Miller v. Atkinson

• Decision Date: 30 June 1869
• Court: North Carolina Supreme Court
• Parties: ANNIE W. MILLER. v. THOMAS ATKINSON.

63 N.C. 537

ANNIE W. MILLER.

v.THOMAS ATKINSON.

Supreme Court of North Carolina.

June Term, 1869.

A devise and legacy to “Bishop Thomas Atkinson, 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 to have the right to select such orphans,” &c., “and he shall direct and control said trust in the best way for the support of said orphans, and the formation of their morals and education,” creates a trust for a specified object, in behalf of a definite class, and is valid, at all events during the life of Thomas Atkinson.

The difficulties suggested as likely to occur on the death of Thomas Atkinson, in reference to the exercise of a choice of beneficiaries among the “poor,” & c., may be obviated by intervening legislation; the distinction being that where the trust is void because its objects are too indefinite there can be no aid by legislation; but where the objects are sufficiently definite and the trust is valid, the Legislature may interfere to remove any difficulty in regard to limiting the number and selecting the “orphans”--that being merely secondary and rendered necessary by the proportions of the fund given.

( Griffin v. Graham, 1 Hawks. 96, State v. McGowan, 2 Ire. Eq. 9, cited and approved.)

CASE-AGREED between the parties, adjudged by Russell, J. at Spring Term 1869, of the Superior Court of NEW HANOVER.

The case stated that the defendant was in possession of certain land described therein, and claimed a right to certain moneys by virtue of the following clause in the will of the late T. J. Hill:

“I give and bequeath unto Bishop Thomas Atkinson, Bishop of North Carolina, and his heirs and assigns, my house and lot in the town of Wilmington, North Carolina, my present residence, together with the tract of land of twenty acres, purchased from James S. Green, from and after the death of my wife, and from and after the term of her natural life, in trust for the use and benefit of the poor orphans of the State of North Carolina; and the said Bishop and his successors to have the right to select such orphans as shall receive benefit under this trust and bequest; and he shall direct and control said trust in the best way for the support of said orphans, and the formation of their morals and education as to him may seem best. And I do also give and devise and bequeath unto the said Bishop Thomas Atkinson and his executors and administrators, for the same trust and purposes as above set forth, the sum of ten thousand dollars, to be paid to him or to his successors to this trust by my executors, from and after the death of my wife aforesaid, and not till then, and no right or interest is to accrue to the same for and during the term of her natural life, but to be paid from and after the termination thereof and not till then.”

The question submitted to the Court was, “whether the defendant holds said real estate, and is entitled to said legacy of ten thousand dollars in trust and for the purposes set forth, or whether the trusts are void?”

His Honor having decided in favor of the defendant, the plaintiff appealed.

Strange, for the appellant , cited and remarked upon Griffin v. Graham, 1 Hawks, 96, State v. Gerard, 2 Ire. Eq. 210, Holland v. Peck, Ib. 255, White v. University, 4 Ire. Eq. 19, Bridges v. Pleasants, Ib. 30, McCauley v. Wilson, 1 Dev. Eq. 276, 1 Baptist Association v. Hart's Ex'rs., 4 Wheat. 1,-- and submitted, that as the devisee in trust, as described in the will, was neither a natural person nor a corporation, the Court could not deal with him; and further, that as the class of cestury que trusts was indefinite, and depended for identification upon the discretion of the trustee as described; they did not constitute such a party as could appeal to the Court for the substitution of a proper trustee.

Person, Moore and W. H. Battle & Sons, contra , cited, besides the cases mentioned in the brief for the appellant, State v. McGowan, 2 Ire. Eq. 9, Witman v. Lex, 17 Serg. & R. 88, Ex parte Cassell, 3 Watts 440, Morrice v. Bishop of Durham, 10 Ves. 522, Girard will case, 2 How. U. S. 127, Const. of N. C., Art. 11, Sects. 7 and 8, McDonough's Ex'rs. v. Murdoch, 15 How. U. S. 367, Person v. Cary, 24 How. U. S. 486, Stanly v. Colt, 5 Wall. 119.

PEARSON, C. J.

The legal estate being in the defendant, (see Davis v. Atkinson, 63 N.C. 210,) there is no difficulty on that head; so the case turns on the validity of the trust.

It is insisted that the trust is so indefinite that it cannot be executed, and is for that reason void. Without taking upon ourselves the labor of discussing all of the cases on “charitable trusts,” and determining whether there is not some conflict, we think it enough to say, that if there be any seeming conflict, it is in reference to the application of the principle, not to the principle itself; for it is taken to be settled in all of the cases, from the leading case of Griffin v. Graham, 1 Hawks 96, to the end of the list, that a charitable trust is not too indefinite, provided the objects of the trust are certain, or can be made so; and provided the purposes of the trust are indicated with enough certainty to enable the Court to see that there may be “ways and means” to give effect to them.

1. The objects of...