dissenting. I do not agree that the so-called Family
Settlement approved by the court below and in the majority opinion should be sustained.
“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.” Carter v. Kempton, 233 N.C. 1, 5, 62 S.E. 2d 713.
*51It is suggested that the family settlement is favorable to the infants. I do not find it so. There is a definite possibility that their trust estates will be decreased thereby and the rights of possible contingent remaindermen will be cut off entirely.
From the findings of fact in the court below and the inventory appearing in the record, the assets of the estate are: real estate, $53,-400.00, subject to the lien of a deed of trust of unspecified amount; stocks, $114, 971.01; bonds, $4,800.00; promissory note, $15,145.33; automobile, $405.00; household goods, $1769.00.
The settlement provides that the executor shall pay all debts of testatrix’s estate, the amount secured by the deed of trust, inheritance and estate taxes, costs of administration, costs of this action, attorneys fees and allowances for guardians ad litem, from the remaining intangible property and any income from personalty which has accrued since testatrix’s death. This means that the encumbrance against the land will be borne by the personal estate, and the land, the automobile, household goods, and cash of $1,562.46 (all belonging to Mrs. Bryant) will bear no part of the debts, taxes, expenses of administration, court costs and attorneys fees. In the absence of accurate information, it seems that the family settlement, by this provision, will invade the stocks from which the trust for the infants will be set up.
It is contended that, at the death of Mrs. Bryant, the assets remaining in the trust created for her will accrue to the infants, and their estates will thereby be enhanced. This is a possibility, but it is unlikely that there will be anything left in that trust for the trustee is given absolute discretion by the family agreement to turn over to her any part or all of the corpus of this trust to meet any emergency affecting her health or welfare. And the word, “welfare,” is undefined in the settlement agreement.
The settlement also gives the trustee the absolute discretion to pay over to Mrs. Bryant all or any portion of the income from the trust set up for the infants, if it determines at any time she is in absolute need thereof for her welfare, support or maintenance. This provision, in my opinion, is far in excess of the provision made in the will.
Furthermore, the trustee is authorized to expend sums for the support and education of the children without regard to equality. This is directly contrary to the will.
The courts should not abdicate their authority and shirk their responsibilities to supervise and preserve the estates of the infants by giving absolute and sole discretion to a trustee.
Moreover, the settlement arbitrarily postpones the enjoyment of a portion of the trust property as to the two infants in esse, and accelerates their enjoyment as to the rest. As to unborn children, it either *52accelerates their interests or cuts them off altogether. It is possible that it will amount to a confiscation of the interests of contingent remaindermen.
In altering a trust, the court exercises its equity jurisdiction when, and only when, it is necessary to preserve the trust and effectuate its primary purpose. Keesler v. Bank, 256 N.C. 12, 20, 122 S.E. 2d 807. No such necessity exists here.