Board of Trustees of the University of North Carolina at Chapel Hill v. Unknown & Unascertained Heirs of Prince ( 1983 )

HEDRICK, Judge.

Defendants contend that the court erred in reforming, pursuant to N.C. Gen. Stat. Sec. 36A-53, the Lillian Hughes Prince Charitable Trust. N.C. Gen. Stat. Sec. 36A-53(a), the Charitable Trusts Administration Act, provides in pertinent part that:

[i]f a trust for charity is or becomes illegal, or impossible or impracticable of fulfillment . . . and if the settlor, or testator, manifested a general intention to devote the property to charity, any judge of the superior court may . . . order an administration of the trust, devise or bequest as nearly as possible to fulfill the manifested general charitable intention of the settlor or testator.

It is not disputed that the trust created by Mrs. Prince is a charitable trust as it is created for a lawful purpose which promotes the well being of mankind and does not contravene public policy. Rather, defendants contend in Assignment of Error Nos. 1 and 2 that the court erred in finding that the charitable bequest was impractical and impossible of fulfillment, and in finding that Mrs. Prince manifested a general charitable intent in said bequest.

In support of their contention that the court erred in finding Mrs. Prince manifested a general charitable intent in her bequest, defendants cite Wilson v. Church, 284 N.C. 284, 200 S.E. 2d 769 (1973), the only case in which the Supreme Court has addressed the issue of whether a testator has manifested general charitable intent. In Wilson, the Court said the Superior Court has authority to modify a charitable trust that has become impracticable to fulfill only when “the instrument creating the trust, interpreted in the light of all the circumstances known to the settlor or testator, manifests a general intention to devote the property to charity.” Id. at 300, 200 S.E. 2d at 779 (citations omitted). Thus, in the present case, we must determine if Mrs. Prince manifested such intent in her will construed as a whole. The Court in Wilson held that where the testatrix bequeathed property to the First Presbyterian Church of Reidsville to be used to build a new Presbyterian church at a specified location as a memorial to her deceased brother and where the purpose of that trust failed, the trust may not be modified pursuant to the cy pres doctrine since the testatrix had only a specific and limited charitable intent. There, the testatrix had the twofold purpose of establishing a memorial to her brother at the specified location and promoting religious activities in this part of her native city. Id. at 296, 200 S.E. 2d at 776.

We find the case cited by defendant distinguishable from the present one. Unlike the testator in Wilson, Mrs. Prince did not manifest a narrow and particular charitable intent in her will. She did not indicate that only a particular purpose was intended by her, or that she would have preferred to have the whole trust fail if the purpose was impossible of accomplishment.

The evidence tends to show that Mrs. Prince was closely involved with the Carolina Playmakers, which is a University organization whose purpose is the production and performance of dramatic art. Both Mrs. Prince and her husband actively participated in the productions of this organization. Mrs. Prince had leading roles in at least five of these productions. Throughout its history and extending beyond the time of Mrs. Prince’s death, the Carolina Playmakers suffered from a lack of adequate theatre facilities.

In reviewing the will of Mrs. Prince, we see she made several bequests to charity. Mrs. Prince bequeathed to the Friends of the Library of the University her property rights arising from a book written by her husband. She left to the University’s Art Department all of her husband’s illustrations, correspondence, art books, proofs, sketches and other memorabilia. She established at the Boston Museum School of Art a perpetual fund to provide graduate scholarships to students enrolled in the Art Department at the University of North Carolina. Mrs. Prince also made specific bequests to her mother, her sister, and certain friends, all of which were conditioned on such persons surviving her. The residuary estate was bequeathed to the University as provided in Article IX, and there is no provision for reversion or gift over if the trust fails. This evidence is sufficient to support the court’s finding that Mrs. Prince manifested a general charitable intent in her will.

Defendants also challenge the court’s finding that changed circumstances rendered the Prince Trust impracticable or impossible of fulfillment. The express purpose of the Trust was the construction of “a building for the Carolina Playmakers.” The evidence shows that the initial amount in the trust was $135,000, and that by 1973 the amount had grown to approximately $210,000. Part of this sum was used to pay for plans for a new theatre building. In 1971 the General Assembly allotted $2,250,000 to the University of North Carolina for the purpose of erecting a new building for the University’s Department of Dramatic Art. This allocation was eventually used to construct the new theatre, and was sufficient without the addition of the Prince Trust. The new building is used by the Carolina Play-makers as well as by related organizations. The court found that the need for the building contemplated by the Prince Trust has been eliminated by these events, and that this constitutes changed circumstances rendering the Trust impracticable or impossible of fulfillment. The court’s finding is supported by the evidence. We uphold its judgment in full.

Affirmed.

Judge Wells concurs. Judge Phillips dissents.