Opinion
14044
April 15, 1935.
Before SHIPP, J., Calhoun, April, 1934. Affirmed in part, and reversed in part.
Action by T.M. Wannamaker and others against the South Carolina State Bank, Idella K. Wannamaker, and others. From a decree, named defendants appeal.
Report of the Special Referee and the decree of the Circuit Judge, ordered to be reported, follow:
REPORT OF SPECIAL REFEREEThis case was referred to me under a general order of reference, and I have held such references as the counsel engaged therein have desired, and have had all testimony offered taken.
The case was duly commenced by the service of the summons, with notices, and the complaint upon all of the defendants.
The summons, with notices, and the complaint were also served upon the parents of all of the infant defendants under fourteen years of age, as such infant defendants resided with their respective parents. All of the infant defendants appear in this action by duly appointed guardian ad litem.
The complaint alleges that Capt. Whitfield W. Wannamaker, a resident of this county, died some years ago, leaving of force his last will and testament, which has been duly admitted to probate, and which among other things created a trust consisting of all of his personal property, which has been converted into cash and which now amounts, exclusive of interest paid as accruing to the named beneficiaries, to something over $21,000.00, and appointing the Home Bank, of St. Matthews, S.C. as trustee, and that this bank, ceasing to do business, has been succeeded by the South Carolina State Bank, who has undertaken to performance of the trust, and further that such trust was created for the benefit of the five children of the testator and his grandchildren, under the terms stated in the trust clause of the will, which is hereinafter set out in full.
The complaint states that on account of the well-known economic and financial conditions prevailing in this country for the past several years the children of the testator have become largely indigent, and unable to properly support and maintain their children, the grandchildren of the testator, and that the needs of such grandchildren have become urgent and imperative, so that the Court of Equity, exercising its broad and comprehensive powers, ought to authorize and direct the trustee to pay them now, with the assent of the life beneficiaries, such reasonable sums as will relieve their present needs.
Three of the life beneficiaries, each having children, bring this action, and the other two file answers concurring in the prayer for relief.
The life beneficiary, Idella K. Wannamaker, herein defendant, and who has never married, being about fifty-two years of age, not only concurs in the prayer for relief, but sets up in her answer that she is also in great need, and prays the Court to make some proper provision for her relief and maintenance at the present time.
Several of the adult grandchildren file answers joining in the prayer for relief.
All of the infant grandchildren file formal answers by their duly appointed guardian ad litem.
The trustee-defendant, the South Carolina State Bank, files its answer stating that under the terms of the will creating the trust no distribution of any portion of the corpus can be made at this time, because the will expressly provides that the trust shall continue until the death of the last child of the testator, and because the interests of the grandchildren are contingent under the terms of the trust.
The following is a copy of the fifth clause of Capt. Wannamaker's will wherein he creates the trust in question: "5. The rest and residue of my personal property of every kind and nature whatsoever, I give to the Home Bank of St. Matthews, South Carolina. In Trust Nevertheless, that all the said funds and values thereof shall be invested in safe securities and the proceeds arising from such investment to be equally divided between my said children for and during the terms of their natural lives, and in the event of the death of any of my said children, then their respective share of such proceeds to go to their children, if any, and in case of the death of any child without leaving children or lineal descendants, their respective shares to be equally divided among the survivors of them. This Trust to remain of force until the death of all of my said children, and then to their children or lineal descendants, forever, such lineal descendants to take per stirpes and not per capita."
The clause under consideration creates a trust in personalty now amounting to over $20,000.00 invested in bonds of the counties of Greenville and Orangeburg bearing 5 per centum interest, with the South Carolina State Bank as successor trustee to the Home Bank, named as trustee in the will.
Undoubtedly, the five children of the testator under the language of the trust clause of the will take a life estate in equal proportions in the trust fund, being entitled to the income or interest thereon until death; thus leaving as a remainder the entire corpus of the trust.
Is this remainder vested or contingent? Chancellor Kent declares (4 Com., 203), that "the law favors vested estates and no remainder will be construed to be contingent which may, consistently with the intention (of the testator), be deemed vested."
In the case of Faber v. Police, 10 S.C. 376, 386, Associate Justice (later Chief Justice) McIver, speaking for the Court, declared: "This rule, by its very terms, admits, as it should do, the paramount importance of the intention of the testator, which must necessarily override every other rule and be the governing principle, otherwise the Court instead of the testator would make the will. Hence, when the testator's intention can be discovered it must necessarily be carried out, unless it is inconsistent with the law of the land. In looking for this intention we must be guided by the words which the testator has used, reading them in the light of established principles of law."
Guided by these established rules of law, what was the testator's intention in respect to the remainder?
First of all, he evidently intended that the trust fund should be treated as composed of five separate and distinct units; each unit being represented by one of his children.
The scheme of the trust was that each of his five children should enjoy the income from his or her respective unit of the trust fund so long as he or she lived; then upon the death of any one of his children the income from that child's share or unit should go to the child or children of the parent dying so that such grandchild or grandchildren would take for the time being the income which the parent would have taken, if alive, from the trust fund.
However, if such child of the testator so dying should die without issue, his or her unit would go equally to the surviving child or children of the testator to be used and disposed of under the trust, thus reducing the number of original shares or units.
This plan, under the language of the trust, was intended to continue until the death of all of the children of the testator; whereupon there should be a distribution of the corpus.
The right to take in the remainder accrued to each grandchild upon birth, but enjoyment was postponed until the death of the last child of the testator.
The only contingency attached to the corpus of the trust fund is in respect to how much each grandchild will take when the time for distribution arrives, this depending in each case on how many children each parent has, and whether or not any child of the testator dies without issue, which, of course, does not affect the question of whether the right to take is fixed, and the remainder, therefore vested.
The trust clause in the will does not contain any limitation of survivorship or divestiture.
The gift is to children as a class with the provision that the distribution shall be per stirpes, not per capita, strengthening the conclusion that it was the intention of the testator that his grandchildren should take a vested remainder.
Under our cases the grandchildren of the testator take when born a vested, not a contingent, remainder in the corpus of the trust estate. Walker v. Alverson, 87 S.C. 55, 57, 68 S.E., 966, 30 L.R.A. (N.S.), 115, et seq.; Faber v. Police, supra.
A proper construction of the trust clause in the will shows:
1. That an active testamentary trust of personalty is created in the will.
2. That the Home Bank (since succeeded by the defendant South Carolina State Bank) was constituted trustee.
3. That the sole duties imposed upon the trustee were and are: (a) To safely invest and keep invested the trust fund: (b) to collect and pay the interest to the five children of the testator so long as they live; and (c) to distribute the corpus upon the death of the children of the testator, terminating the trust.
4. That the five children of the testator take as a life estate the interest on or income from the trust fund.
5. Each child of each respective child of the testator when born takes a vested remainder in the corpus, varying in amount according to the number of children born to the several and respective parents, and also depending upon whether any one or more of the five children of the testator die without issue born to them.
6. If any child or children of the testator die without issue born to them, then that one-fifth of the corpus of the trust estate which would have gone to his, her, or their children goes to the children of the other brothers or sisters.
7. The right of each grandchild to take under the will is vested when born, and not contingent; the only contingency being in respect to the amount which each grandchild, or his children or estate, will take at the time of the distribution of the corpus.
8. If any grandchild die before distribution of the corpus, then his or her child or children will take per stirpes, not per capita, the parent's share.
9. The time for termination of the trust is fixed at the death of the last child of the testator.
The complaint does not ask for a termination of the trust nor for a distribution of the corpus; but with the assent and approval of the life beneficiaries asks that the Court of Equity, exercising its broad and comprehensive jurisdiction in respect to trusts, authorize and direct the trustee to pay the now living vested beneficiaries a reasonable amount from the corpus of the trust estate for their support and maintenance, alleging that their needs in this regard have become urgent and imperative.
The trustee, doubting the jurisdiction of the Court to grant the relief prayed for, contends that the rights of the infant beneficiaries are contingent, not vested, and that for this reason and because of the express language contained in the trust clause of the will there can be no distribution, in whole or in part, until the termination of the trust upon the death of all of the children of the testator.
And these divergent contentions make two questions, one of fact and the other of law, to be determined in this action, namely:
1. Are the living beneficiary grandchildren of the testator as a matter of fact in urgent and imperative need of aid from the trust fund for their maintenance and support?
2. Can the Court of Equity, as a matter of correct legal principle, and in the light of the language used in the will creating the trust, authorize and direct the trustee to use a stipulated portion of the corpus of the trust estate to relieve the present needs of the living beneficiary grandchildren of the testator?
The evidence adduced in the case clearly establishes the allegations contained in the complaint that the grandchildren of the testator, all of whom are parties to the action, are in urgent and imperative need of money for their proper sustenance, maintenance, and education, and I so find as a matter of fact.
This condition has been brought about largely by reason of the economic and financial conditions which have overwhelmed this country for the last several years, and of which the Court is bound to, and does, take judicial cognizance. Southern, etc., v. Cudd, 166 S.C. 108, 115, 164 S.C. 428.
The testator when he made his will in 1921, and when he died a few years later, could not have foreseen this condition; else as a prudent and thoughtful man he would have provided against such ravaging and unprecedented conditions by endowing his trustee with discretionary powers to deal with such adverse and unforeseen circumstances.
But the question, after all, is whether or not the Court, exercising its equity jurisdiction, may in view of the language of the trust clause of the will, even with the assent of all of the life beneficiaries, empower and direct the trustee to distribute any portion of the corpus to the remaindermen while the life beneficiaries are living, and while the possibility of further issue is present.
It is a trust with which the Court is dealing in this case, and the jurisdiction of equity in respect to trusts is plenary and exclusive.
"Courts of equity have original, inherent, plenary, and exclusive jurisdiction over all trusts and trustees. Independent of statute, Courts having equity jurisdiction have full and complete jurisdiction over trusts. The enforcement and protection of trusts is a matter peculiarly within the jurisdiction of Courts of equity, and the jurisdiction of such Courts to declare and enforce trusts and supervise the administration thereof is undoubted." 22 Encyc. Pl. Pr. 9, and many cases cited; 39 Cyc., 588-590.
While it is well settled that Courts of Equity will not ordinarily interfere with the administration of a trust by the duly constituted trustee, nor attempt to change the provisions of the trust or terminate it contrary to the expressed intention of the testator, yet the Court will upon proper showing of exigency extend its aid and permit its powers to be invoked to insure a proper and beneficial administration of the trust.
As stated by Mr. Associate Justice Hydrick for the Court in Dumas v. Carroll, 112 S.C. 284, 297, 99 S.E., 801, 804: "It must not be understood that the Courts should not exercise such power over trust estates, which is a well-recognized feature of equitable jurisdiction, as may be necessary to prevent them from going to waste, or to make necessary improvements for the maintenance of beneficiaries, or to change investments, and the like."
"Where peculiar circumstances have arisen not expressly provided for by the trust instrument, and not anticipated by its author, the Court in the emergency that has arisen has jurisdiction to sanction acts by the trustees which in ordinary circumstances they would have no power to do, and may hasten the enjoyment of trust funds in certain cases." 26 R.C.L., 1379.
The Court of Equity in a proper case and upon showing of exigency may break in upon the terms of a trust, which neither expressly nor impliedly authorizes such a course to be taken, by directing all or a part of the income or principal of the trust estate to be expended for the benefit of the beneficiaries of the trust before the time fixed for its enjoyment; but such powers should be exercised with great auction, and only where the rights are vested. Bennett v. Trust Company, 127 Tenn., 126, 153 S.W. 840, 46 L.R.A. (N.S.), 43, Ann. Cas., 1914-A, 1045, and annotation.
In a leading case ( Ruggles v. Tyson, 104 Wis. 500, 79 N.W., 766, 81 N.W., 367, 48 L.R.A., 809, 811, et seq., and cases cited) it is said: "The Court has jurisdiction of the entire title to the property, and of all persons interested therein, or that may be interested, whether as owners of precedent or dependent, vested or contingent estates, for the purpose of this action. Plaintiff owns a life estate in the property and the defendants a vested estate in remainder, subject to be opened to admit future children of plaintiff. * * *"
Speaking of trust estates and trustees, Judge Harper in the case of Haigood v. Wells, reported in 1 Hill, Eq., 59, 60, for the Court of Appeals, states that ordinarily the trustee should not be allowed to expend more than income from a trust estate for the support of minors, but "in some cases, however, of manifest necessity, this has been authorized by the Court, and when done by a trustee in such a case as the Court would have authorized, has been subsequently sanctioned."
Again, in the case of Morton's Ex'rs v. Adams, reported in 1 Strob., Eq., 72, 76, Chancellor Dunkin for the Court, and in speaking of trust estates and trustees states: "Without some special emergency to be justified by the Court, he [trustee] cannot encroach on the capital, but confining his discretion to the appropriation of income, he may be guided by the wants of the cestui que trust."
Thus it is seen that our Courts have in the exercise of equity jurisdiction undertaken in proper cases to direct the administration of trust estates, and to authorize the trustee to encroach upon the capital or corpus in case of manifest necessity for the use, benefit, and maintenance of infant beneficiaries.
So it will be seen that the Court, in the exercise of its equity jurisdiction may, using its discretion, authorize and direct the trustee in this case to use, advance, or expend from the corpus of the trust such reasonable amounts now and from time to time as directed by the Court as may be proper and necessary for the support, maintenance, and education of the remaindermen under the trust who are now in esse as it is shown by the evidence that there is manifest necessity therefor.
The principal of the trust fund is now a little over $21,000.00, bearing 5 per centum interest per annum, or about $200.00 per annum for each of the life beneficiaries or children of the testator.
The life beneficiaries have children in number as follows: A.B. Wannamaker, three; T.M. Wannamaker, one; W. W. Wannamaker, three; and L.B. Wannamaker, one; Miss Idella K. Wannamaker, never married.
I would respectfully suggest that for the present, and until the further order of the Court, the trustee be authorized and directed to pay the remaindermen for support and maintenance the sum of $300.00 per annum per unit from the corpus of the trust estate; that is to say, to the three children of A.B. Wannamaker, $100.00 each, the child of T.M. Wannamaker, $300.00, the three children of W. W. Wannamaker, $100.00 each, and to the child of L.B. Wannamaker, $300.00, such payments to be made quarterly or semiannually.
As Special Master I find that the defendant and life beneficiary, Idella K. Wannamaker, is in indigent circumstances, having practically no income except the interest on her share of the trust fund amounting to about $200.00 per annum. In my opinion the Court can and ought to aid her by authorizing and directing the trustee to pay her until the further order of the Court, say $200.00 additional, making an aggregate of about $400.00 per annum, charging such additional payment against her prospective income from the trust fund as an advancement. A trustee may be authorized to make advancements against prospective income in cases of necessity. Morton's Ex'rs v. Adams, 1 Strob., Eq., 72, 76.
In this connection, as special matter, I would also respectfully recommend that the trustee be authorized and directed to invest upon approval of the Court the trust funds at a higher rate of interest than 5 per centum per annum; it is highly probable that such funds could be safely invested at a rate of 7 per centum interest. This, if done, would largely absorb the payments hereinabove recommended to be made from the corpus to the remaindermen.
This cause should be left open for other or further orders as may be deemed necessary by the Court in properly directing the administration of the trust estate.
The cause should also be continued under reference in order to take testimony to determine amount of costs, and to fix reasonable counsel fees for counsel engaged in the cause, as same should be paid from the trust estate. 39 Cyc., 339, 340.
Accordingly, I find and conclude, and respectfully recommend that a decretal order or judgment be entered by the Court in this case:
1. Authorizing or empowering, and directing, the trustee to pay to the children of the plaintiffs and of the defendant Arthur P. Wannamaker a reasonable sum, respectively, from the corpus of the trust estate as hereinbefore suggested for their support and maintenance.
2. Also, authorizing or empowering, and directing, the trustee to pay to the defendant Idella K. Wannamaker a reasonable sum for her support in addition to her share of the interest accruing to the trust estate as hereinbefore suggested.
3. And, also, that the case remain open for the entry of such other or further orders herein by the Court as may be deemed necessary for the proper administration of the trust.
4. That the case be continued under reference for the purpose of taking testimony for the aid of the Court in determining proper costs and counsel fees in this action.
The minutes of the references held by me are herewith submitted as a part of this report.
Respectfully submitted,
L. MARION GRESSETTE, Special Referee.DECREE OF JUDGE SHIPP
The Court has carefully considered the record in this case, which comes up on exceptions to the report of L. Marion Gressette, Esq., Special Referee.
This is a suit in equity, having for its purpose obtaining from the Court an order or decree authorizing and directing the trustee, the South Carolina State Bank, St. Matthews, S.C. to pay the vested remaindermen, with the consent of the life tenants, a stated portion of the corpus of the trust estate involved for their support and maintenance; the necessity therefor being stated to be urgent and imperative.
The complaint seeks further to authorize and direct the trustee to advance to one of the life tenants, Miss Idella K. Wannamaker, who is alleged to be in great financial distress, a reasonable amount from the corpus of the trust, in order to relieve her distress.
The trustee-bank files its answer expressing doubt as to the power or jurisdiction of the Court to grant the relief demanded in the complaint, but submits the questions to the Court for determination.
In his able report the Special Referee has stated the facts and his conclusions thereon; and has also stated his conclusions in respect to the questions of law involved, together with his recommendations.
The exceptions to the report of the Special Referee are overruled, and such report is hereby confirmed and made the judgment of the Court in all of its particulars, except as hereinafter stated.
The Court is regretfully of the opinion that under the law it has no power to authorize the trustee-bank to advance the defendant, Miss Idella K. Wannamaker, any portion of the corpus of the trust estate.
Accordingly, it is now ordered, adjudged, and decreed
1. That until the further order of the Court the trustee-bank pay from the corpus of the trust estate the amounts recommended in the report of the Special Referee, such payments to be made semiannually, and to the said children if above the age of eighteen years, or to their respective fathers if under that age.
2. That the cause be continued under reference to the Special Referee to take testimony and to report what would be reasonable counsel fees for counsel for the parties, and the costs of the suit, together with any other special matter.
3. That any party to this action have leave at any time to apply for any other or further order herein, and the case is left open for this purpose.
Mr. J.A. Merritt, for appellant, the South Carolina State Bank, trustee, cites: Contingent remaindermen: 20 S.C. 71. As to distribution of corpus of trust fund: 112 S.C. 297; 46 S.C. 262; 150 S.C. 114; 101 S.C. 1; 148 S.C. 62; 149 S.C. 545; 162 S.C. 478.
Mr. William C. Wolfe, for respondents, and appellant, Idella K. Wannamaker, cites: As to vested remainder: 116 S.C. 127; 107 S.E., 26; 107 S.C. 105; 91 S.E., 986; 87 S.C. 66; 23 R.C.L., 532; 26 R.C.L., 1379; 46 L.R.A. (N.S.), 43; 46 L.R.A., 811; 39 Cyc., 588; 3 Rich. Eq., 1; 157 S.C. 45.
Mr. T.A. Houser as guardian ad litem for infant defendants.
April 15, 1935. The opinion of the Court was delivered by
W.W. Wannamaker, late of Calhoun County, by his will created a trust fund of which the Home Bank of St. Matthews was made trustee; when this bank suspended and ceased to operate, the South Carolina State Bank was substituted as trustee. By the terms of the trust, the proceeds arising from the trust funds shall be annually divided among his children during their lifetime, and at the death of the last of them, the corpus of the estate to be divided among the children of the life tenants.
The purpose of this action is to procure the order of the Court for the payment to the remaindermen of a certain part of the corpus of the estate. The complaint sets forth the grounds of the alleged necessity of breaking into the corpus of the trust fund.
The case was referred to L. Marion Gressette, Esq., who took the testimony and filed an elaborate and able report, recommending that the prayer of the complaint be granted.
Exceptions to this report were heard by Judge Shipp, who confirmed the report except as to its recommendation in favor of Idella K. Wannamaker.
The appeal by the South Carolina State Bank and Idella K. Wannamaker is from that order.
The cardinal and controlling issues made by the exceptions are these:
Is the remainder to the grandchildren of the testator vested, or contingent?
Was there necessity for the invasion of the corpus of the trust fund?
The language of the will creating the remainders is in these words: "5. The rest and residue of my personal property of every kind and nature whatsoever, I give to the Home Bank of St. Matthews, South Carolina, In Trust Nevertheless, that all the said funds and values thereof shall be invested in safe securities and the proceeds arising from such investment to be equally divided between my said children for and during the terms of their natural lives, and in the event of the death of any of my said children, then their respective share of such proceeds to go to their children, if any, and in case of the death of any child without leaving children or lineal descendants, their respective shares to be equally divided among the survivors of them. This Trust to remain of force until the death of all my said children, and then to their children or lineal descendants, forever, such lineal descendants to take per stirpes and not per capita."
The Special Referee held that the remainder was a vested one, and in this the Circuit Judge concurred.
The always interesting, and always difficult of solution, question of remainders, has been elaborately and learnedly treated by textwriters, reference books, and Courts. The compendium of the law on the subject, in so far as the Courts of this jurisdiction are concerned, has been compiled and declared by three learned jurists of this Court.
In the case of Faber v. Police, 10 S.C. 376, 387, Mr. Chief Justice McIver said: "According to the elementary writers a vested remainder is one which is limited to an ascertained person in being, whose right to the estate is fixed and certain, and does not depend upon the happening of any future event, but whose enjoyment in possession is postponed to some future time. A contingent remainder, on the other hand, is one which is limited to a person not in being or not ascertained; or if limited to an ascertained person, it is so limited that his right to the estate depends upon some contingency in the future."
In the case of Walker v. Alverson, 87 S.C. 55, 68 S.E., 966, 967, 30 L.R.A. (N.S.), 115, Mr. Associate Justice Hydrick said: "The law favors the vesting of estates at the earliest time possible; and no remainder will be construed to be contingent which may consistently with the intention be deemed vested. 4 Kent, 195. `Whenever there is a doubt as to the quantity of the estate devised, or whether it is vested, the rule is to presume that the testator intended to give an absolute rather than a qualified estate, and a vested rather than a contingent interest; and even where the words import a contingency, but do not create a condition precedent, they give a vested interest to the devisee, subject, however, to be divested if the contingency should not happen.' Citing Smith v. Hillard, 3 Strob. Eq. [211] 223, 224."
In the case of Avinger v. Avinger, 116 S.C. 125, 107 S.E., 26, 28, Mr. Associate Justice Cothran, in his concurring opinion, concurs with the quoted utterances of Mr. Chief Justice McIver in Faber v. Police, supra, and Mr. Associate Justice Hydrick in Walker v. Alverson, supra, and adds this: "A further essential element is that the person, to take in remainder, must be an ascertained person, in being at the time of the creation of the remainder. There is some diversity of opinion in the authorities whether or not this requirement is fulfilled where the remainder constitutes a class, such as heirs, children, etc., and one case particularly in this state appears to take the negative view of this question. Lemmon v. McElroy, 113 S.E. [532], 537, 101 S.E., 852. The overwhelming weight of authority in this state, however, in my opinion, sustains the affirmative." Citing numerous authorities from this State.
Guided by the opinions of these eminent jurists of our own Court, and applying them to the present case, we are compelled to the view that the remainder here under consideration is a vested one.
The record does not contain in full the will of the testator, nor does it contain the testimony taken by the Special Referee and reported to the Circuit Court. This Court, therefore, has nothing upon which it may found an independent opinion whether there was necessity sufficient for invading the corpus estate. However, the Special Referee and the Circuit Judge have concurred in the finding of fact that such necessity did exist and this Court will not interfere with the finding.
There is no doubt that Courts of equity may in proper cases interfere with the disposition and employment of trust estates and trust funds, but the Court takes occasion to emphasize the admonition, heretofore given, that such power of the Court should be exercised only in cases of real necessity.
The report of the Special Referee contains the following recommendation: "In this connection as special matter, I would also respectfully recommend that the trustee be authorized and directed to invest upon the approval of the Court the trust funds at a higher rate of interest than five per centum per annum. It is highly probable that such funds could be safely invested at a rate of seven per centum interest."
This recommendation was confirmed by the decree of the Circuit Judge.
This Court thinks such action was going beyond the power of the Court to interfere with the management of the trust funds by the trustee.
True, it is the duty of the trustee to so invest the funds as to obtain the highest rate therefrom — consistent with safety. Such investment must be left to the judgment of the trustee, subject, of course, to the revision of the Court if occasion therefor be shown.
The decree of the Circuit Judge is reversed in this particular; in all other respects it is affirmed.
MR. JUSTICE CARTER and MESSRS. ACTING ASSOCIATE JUSTICES WM. H. GRIMBALL and G.B. GREENE concur.
MR. CHIEF JUSTICE STABLER did not participate in the decision of this case.