Godfrey v. Patrick , 8 N.C. App. 510 ( 1970 )

Gbaham, J.

No exception was taken to any of the court’s findings or conclusions and defendant states in his brief that he agrees as to the division of the proceeds. His sole contention is that the court erred in refusing to order plaintiff to account to the court at least annually for that portion of the timber proceeds to be administered by her in the nature of a trustee.

Executors, administrators and collectors must file annual accounts with the court. G.S. 28-117. Trustees under a will are likewise required to file annual accounts pursuant to G.S. 28-53. However, we know of no requirement that a life tenant must account to the court or to a remainderman.

Defendant’s position is that even though plaintiff had no obligation to account under the will, she now occupies the position of a court appointed fiduciary and must therefore be ordered to account to the court. Conceding that the court has the inherent power to require any appointed fiduciary to file periodic accounts, in our opinion it does not follow that the court is compelled as a matter of law to do so. “It lies within the discretion of the court, if there is no relevant statute, to order an account of the trustee or his successor in interest, at the suit of any interested party, . . .” (Emphasis added). Bogert, Trust and Trustees (2d Ed.), § 963. “It is generally recognized that in a proper case an accounting by the life tenant may be required where it is necessary to protect the estate in remainder.” (Emphasis added). 31 C.J.S., Estates, § 62, p. 124. “All fiduciaries may be compelled by appropriate proceedings to account for their handling of properties committed to their care.” (Emphasis added). Lichtenfels v. Bank, 260 N.C. 146, 148, 132 S.E. 2d 360.

Defendant argues strenuously that unless plaintiff is required to account, he will have no way of knowing whether the corpus is being dissipated. A contingent remainderman cannot maintain an action at law against the tenant in possession to recover damages for waste, because it cannot be known in advance of the happening of the contingency whether the contingent remainderman will in fact suffer damage or waste. Strickland v. Jackson, 261 N.C. 360, 134 S.E. 2d 661; Edens v. Foulks, 2 N.C. App. 325, 163 S.E. 2d 51. The sole remedy of a remainderman is to seek an injunction to prevent a person in possession from committing future waste. 56 Am. Jur., Waste, § 13, p. 459; Richardson v. Richardson, 152 N.C. 705, 68 S.E. 217; Latham v. Lumber Co., 139 N.C. 9, 51 S.E. 780; Gordon v. Lowther, 75 N.C. 193, Edens v. Foulks, supra. This remedy, which is the only remedy defendant had in the first place, is. expressly reserved in the court’s order. In our opinion it has not been shown that the court abused its discretion in refusing to go further and require that plaintiff file annual accounts. It is true that since proceeds from the sale of the timber, rather than the standing timber, now constitutes the corpus, an unlawful disposition thereof will be more difficult to detect. This argument, however, is more properly directed to the discretion of the trial court.

Affirmed.

Mallard, C.J., and MoRRis, J., concur.