Keith v. . Scales , 124 N.C. 497 ( 1899 )

This proceeding is brought by the administrator, with the will annexed, of E. T. Clemmons, against his heirs at law, next of kin, and devisees, to have the will proved in solemn form, and for a construction of the same. He died childless. After a devise to his widow, which is eliminated from our consideration by reason of her having dissented, and three small bequests to relatives, which are not contested, the testator devised and bequeathed his estate, estimated at $100,000, as follows:

(507) "After the above, then I will and bequeath all the rest of my estate, including my wife's, at her death, for a Moravian church and school in my native town, Clemmonsville, Forsyth County, N.C. I desire the Moravian Church, of Salem, appoint proper persons to purchase 100 acres of land in or near Clemmonsville; to first erect a substantial church, of brick, not to exceed in cost $10,000; a school building, not to exceed in cost $10,000, and a comfortable house for the entire use of a Moravian minister and teacher. I desire each member of said church have a lot of 1 acre of this land purchased at $1 each, as far as the land goes, and his children to be sent to school, free of charge, as long as any part of my estate remains to pay the expenses of said church first, then school; to be managed and controlled by the church of Salem, N.C. It is my intention that all my estate, except as before stated, be used and managed by the Moravian Church, of Salem, to maintain a church and school at or near Clemmonsville, N.C. and when, if ever, abolished, then to go to my nearest living relatives."

The case having been transferred, upon issues raised by the pleadings, to the Superior Court, the judge, upon facts agreed, found as a fact that "The Board of Provincial Elders of the Southern Province of the Moravian Church, or Unitas Fratrum," officially located at Salem, N.C. and a corporation under the laws of North Carolina, was the trustee intended in his will by the designation "Moravian Church, of Salem," and adjudged that the bequest and devise of the residue of the estate, as above set forth, was valid, and directed that the net proceeds of the personalty after payment of the widow's distributive share, the three small bequests and the costs of administration, be paid over to said trustee, and that said trustee is the owner and entitled to the possession of all the real estate of which the testator died seized, subject to the dower rights of the widow. From this judgment the defendants (508) appealed, assigning the following grounds of exception, which will be noted seriatim.

The first two exceptions are to the findings of fact, that the "Board of Provincial Elders of the Southern Province of the Moravian Church" was the trustee named. This was shown to be the official designation of the religious denomination commonly known as the Moravian Church, with its headquarters at Salem, which is incorporated in North Carolina and owns large bodies of land, having received inter alia at one time a grant of 1,000,000 of acres of land from Earl Granville, holding and investing the funds of the province and the legal title to the churches and chapels and schools within its jurisdiction, including the well-known and long-established female college at Salem. It was also in the facts admitted that the Moravian Church congregation at Salem, owing allegiance to the province above referred to, of which it is a member, was also incorporated and owned considerable property, including four affiliated chapels, and is also commonly known as the Moravian Church, of Salem, but it exercises no control over any property or church beyond its immediate vicinity, and is subject to the authority, of the province of which it is a member, and from which its ministers receive their appointment. (This last corporation and its charter have been before this Court in United Brethren v. Comrs., 115 N.C. 489.) At the most, this was a latent ambiguity and explainable by parol evidence. Simmonsv. Allison, 118 N.C. 763, 776; Asheville v. Aston, 92 N.C. 578;Ryan v. Martin, 91 N.C. 464; Tilley v. Ellis, 119 N.C. 233. The finding of fact by the judge to whom, by consent, it was submitted, is binding upon the defendants. In Tilley v. Ellis, supra, a latent ambiguity was sent back to be passed upon by the jury, but as, in that case, the ambiguity was as to the cestui que trust, the Court added that if it could not be determined who was meant, the (509) devise would lapse for the benefit of the heirs. Trustees v. Colgrove, 4 Hun, 368, and cases there cited. But here, the ambiguity being as to the trustee, the Court would not allow a trust to fail for want of a trustee. Besides, it is not ground for exception to the defendants, who cannot be concerned who is trustee.

But when the case gets back into the Superior Court it may be well for the administrator, for his own protection, to cause the Moravian congregation at Salem, which is officially incorporated as the "Congregation of the United Brethren of Salem," to be made a party defendant (it is not a party to this action), that it may be bound by the final order holding the Provincial Elders of the Moravian Church to be the trustee designated, or give opportunity to contest the same if that congregation should so desire. It is a matter between the two congregations, commonly known as the "Moravian Church of Salem," as to which was intended to be the trustee. This will not affect the validity of the devise or the rights of the defendants. An uncertainty as to the cestuique trust is fatal to a devise in trust, unless it is a latent ambiguity which can be ascertained. Tilley v. Ellis, supra; Institution v. Norwood, 45 N.C. 65. It is otherwise where the uncertainty is as to the trustee, in which case the court will protect the trust and, if need be, appoint a new trustee. 2 Perry Trusts, secs. 730, 731.

The next two exceptions are, that the court erred in not holding that the trustee, the Moravian Church, could not hold real estate, and, besides, has no corporate existence. It appears from the facts agreed that both the organizations referred to above, and both of which are commonly known as the "Moravian Church of Salem" (one being the Province, with headquarters at Salem, and the other the Congregation of that church in that town), were incorporated, and both have power to take and hold property, (510) real and personal. But if there had been no "incorporation, the court would hold the fund until "incorporation could be taken out" (Allen v.Baskerville, 123 N.C. 126; Ould v. Washington, 95 U.S. 303), and if that were not done in a reasonable time, appoint a substituted trustee.

The other exceptions are to alleged error in not holding the devise for church and school at Clemmonsville void:

1. "That the same is attempted to be given to a church and school not in existence." In Griffin v. Graham, 8 N.C. 96, the will provided that 2 acres of land should be purchased, and "that a brick house shall be erected on said land, suitable for a schoolroom, and furnished in a plain manner, for the accommodation of indigent scholars, and be called Griffin Free School." The school had no previous existence, but was to be established by the trustees. The Court upheld the trust, and the institution is still the pride of New Bern. To the same effect, White v.University, 39 N.C. 19; Vidal v. Philadelphia, 2 Howard (U.S.,), 127 (the famous Girard will case); Ould v. Washington, supra. In Jones v.Habersham, 107 U.S. 174, it is said: "The bequest, in the twenty-third clause of the will, of $1,000 to the first Christian Church erected or to be erected in the village of Telfairville, in Burke Country, or to such persons as may become trustee of the same, is supported by Inglis v.Sailors, 2 Peters, 99; Ould v. Washington, supra; Russell v. Allen,107 U.S. 163, and is directly within the decisions of Lord Thurlow inAttorney-General v. Bishop, 1 Bro. Ch., 444, of Sir John Copley, afterwardsLord Lyndhurst, in Society v. The Attorney-General, 3 Russ., 142, and of Lord Hatherly in Sinnett v. Herbert, L. R. 7 Ch., 232." In fact, a very large proportion of devises of this nature are to institutions to be established in consequence of the will, and if sufficiently definite (511) they have always been upheld. Certainly we know of none declared void on the ground assigned in this exception.

2. "That a church and schoolhouse are directed to be built, at a cost not exceeding $10,000, thereby giving a discretion, without a person or corporation being named capable of exercising the discretion." It is evident that the discretion was to be exercised by the trustee, and this is a limitation thereon.

3. "That 100 acres of land are directed to be bought, and 1 acre allotted, each, to parties incapable of being designated, nor capable of enforcing the trust." A devise "for the establishment of a free school or schools for the benefit of the poor of the county" was held valid (S. v.McGowan, 39 N.C. 1; Hunt v. Fowler, 121 Ill. 269); and "for the poor in the county of Beaufort" (S. v. Gerard, 37 N.C. 210); to "a bishop, of North Carolina, and his heirs, in trust for the poor orphans of the State of North Carolina, and the said bishop and his successors have the right to select such orphans," was upheld by Pearson, C. J., in Miller v. Atkinson,63 N.C. 537; a gift to trustees, "to be by them applied to the payment of tuition money for such poor children as the trustees may designate," was sustained in Newton Academy v. Bank, 101 N.C. 488; and the interest on the fund to be applied for the "educating of poor mutes," was treated as valid in School v. Institution, 117 N.C. 164. "Each member of said church, not to exceed 100," is sufficiently definite.

4. "That the will attempts to provide for the education of the children of the indefinite persons to whom the 1 acre of land is given." The parents being ascertainable, as above said, this exception is untenable.

5. "That the paper-writing attempts to provide a house for a Moravian minister and teacher, and is too indefinite in providing who that teacher may be." The selection was evidently left to the trustees, the Moravian Church, and intended to be so left, just as the trustees (512) of Girard College, of the Griffin School, and other institutions established by virtue of a devise, select the president and professors from time to time.

6. "That the provision reciting his intention that his estate shall be used and managed by the Moravian Church of Salem to maintain a church or school at or near Clemmonsville, N.C. is too general and indefinite, and fails to point out the beneficiaries or the means by which they may be ascertained." This has already been discussed.

7. "That the said Moravian Church is not an incorporation, and is incapable of holding a trust." This is counter to the facts agreed, and need not be considered. Besides, it does not concern the defendants.

8. "That there are no beneficiaries mentioned in said paper-writing sufficiently identified that can enforce the trusts." As much so as in the Girard College case, the Griffin School case, and all similar instances. In those cases, what boy could come into court and say, "I, among others, was intended to enjoy this bounty"? The trustees could answer, "In our judgment, you are not best entitled to the benefit of the donation," yet such devises were upheld.

In Sinnett v. Herbert, supra, the Court held that "a gift to a charitable purpose, if lawful, is good, although no object be in existence at the time," citing Attorney-General v. Bishop, 1 Bro. Ch., 444, sustaining a gift for "establishing a Bishop in His Majesty's Dominions in America." In which case it was also said, "It is immaterial whether the person to take be in esse or not, or whether the legatees were, at the time of the bequest, a corporation capable of taking or not, or how uncertain the object may be, provided there be a discretionary power vested anywhere over the application of the testator's bounty to these objects, or whether their corporate designation be mistaken," which is cited in (513) Vidal v. Philadelphia, supra, which adds, "If the intention sufficiently appears in the bequest, it should be valid." In Holmesv. Mead, 52 N.Y. 232, it was held that a beneficiary need not necessarily be described by name; that it is not material that a legatee should be definitely ascertained and known at the date of the will or even at the death of the testator, and it is sufficient if he is so described that he can be ascertained and known when the right to receive the gift accrues. A provision by will that the whole estate should be used at discretion by the selectmen of B. for the special benefit of the worthy, deserving, poor, white, American, Protestant, democratic widows and orphans residing in B. is valid. Beardsley v. Bridgeport, 53 Conn. 489. The whole matter of enforcing and controlling private charities is regulated by sections 2342 to 2345 of The Code, whereby the Attorney-General or solicitor is authorized, on the suggestion of two reputable citizens, to bring suit.

9. "That the power given to the trustees to abolish the church and school makes the devise to them void." No power is given to the trustees to abolish the church and school, and the reference to the possible abolition thereof is merely a condition subsequent, and does not prevent the vesting of the estate in the trustee. This objection was answered by Pearson, C.J., in Miller v. Atkinson, supra. "It will be time enough at his (Bishop Atkinson's) death to make the objection that his successor cannot exercise the power." So it will be time enough to discuss the effect of an abolition, if it ever happens, at the time it takes place; but such a condition subsequent cannot possibly have the effect of destroying the estate.

10. "That the estate attempted to be devised is a base or qualified fee, and is therefore void." If it be admitted to be a base or qualified fee, it is not void in North Carolina. "But, however broad may (514) be the language quoted, we have no idea that it was the purpose of the Chief Justice to say that the limitation expressly defined by him as a base or qualified fee in Merrimon v. Russell, 55 N.C. 470, could not be valid in North Carolina. Such limitations are not infrequent in this and other States, and we are not prepared to adopt a view which leads to such a revolution in the law of limitations of real property." Hall v. Turner, 110 N.C. 292.

11. "That there are no words of conveyance conveying the estate to any one to hold in trust, and it therefore descends to the heirs or distributees." No technical words of conveyance are required in will.Allston v. Davis, 118 N.C. 202; The Code, sec. 2180.

12. "That the will does not contemplate a charity, for it provides that only the children of each member having 1 acre of the land be sent to school, free of charge, as long as any part of my estate remains to pay the expenses, of said church first, then of the school,' and is not in contemplation of section 2342 of The Code." While the will prescribes that such children shall be educated free, that is only a part of the trust, which provides in addition for the maintenance of the church and school at that point. The charity is not too vague and indefinite, but quite specific — for "a Moravian church and school at my native town, Clemmonsville, in Forsyth County, N.C. to be managed and controlled by the Moravian Church, of Salem, N.C."; the trust is not difficult of execution, according to the intention of the testator. He says it is his intention that all of his estate be used and managed by the Moravian Church, of Salem, to maintain the charity which he was about to establish. Instead of himself naming new trustees to administer the trust, he places this trust in the hands of that church. The testator himself was a native of Clemmonsville. He was, and had been for fifty years, a member of the Moravian Church at Salem, and died childless, and evidently wished, through his church, to perpetuate his family name by establishing (515) at the place of his nativity, which took its name from his family, a charity to be managed and controlled by the parent church. Courts incline strongly in favor of charitable gifts, and take special care to enforce them. 2 Story Eq. Jur., sec. 1169. Charitable bequests are said to come within that department of human affairs where the maxim, ut res magisvaleat quam pereat, has been and should be applied. 2 Perry Trusts, sec. 687. Until the statute of distributions (22 Car. II., ch. 13) was enacted, the ordinary was obliged to apply a portion of every intestate's estate to charity, on the ground that there was a general principle of piety and charity in every man. 2 Perry, supra, sec. 690; 2 Bl. Com., 494, 495. This was doubtless a crude beginning of the graduated inheritance tax by which in Great Britain and most of our States, the estates of the dead are now made to contribute to the benefit of the public.

It is contended that there are several cases in North Carolina in which charitable bequests were declared invalid. But these were very different from the one now before the Court. In McAuley v. Wilson, 16 N.C. 276, the testator directed that his property should be formed into a fund to pay a preacher of the Associate Seceding Party to preach at the Church of Gilead, which belonged to the Reformed Party. The Reformed Party would not allow the preacher to preach, but fastened the door and windows of the church against him. The Court said that it did not have the power to force the church to let him preach, and so the devise failed. In Holland v. Peck, 37 N.C. 255, the will required the sum to be disposed of by conference, or the different members composing the same, as they shall in their godly wisdom judge to be (516) most expedient or beneficial for the increase and prosperity of the gospel; held too indefinite to be executed. In Bridgers v. Pleasants,39 N.C. 26, the bequest was to foreign missions and to the poor saints. The Court, with fine irony, said that it was impossible for a court to say that this man, or that, was a saint, and the bequest was declared void, though it was careful to add that if the testator "had made it plain who he thought were saints, the Court would enforce the trust." In White v.University, 39 N.C. 19, the Court pronounced a provision that the proceeds be laid out in building convenient places of worship, free for the use of all Christians who acknowledged the divinity of Christ and the necessity of a spiritual regeneration, as void for uncertainty.

There are numerous cases that where the testator does not select the object of his bounty, but attempts to leave it to his executors or trustees to select the purpose or class, this is too indefinite, and the devise is void, because one cannot appoint another to make a will for him. Among cases of this kind are the famous Tilden will case, Tilden v. Green,130 N.Y., 29; Bridgers v. Pleasants, supra; Johnson v. Johnson, 36 Am. St. Rep., 104; S. c., 22 L.R.A., 179, and notes; Gambell v. Tripp, 15 L.R.A., 235; but that is an entirely different matter from a case where the object of the bounty, or the class out of which the individuals are to be selected, is definite, as in the Girard will case, the Griffin Schoolcase, and others cited above, in which the selection of the individuals of the class designated to share in the bounty is necessarily left to the trustee, since they might not even be born till long after the testator's death. To the latter class the present devise belongs.

The doctrine of cy pres does not obtain in North Carolina(Bridgers v. Pleasants, supra), and would have no application to the case before us if it did, and therefore needs no discussion. That (517) doctrine was simply that if a trust failed for any reason, the court would apply the found to some other charity as similar as possible — to "something else as good." Nor does the validity of charitable devises depend upon whether the statute, 43 Eliz., ch. 4, "Charitable Uses," is or is not in force in this State. "The opinion to that effect has been thoroughly exploded," says the United States Supreme Court in Ould v.Washington, supra, and further says, citing 2 Perry on Trusts, sec. 687, "A charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well-being of social man."

To sum up:

1. This is a charitable use.

2. Neither the doctrine of cy pres nor 43 Eliz., 4, in any wise affects the validity of a devise for such purpose in this country.

3. A latent ambiguity as to either cestui que trust or trustee is explainable.

4. The latent ambiguity here being as to the trustee, if not explained, the trust could not have failed, but a new trustee would be appointed.

5. If the object of the trust were indefinite, it would be void; otherwise, where as in this case it is definite and the selection of the individuals to enjoy its benefits is left to trustees.

After a careful review of the elaborate argument on both sides, which has been of great assistance to the Court in drafting this opinion, the judgment below is

AFFIRMED.

Cited: St. James v. Bagley, 138 N.C. 399; McLeod v. Jones, 159 N.C. 78;In re Lloyd, 161 N.C. 560; Gold Mining Co. v. Lumber Co., 170 N.C. 277;Gold v. Cozart, 173 N.C. 613; Trust Co. v. Ogburn, 181 N.C. 327,329, 330, 331.

(518)