King v. Banks

• Decision Date: 07 November 1929
• Docket Number: 4 Div. 430.
• Citation: 220 Ala. 274,124 So. 871
• Parties: KING ET AL. v. BANKS.
• Court: Alabama Supreme Court

124 So. 871

220 Ala. 274

KING ET AL. v. BANKS.

4 Div. 430.

Supreme Court of Alabama

November 7, 1929

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Bill in equity, to declare and enforce a trust in land for school purposes in the Town of Midway, by Lamar King and others against Clifford W. Banks. From a decree dissolving a temporary injunction and dismissing the bill, complainants appeal. Affirmed.

Chauncey Sparks, of Eufaula, for appellants.

W. H Merrill, of Eufaula, for appellee.

SAYRE J.

Appellants' bill sought a decree declaring and enforcing a trust in the Cedar Tree lot in the town of Midway. As shown by the conveyance exhibited with the bill, this lot was conveyed in the year 1883 by the then owners to named "Trustees of the Midway and James Institute *** to be used for school purposes only." The original complainants were Lamar King and two others who undertook to show their interest in the subject-matter of litigation, the Cedar Tree lot, by averring that they were resident citizens of the town of Midway each having children of school age attending the schools in said town. By their amended bill complainants have sought to show their interest as trustees of the separate school district including the town of Midway, created by the Act of the Legislature dated February 23, 1899 (Loc. Acts 1898-99, p. 1701 et seq.).

Considering so much of the decree as dissolved the temporary injunction-which protected the lot in controversy against changes detrimental to its dedicated use pendente lite-thereby taking into account the affidavits pro and con upon which the motion to dissolve was submitted, we think the motion was properly sustained. We have stated the controlling clause (so far as concerns the question here at issue) of the conveyance to the trustees of the Midway and James Institute. Looking to the affidavits, we are informed that the institute was a denominational Methodist school designed and operated primarily for the benefit of the children of Methodist families, though children from families of other faiths were allowed to attend. The Baptists of Midway-so for brevity to speak of Midway and James-had a like school. This last-mentioned fact, however, is noted only for its tendency to disclose the denominational mindedness of the community if that may be of any significance. We consider that the deed to the trustees of the Methodist Institute "and their successors in office forever" must be construed as creating a trust for the education of children who might attend the Methodist Institute, not a trust for the benefit of the public schools or schools generally-in effect a trust for the Methodist Institute to be administered by the trustees of that Institute for the ultimate benefit of the children who might attend there. The evidence shows without contradiction that upon the establishment by the Legislature of the separate school district for the common benefit of all the white children of the territory therein designated the Methodist Institute was abandoned.

To allow the diversion of the use of the property herein litigation to the purpose proposed by complainants' bill would permit its diversion to a use not contemplated by the settlers of the trust. The possibility of a use of the property merely approximating the use intended by the grant to named trustees, i. e., trustees of a named institution, will not save the trust. The doctrine of cy pres has never been allowed by the courts of this state. At this point we quote the language of Carter v. Balfour, 19 Ala. 830: "I do not recognize the doctrine of 'cypres,' which, in substance is, if you cannot find the society specified in the will (the question there arose out of a disposition of property by will) or apply the fund to the charity intended by the testator, the court will then...