84 S.C. 464 (66 S.E. 200); Sears v. Choate, 146 Mass. 395 (15 N.E. 786); Cuthbert v. Chauvet, 136 N.Y. 326 (32 N.E. 1088); Mauldin v. Mauldin, 101 S.C. 1 ( 85 S.E. 60); Piegler v. Jefferies (S.C.), 121 S.E. 783. We are of the opinion that Rench v. Rench, 184 Iowa 1372, and Everett v. Croskrey, 92 Iowa 333, are not applicable to the facts of this case.
Since there is still a material purpose of the trust to be accomplished, the circuit court correctly refused to hold the trust has been terminated. See Piegler v.Jeffries, 128 S.C. 254, 121 S.E. 783 (1924) (beneficiary of life estate may not terminate trust by consent where declaration of trust shows such result not intended to be); Kirkland v.Mercantile-Safe Deposit Trust Co. of Baltimore, 218 Md. 17, 145 A.2d 230 (1958). II.