We are constrained to hold that the judgment entered by the Superior Court is in error, for the reason that the provisions made for the future wife or wives of Francis Stringer Duffy, Jr., as well as the provisions made for the unborn child or children of the said Francis Stringer Duffy, Jr., by the deed of trust and the will of the late Francis Stringer Duffy, are more liberal than the provisions made for the said wife or wives or for the said child or children in the trust agreement alleged to have been entered into by the interested parties in being and in said judgment.
The deed of trust, made a part of the will of the late Francis Stringer Duffy, sought to be annulled, in so far as it makes provisions for any *527wife or widow of Francis Stringer Duffy, Jr., is practically to tbe effect that $50.00 per month from income of the property in the trust created thereby is to be paid to any wife he may have; and in the event any wife of the said Francis Stringer Duffy, Jr., shall survive him, and there be no surviving children, she shall receive the total benefits of the trust that he would have received had he lived (at least $100.00 per month) ; and if she survives him and there be likewise surviving children then she is to receive one-half of the benefits and such surviving children are to receive one-half thereof; whereas the alleged agreement and the judgment in so far as they relate to provisions for any wife or widow of Francis Stringer Duffy, Jr., are practically to the effect that the whole of the income from the property in the trust created is to be paid to Francis Stringer Duffy, Jr., during his life to the exclusion of any wife; and if the said Francis Stringer Duffy, Jr., should die, leaving a widow and no issue, such widow would receive only one-half of the income from said property during her life, instead of the whole thereof. The provisions of the judgment for any wife or widow of Francis Stringer Duffy, Jr., are definitely less liberal than such provisions in the deed of trust, and cannot be construed to be for the best interest of such wife or widow.
Likewise the deed of trust sought to be annulled in so far as it makes provisions for any unborn child or children of Francis Stringer Duffy, Jr., is practically to the effect that $15.00 per month is to be paid to' each child that may be born, from the income of the property in the trust created, and in addition thereto a sufficient amount is to be set aside from said income to educate such child; and in the event of the death of Francis Stringer Duffy, Jr., leaving a widow and children, such children are to receive one-half of the income; and in the event of the death of Francis Stringer Duffy, Jr., without leaving a widow but leaving children, the trust is to be dissolved and such children are to receive all the property therein; whereas the only provision made in the judgment for such unborn children is that upon the death of Francis Stringer Duffy, Jr., without leaving a widow, the property in the trust is to go to the nearest of kin, who would, of course, be his children, if any surviving. The provisions of the judgment for any unborn child or children of Francis Stringer Duffy, Jr., are different and in some respects less liberal than such provisions in the deed of trust, and cannot, upon the whole, be construed for the best interest of such child or children.
The mere fact that the present wife of Francis Stringer Duffy, Jr., Shirley Avery Duffy, is a party plaintiff to this action and has acquiesced in the settlement agreement alleged in the complaint and in the judgment entered below, cannot effect the rights of any future wife or widow of the said Francis Stringer Duffy, Jr., represented along with *528others by the guardian ad litem, in the property in the trust created by the deed of trust sought to be annulled.
The family settlement doctrine is not applicable in this action, since the trust which is sought to be annulled is an active one wherein special duties are imposed upon the trustee, including the disbursements of the income from the trust estate for an indefinite time, to indefinite recipients and upon indefinite contingencies. Deal v. Trust Co., 218 N. C., 488, 11 S. E. (2d), 464, and cases there cited.
To uphold the judgment of the Superior Court annulling the deed of trust as incorporated in the will of the late Francis Stringer Duffy would be to deny to the grantors therein the right to freely dispose of their property according to their wishes. While ordinarily a court of equity has the power to do what is necessary to be done to preserve a trust from destruction, and in the exercise of that power may, under certain unusual circumstances, modify the terms of the trust to that end, such court has not the power to defeat and destroy the trust. Cutter v. Trust Co., 213 N. C., 686, 197 S. E., 542. This power to modify the terms of the trust when necessary to preserve it should not be exercised to destroy the trust or defeat the purpose of the donor or grantor thereof. Penick v. Bank, 218 N. C., 686, 12 S. E. (2d), 253.
The judgment of the Superior Court is
Reversed.