Law of Wills, 2016A

presently constituted does not effect the purpose of Petitioner as far as being a charitable
contribution in that there will be no recognizable gift to the Lottie Moon Christmas Offering of the
Southern Baptist Convention upon the death of the last of the non-charitable contingent
beneficiaries.”
Service was had upon all of the numerous intermediate beneficiaries and the Attorney General of
South Carolina. Only the Attorney General and the appellant, through his duly appointed Guardian
Ad Litem, responded to the respondent’s petition.
Based primarily on the testimony of the respondent as to his intentions, the lower court found his
clear intent at the time of the creation of the trust was to create a charitable gift to the Lottie Moon
Christmas Offering. The respondent’s accountant testified that no corpus would remain for the
benefit of the charity if the prior distributions to the settlor and intermediate beneficiaries should be
made in accord with the trust provisions. Based on this showing, the lower court held that the
settlor’s intent could be achieved only by extinguishing the interests of the intermediate
beneficiaries.
As the case stands before us on appeal, the only question presented and the only one we consider is
whether it was error to extinguish the interest of Walter H. Chiles, III.
The respondent points out that a court of equity may modify a trust upon the occurrence of
emergencies or unusual circumstances in order to carry out the settlor’s intent. He contends that, in
the present case, his intent can be effectuated only by excluding the intermediate beneficial interests
and, thus, the lower court acted properly in extinguishing the interest of the appellant.
It is true that a court of equity has the power to alter or modify a trust to effectuate the intent of the
settlor 89 C.J.S. Trusts 87(b) (1955). However, it is the duty of the courts to preserve, not destroy,
trusts and to see to it that the rights of infants are not injuriously affected. Bettis v. Harrison, 186
S.C. 352, 195 S.E. 835 (1938); Dumas v. Carroll, 112 S.C. 284, 99 S.E. 801 (1919). Accordingly, the
exercise of this power “can be justified only by some exigency or emergency which makes the action
of the court in a sense indispensable to the preservation of the trust . . . .” 89 C.J.S., supra.
In order to determine whether the requested modification is justified in the present case, it is, first,
necessary that we ascertain the intent of the settlor; otherwise, we could not give it effect.
The respondent has testified extensively in the court below as to his intent in creating this trust.
However, the respondent has overlooked the cardinal rule of ascertaining intent. “(R)esort is first to
be had to its (the instrument’s) language, and if such is perfectly plain and capable of legal
construction, such language determines the force and effect of the instrument. Extrinsic facts
cannot, in such cases, give the instrument a different construction from that imported by its terms.”
Superior Auto Ins. Co. v. Maners, 261 S.C. 257, 263, 199 S.E.2d 719, 722 (1973); Restatement (Second)
of Trusts s 38 (1959) (see especially com. a); 89 C.J.S., supra. “(T)he possibility that the trustor may
be alive should have no effect upon the interpretation to be given the trust instrument. Its
construction depends upon the trustor’s intent at the time of execution as shown by the face of the
document and not on any secret wishes, desires or thoughts after the event.” Brock v. Hall, 33 Cal.2d
885, 206 P.2d 360, 11 A.L.R. 2d 672, 675 (1949).
The logic of these principles of construction is evidenced by the present case. The trust instrument
723