dissenting.
I disagree with the broad interpretation placed upon OCGA § 53-12-98 by the majority. A careful reading of the “Georgia Charitable Trust Act,” OCGA § 53-12-90 et seq., shows that the General Assembly intended to give the state revenue commissioner administrative duties only with regard to existing, funded, probated charitable trusts. Thus OCGA § 53-12-98 which provides that “no court shall have jurisdiction to modify or terminate any trust of property for charitable purposes unless the state revenue commissioner is a party to the proceedings [,]” refers only to probated and funded charitable trusts. It has no relevance to unprobated and unfunded declarations of trust in a will.
Looking to the statute we find the following. The commissioner is authorized to “establish and maintain a register of trustees. . .and the particular trusts under which they hold property for charitable purposes.” OCGA § 53-12-92. It would be both impossible and ridiculous for the commissioner to establish and maintain a register of trustees of unprobated trusts, unless every settlor or his attorney is required to notify the commissioner each time they attempt to create a charitable trust or they change the trustee. Obviously that section along with all the other sections of the “Charitable Trust Act” apply only to on-going trusts.
The act grants the revenue commissioner the authority to investigate certain transactions and relationships of trustees “for purposes of determining whether the property held for charitable purposes is properly administered.” OCGA § 53-12-95. He is also given the power to institute appropriate proceeding to “correct improper administration of a charitable trust. . .” OCGA § 53-12-97. A declaration of a charitable trust under a will cannot be administered properly or improperly until the will is probated and funded.
No trust in real estate can be created by any declaration of trust in a will unless the will is executed in such form as that it can be allowed in a court of probate. It must be in such form as that it will pass the estate. The universal rule is that no will can be used to prove a transfer or any interest, legal or equitable, unless it has been duly proved and admitted to record in the court having jurisdiction over its probate. [Cit.]
Woo v. Markwalter, 210 Ga. 156, 161 (78 SE2d 473) (1953).
The purpose of OCGA § 53-12-98 is to ensure that the state revenue commissioner is made a party to a proceeding in which an ongoing charitable trust is about to be modified or terminated so that he can assess the tax consequences. Nothing in OCGA § 53-12-98 creates any authority in the revenue commissioner to represent the benefi*672ciaries of charitable trusts, much less potential beneficiaries of an unfunded and unprobated declaration of trust.
The primary duty of the revenue commissioner is to administer and enforce revenue laws. See OCGA § 48-2-1. It makes sense to grant the revenue commissioner authority to oversee the administration of on-going charitable trusts so that he can ensure that the charitable trusts are being used for charitable purposes and not being used as a method of tax evasion. However it does not make sense to read into the statute any authority in the revenue commissioner to interfere with the rights of the parties under a will to modify the terms of the will in settlement of a will contest.
The family involved in this case spent approximately one year negotiating the settlement agreement. One particularly disturbing fact is that the terms of the will provided that the trust would not begin until the death of Mrs. Ruth Hubert. This has placed a great deal of pressure on Mrs. Hubert. She feels that her life is an impediment to the trust. As one of her children stated, “her profound notion has been all along that she felt that her very existence - her day-today living would impede and withhold a charitable purpose being carried out.” The settlement agreement would allow the charitable trust to begin as soon as the agreement is probated. Settlement agreements are favored in the law and “agreements are supported by the public policy of furthering family harmony and avoiding lengthy litigation.” Beckworth v. Beckworth, 255 Ga. 241, 243 (336 SE2d 782) (1985).
The result the majority reaches grants full discovery to the revenue commissioner of every charitable trust declared in Georgia. Even though the trusts are unfunded and unprobated the revenue commissioner now has a right to block potential settlements. This holding will only cause estates to be depleted by unnecessary litigation.
The majority’s interpretation of OCGA § 53-12-98 is incorrect for another reason. The majority’s interpretation of the statute will cause Georgia to become the only state which allows the state revenue commissioner to determine what is best for the state coffers and at the same time what is best for the beneficiaries of charitable trusts. The general assembly would never have intended for a state officer to be placed in a position of conflict. The revenue commissioner has a duty to collect revenue. That duty is in conflict with a duty to represent the beneficiaries under a charitable trust. The 24th verse of the 6th Chapter of Matthew expresses it best: “No man can serve two masters
Allowing the revenue commissioner unlimited discovery will only postpone the final settlement of the estate for an indeterminate length of time. Everyone knows that government bureaucracy is like a pit bull, once it takes a hold, it never turns anything loose.
*673Decided November 10, 1988 Reconsideration denied November 10, 1988. Michael J. Bowers, Attorney General, Verley J. Spivey, Senior Assistant Attorney General, Grace E. Evans, Assistant Attorney General, for appellant. William J. Linkous, Jr., Roy E. Barnes, J. Don Jones, Richard N. Hubert, for appellees.