Mathers v. Byrd

177 S.E.2d 358, 255 S.C. 106, 1970 S.C. LEXIS 167
CourtSupreme Court of South Carolina
DecidedOctober 29, 1970
Docket19115
StatusPublished
Cited by1 cases

This text of 177 S.E.2d 358 (Mathers v. Byrd) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mathers v. Byrd, 177 S.E.2d 358, 255 S.C. 106, 1970 S.C. LEXIS 167 (S.C. 1970).

Opinion

Littlejohn, Justice:

The Honorable G. Badger Baker, as Judge of the Court of Common Pleas, issued his order authorizing Guaranty Bank & Trust Company, as substitute trustee of the Estate of R. P. Byrd, Sr., to deviate from the terms of the trust established by his will in 1928, and to sell by fee simple deed 124.485 acres of land to the Florence County Industrial Loan & Development Commission as agent for an undisclosed principal. The unborn contingent remaindermen, by their Guardian ad Litem, appeal.

R. P. Byrd, Sr. executed his will in 1928 and died within the year owning several hundred acres of farm land in Florence County. By the terms of his will he created a trust estate. The relevant terms of the trust and duties of the trustee were as follows:

“Item 3 : I hereby direct the said trustees to hold the said estate hereinabove stipulated for the sole benefit of the beneficiaries to lease or rent the arable lands contained in the said premises and after the payment of the usual taxes the pro[109]*109ceeds derived therefrom be paid annually to the said beneficiaries ; provided, however, that should the said beneficiaries or either of them, desire to use and occupy the premises, so provided for them, individually, they shall have the right to cultivate the whole or any part of the same at their option, and to use the proceeds derived therefrom for their individual uses; in the meantime, I request the said trustees to keep an eye to the interest of the said beneficiaries and to advise and admonish them in such way as would be for their individual benefit and benefit of the said premises, which I urge shall be kept in a good state of cultivation. It is distinctly understood, that the trust herein provided shall be a permanent one, that is to say: to hold under said trust the said premises for and during the term of the natural life of the said beneficiaries, George S. Byrd and R. P. Byrd, Jr., and should either of my sons predecease the other, then, and in such event, the title to the property provided for my said son, George S. Byrd, under the trust (should he without wife or issue, predecease my son, R. P. Byrd, Jr.) shall vest in my said son, R. P. Byrd, Jr., and should my said son R. P. Byrd, Jr., without wife or issue predecease my son, George S. Byrd, then the provision of the trust provided for R. P. Byrd, Jr., shall vest in the said George S. Byrd.”
“Should the said beneficiaries of either of them die leaving a wife and a child or children then the title to the property hereinabove provided for them shall vest in fee simple in his or their heirs, provided, however, that should the wife of either, or both of said beneficiaries die leaving no issue, child or children on my said son or sons, then the wife or wives of either of the said beneficiaries to be vested with only a life estate in the property hereinabove provided for my said sons, respectively, with remainder over, after their death to the Official Board of Epworth Orphanage, an institution of the Methodist Church, located at Columbia, S. C., to have and to hold the same in fee simple for the benefit of the said institution.”

[110]*110Facts of interest, but not necessary to a determination of the issues before us, are recited in the opinion of this court in Byrdv. King, 245 S. C. 247, 140 S. E. (2d) 158 (1965). From a reading of this case it would appear obvious that the property involved in this action has not been very productive.

The land now becomes highly desirable and valuable as commercial and industrial property because newly-constructed interstate highways 1-20 and 1-95 intersect on the premises. As a result the trustee secured permission of the court on April 30, 1970 to employ an expert to prepare an overall land use development plan. Interested parties participated in that proceeding and there was no appeal from the judge’s order directing the study. The experts employed (Lyles, Bisset, Carlisle and Wolff) recommended use of the land for industrial purposes because of the dramatic change in potential use since 1928 when the trust was created.

On August 17, 1970 the Florence County Industrial Loan & Development Commission offered to enter into an option to purchase 124.485 acres for the sum of $473,960. Thereafter, the trustees instituted this action to ask the approval of the court to deviate from the terms of the trust, alleging the existence of a reasonable necessity as a matter of fact for authorizing the sale, and alleging that the beneficiaries of the trust and the trust itself would suffer unless the sale is authorized.

The case was referred to the Master in Equity for Florence County, who recommended that the trustee be directed by the court to sign the option agreement and upon compliance, execute a fee simple deed to the purchaser.

Exceptions were taken to the master’s report and the circuit judge dismissed the exceptions and ordered the relief recommended by the master. We therefore have in an equity case findings of fact by the master, concurred in by the circuit judge, and such will not be disturbed by this court unless found to be without evidentiary support [111]*111or against the clear preponderance of the evidence. Todd v. Todd, 242 S. C. 263, 130 S. E. (2d) 552.

The Guardian ad Litem in this appeal presents two questions for the determination of this court:

1. Did the Court err and abuse its discretion in finding as a matter of fact that there exists a reasonable necessity for the sale of a portion of the Byrd Trust Land?

2. Did the Court err in finding as a matter of law that it has the power to authorize the Trustee to deviate from the terms of the testamentary trust set forth in the Will of R. P. Byrd, Sr. dated January 13, 1928?

It is the contention of the appellants that the facts present merely an attractive business offer, and no showing is made warranting a deviation from the terms of the trust. A review of the facts, abundantly established by the evidence, will reveal that this property as farm land has had, in recent years, a very low monetary yield. See Byrd v. King, supra. The master found “* * * the agricultural use of the land held by the trustee brings in annually a net income of about Three Thousand ($3,000.00) Dollars.” As pointed out by the master, interest at 6% on the proceeds of the sale after payment of capital gain tax should be in the neighborhood of $20,000 per year. The fact that this property can now be sold for commercial purposes and used for industrial development brings about somewhat of a bonanza or a windfall. No landowner with complete control of this property, and in his right mind, would continue to use this land for agricultural purposes.

It should be noted that the will of R. P. Byrd, Sr. did not authorize the trustee to convey his real estate. At the same time sale was not specifically prohibited. Under such facts a sale will not be authorized merely because it would benefit the trust. The court will approve a power of sale only where the circumstances are such that the real purposes of the trust would be defeated or seriously impaired [112]*112unless the trustee be permitted to sell the property and convert the same to cash.

In Wingard v. Hennessee, 206 S. C. 159, 33 S. E. (2d) 390 (1942) this court held that a court of equity could provide for sale of land “in the case of reasonable necessity.” An absolute necessity need not be shown.

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Related

Ex Parte Guaranty Bank & Trust Co.
177 S.E.2d 358 (Supreme Court of South Carolina, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
177 S.E.2d 358, 255 S.C. 106, 1970 S.C. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathers-v-byrd-sc-1970.