Mars v. Gibert , 93 S.C. 455 ( 1913 )

February 4, 1913. The opinion of the Court was delivered by This appeal is from an order of the Circuit Court sustaining a demurrer to the answer and granting the relief demanded in the complaint.

There is no dispute as to the facts which appear from the pleadings. Dr. John de la Howe died in Abbeville county some time before the year 1800, leaving a will dated 2 January, 1797, which was duly admitted to probate. He devised nearly all of his property to trustees to be used in founding and maintaining an agricultural and mechanical school on his land in Abbeville county in which twelve poor boys and twelve poor girls were to be supported and taught, and in which the children living in the neighborhood who chose to attend were also to be instructed.

The will contemplated that the trustees should be appointed by the Agricultural Society of South Carolina, and in case the society should decline to make the appointment, that then the trustees should be designated by the legislature. On that point the provision was made: "And as the aim of this my last will and testament is to raise useful citizens, I do hereby humbly request the Honorable Legislature that in the above case they may be pleased to incorporate such trustees as they shall think proper to appoint, under such clauses and regulations as in their great wisdom shall seem meet; and for the same reason of intending to raise useful citizens to the State many whereof without such an institution would be a nuisance, I beg the Honorable Legislature graciously pleased to keep the institution under their fatherly protection."

The agricultural society having failed to execute the power of appointment the legislature of the State designated the trustees, and E.A. Mars, J.B. Hollaway, Albert Gibert, John U. Wardlaw and W.B. Ulrich now constitute the board holding under legislative authority. The school has been conducted up to the present time on the testator's land in accordance with the direction of the will. In 1912 the trustees represented to the General Assembly that the public schools were supplying the same school facilities as were furnished by the De la Howe school, and that for this reason it had come to pass that the benevolent purpose of the testator could not be carried out if they adhered strictly to the scheme of the will, and that the general purpose of making good citizens of twenty-four poor children could be better conserved by using the funds for the foundation of scholarships in Clemson College for the boys and in Winthrop College for the girls. Accepting this view the General Assembly passed a concurrent resolution authorizing the trustees to institute legal proceedings "for the purpose of determining whether or not the said trustees can be authorized by the General Assembly to establish and maintain from the revenue of said estate such number of scholarships for boys and girls in Clemson Agricultural College and Winthrop Normal Industrial College as the said trustees may deem proper and the revenue of the said estate justify." By the resolution the trustees were authorized to make the contemplated change and establish the scholarships, if the Court should decide that the trust fund could be used for that purpose. Thereafter the trustees, by resolution, determined to make the change, and this action was brought by E.A. Mars and J.B. Hollaway in their own right as citizens of Abbeville county, and as trustees under the will, to enjoin the board from carrying out its purpose, the contention of the plaintiffs being, that under the laws of this State the change proposed "will amount to the violation of the trusts imposed by the said will, and the result will be that the said estate will be escheated to the State of South Carolina, and that it will revert to the heirs of the testator to the great and irreparable damage of the plaintiffs and all other citizens of Abbeville county."

The position taken in support of the proposed change from the support of a local industrial school to the endowment of scholarships in State colleges is that when the trustees of any charity fund find that it cannot be advantageously administered for the purpose set out in the instrument under which they act, they may apply the funds to some other charitable purpose different from the original purpose but cognate to it. This is known as the cy-pres doctrine recognized in England and many other common law jurisdictions. The Circuit Judge based his decree on this doctrine, holding that it should be applied and the proposed change sanctioned. In this State, however, the doctrine has been repudiated in more than one case. In Attorney General v. Jolly, 2 Strob, Eq. 395, the Court says on the subject of cy-pres: "That is a doctrine which this Court will be very reluctant to adopt without a strong necessity, and very mature reflection. It has never, to our knowledge, been adopted or recognized in our Courts, and we are persuaded that it ought not to be adopted." The holding is to the same effect in Pringle v.Dorsey, 3 Rich. 509.

The only particular in which the trust of the will and the trust proposed by the trustees and the General Assembly coincide is that both contemplate the development into good citizens of twelve poor boys and an equal number of poor girls of Abbeville county by industrial training. In all other particulars the trust proposed will be essentially different from the trust of the will. It is obvious from the will, especially the portions we have italicized, that the testator had three main purposes in view. First, the establishment and maintenance of an agricultural and mechanical school as an institution in Abbeville county stimulating and improving the industrial life of the entire community; second, the training free of charge of twenty-four boys and girls, not as college men and women, but in the beginning of school life; and third, the like training of the children of the neighborhood not supported by the fund. All of these objects would be defeated by the change. There would be no local institution, and only boys and girls fit for college would receive the benefit. It follows that under the laws of this State the Court is obliged to refuse to sanction the proposed change of the trust fund.

It does not result, however, that the details of the plan laid down in the will must be followed to the letter. The main purpose being kept in view, considerable flexibility will always be allowed in the details of the execution of a trust, so as to adapt it to the changed conditions. Mfg. Co. v.City of Zanesville, 20 Ohio 483; Hesketh v. Murphy, 36 N.J. Eq. 309; Hadley v. Forsee, 14 L.R.A. 144 (Note); Perry on Trusts, par. 687; 6 Cyc. 903; 6 Cyc. 959.

As we have seen, it is perfectly obvious that the main purpose of this trust is the maintenance of a school in the neighborhood where the testator lived for the benefit primarily of twenty-four poor boys and girls without charge, and generally of the boys and girls of the entire community, with incidental benefits to all the people of the community.

When the trust was created the State made little provision for the teaching of poor boys and girls, while now nearly all the schools are free, and there is little difference between the school facilities of the rich and the poor. But the main branches, namely, agriculture and mechanic arts, which the testator proposed to have taught to the children of the neighborhood, are still little taught in the public schools. It is now generally recognized that the teaching of these branches is not only practicable and advisable, but absolutely essential to the progress of every community. It may not be practicable to conduct such a school at the precise place in the community designated by the will — that is not essential to the main purpose of the trust. It may not be possible to make such a school successful, except when conducted in conjunction with the public school of the neighborhood — but that is no objection. It is true that the trustees of the De la Howe school could not surrender their trust to the control of the public school trustees, but they could elect the superintendent and teachers of the public school, head master and teachers of the De la Howe Agricultural and Mechanical School, and the two institutions could be thus conducted in conjunction to the benefit of the community.

This would not defeat, but accomplish, the purpose of the benevolent testator, and it would carry out the scheme laid down by him for the accomplishment of his purpose with only such variation in detail as changed conditions have made necessary. Any plan of administration like this keeping in view and carrying out the main purpose of the trust would be within the discretion of the trustees.

We are unable to conclude that the plan of the testator has failed or that the proposed change can be sanctioned under our law.

Reversed.