Carl F. BLADES and Ralph W. Blades, Trustees under Last Will of Levin Carl Blades, Deceased, and Margaret Blades Bateman,
v.
Frank Blades SPITZER and wife, Retta Hooper Spitzer; Gilbert Levin Spitzer and wife, Barbara O'Neal Spitzer; Evangeline Bateman, infant; Sharon Bateman, infant; Stephen Carl Spitzer, infant; Gilbert Levin Spitzer, Jr., infant; Linda Carol Spitzer, infant, and any unborn children of Margaret Blades Bateman, Frank Blades Spitzer, Gilbert Levin Spitzer, Evangeline Bateman or Sharon Bateman.
No. 172.
Supreme Court of North Carolina.
March 23, 1960.*318 Pritchett & Cooke, Windsor, for guardian ad litem, appellant.
*319 LeRoy, Goodwin & Wells, Elizabeth City, for appellees.
MOORE, Justice.
"In all cases where there is a vested interest in real estate, and a contingent remainder over to persons who are not in being, or when the contingency has not yet happened which will determine who the remaindermen are," the land may be sold for reinvestment in real estate to be held upon the same contingencies and, pending such reinvestment in land, the proceeds may be loaned or invested in approved securities. G.S. § 41-11. Under the provisions of this statute the action for sale authorization is a special proceeding and must be instituted by one having a vested interest. Barnes v. Dortch, 245 N.C. 369, 372, 95 S.E.2d 872.
Margaret Blades Bateman has a vested equitable estate for life in the locus in quo and is entitled to institute this proceeding. The trustees as holders of the legal title for the life of the trust beneficiary are proper parties plaintiff. Under the pertinent provisions of the will of Levin Carl Blades the remaindermen must be ascertained upon the falling in of the life estate, and the remaindermen as then ascertained take from the testator and not as heirs at law of the life tenant. Barnes v. Dortch, supra; Latham v. Roanoke R. & Lumber Co., 139 N.C. 9, 51 S.E. 780. The situation here presented makes the provisions of G.S. § 41-11 applicable.
In order that a valid conveyance of the land in fee simple be made pursuant to this proceeding it is essential that the provisions of the statute be strictly complied with.
Appellant excepts to the judgment but not to the findings of fact. The exception presents the one question whether the facts found are sufficient to support the judgment. James v. Pretlow, 242 N.C. 102, 104, 86 S.E.2d 759. The court may not order a sale of the land unless "the interest of all parties require or would be materially enhanced by it." The findings of the court are not expressed in these exact terms but the meaning and effect include these requisites. There is a finding that the price offered is "fair and adequate" and that a sale under the terms of the offer "would be to the best interest of the trust estate" and the life tenant and contingent remaindermen. The specific findings with reference to the land, the trust limitations in dealing with the timber, the risk of loss, lack of income and recurring expenses, are sufficient to show that a sale at an adequate price, if not actually required to protect the interest of all parties, would materially enhance it. We conclude that the findings are sufficient to support the judgment.
That the judgment in this proceeding would seem to vary the terms of the trust with respect to the locus in quo does not render the judgment invalid. It is the duty of the court, in the exercise of its equity jurisdiction, to protect the trust corpus and advance the interest of the beneficiaries; the court will not hesitate to exercise its equity powers where the limitations of the trust work injury to the trust estate. Bank of Wadesboro v. Hendley, 229 N.C. 432, 50 S.E.2d 302; First-Citizens Bank & Trust Co. v. Rasberry, 226 N.C. 586, 39 S.E.2d 601.
The answer of the guardian ad litem may seem to raise issues of fact by denying that the price offered is fair and reasonable and further denying that the sale would be for the best interest of all parties. Ordinarily if issues of fact are raised before the Clerk he must transfer the case to the civil issue docket for trial of the issues at the next ensuing term of the Superior Court. G.S. § 1-273. But in this instance the statute (G.S. § 41-11) requires the Clerk, whether such issues are raised or not, to make inquiry and determine these very matters before ordering a sale. This the Clerk did. Even so, *320 the guardian ad litem appealed and the matter was heard de novo by the resident Judge, with the same result. "Whenever a civil action or special proceeding begun before the clerk of a superior court is for any ground whatever sent to the superior court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy * * *" G.S. § 1-276. The plaintiffs and guardian ad litem waived jury trial and agreed that the Judge might hear and determine the matter at chambers. A guardian ad litem and his attorney may waive jury trial. White v. Morris, 107 N.C. 92, 101, 12 S.E. 80. The Judge heard the cause, found facts and entered judgment. He also approved and affirmed the judgment of the Clerk.
Appellant insists that the court should have required the trustees to give bond assuring the safety of the funds arising from the sale. In this the appellant is correct. G.S. § 1-407. Poole & Blue v. Thompson, 183 N.C. 588, 600, 112 S.E. 323. But, of course, the court may receive and administer the fund. G.S. § 1-407.2. The judgment should be amended to comply with the indicated statutes. It is true that the will provides that the trustees shall not be required to give bond in administering the trust. But in so far as they may be required to act under the judgment in this cause, they are commissioners of the court and not necessarily trustees under the will.
We have carefully examined each step in the proceeding and, except for the matter referred to in the preceding paragraph, we find that there has been substantial compliance with all the provisions of G.S. § 41-11 and other applicable legal requirements. We find no error in the judgment of sale and the proceedings preliminary thereto.
This cause is remanded to Superior Court that it may in turn be recommitted to the Clerk of Superior Court for amendment requiring that commissioners give bond in accordance with G.S. § 1-407 or that other legal provision be made for protection of the fund. Thereupon the Clerk shall retain the cause for consummation of the sale and the lending and reinvestment of the proceeds as the law provides.
Modified, affirmed and remanded.