Brandis v. Trustees of Davidson College

• Decision Date: 09 April 1947
• Docket Number: 378
• Citation: 41 S.E.2d 833,227 N.C. 329
• Parties: BRANDIS et al. v. TRUSTEES OF DAVIDSON COLLEGE et al.
• Court: North Carolina Supreme Court

41 S.E.2d 833

227 N.C. 329

BRANDIS et al. v. TRUSTEES OF DAVIDSON COLLEGE et al.

No. 378

Supreme Court of North Carolina

April 9, 1947

Proceeding under Declaratory Judgment Act to sell part of trust property for benefit and preservation of trust.

Under the will of Maxwell Chambers, who died in 1855, certain lots in the Town of Salisbury are devised to the Elders of the First Presbyterian Church of Salisbury and their successors in office, 'in trust for the use of said Church * * * and to be an appendage to said Church, reserving and withholding from them the right of selling the same or any part of them but it is my desire that they (the Elders &c) shall so partition said lots off and have them so improved with buildings as will by their rent produce a Revinew for said Church * * * if the Elders fail or neglect to execute the trust and conditions herein required of them, then * * * any * * * property or funds that I have or do hereinafter devise to the said Elders in trust for the use and benefit of said Church shall pass over and become vested in the Trustees of Davidson College and their successors in trust for the use and benefit of said institution on condition they keep the enclosure or building around and over our family burying ground & the church property in a good state of repair.'

Plaintiffs allege that by reason of changed conditions, the lots devised to them in trust by Maxwell Chambers have now become very valuable business property and that plaintiffs 'are not financially able to develop and handle the same profitably and are unable adequately to partition off said lots and have them improved with buildings as will by their rent produce a revenue for said Church * * * and that said lots are, and will continue to be, a burden and not a benefit to said Church for the reason that plaintiffs are not financially able to keep up, develop and maintain the same adequately.'

Wherefore the plaintiffs ask to be authorized 'to sell, mortgage and/or lease the Church Square lots either as a whole or in parts, and, subject to the orders of the court, apply the proceeds to the erection * * * of a new Church and Sunday school building or buildings, and the creation of a reasonable maintenance fund for the same.'

The heirs of the testator filed answer and cross-action, asserted failure of the trust and asked that the Trustees of Davidson College be required to assert their rights or disavow any claim to the property, and in the latter event, the heirs claim the property by forfeiture and reverter. Plaintiffs demurred to this cross-action. Overruled; exception.

The Trustees of Davidson College filed answer, renounced none of their rights and asked for protection of same.

The court entered judgment in accordance with the prayer of the complaint, and adjudged that the heirs at law and next of kin of the testator recover nothing by their cross-action.

Plaintiffs appeal from failure to sustain their demurrer to the cross-action.

The heirs at law of Maxwell Chambers appeal from the court's findings and judgment.

Craige & Craige, Clarence Kluttz, and Kerr Craige Ramsay, all of Salisbury, for plaintiffs, appellants-appellees.

J. M. Broughton, of Raleigh, for heirs at law of Maxwell Chambers, defendants, appellants.

John C. Kesler, of Salisbury, for guardian ad litem, appellant.

No appearance for Trustees of Davidson College.

STACY Chief Justice.

We think the parties have misconceived...