SEAWELL
Justice.
W. H.
Williams died April 15, 1927, leaving a last will and
testament, the pertinent provisions of which are as follows:
"This
my last will and testament provides for the disposition of my
estate in the following manner and after due and full
consideration of same by myself and wife, that my wife, Susan
Denmark Williams, provided she survive me, shall have full
possession of my estate, real and personal and life insurance
to use for her comfort and benefit during the remainder of
her life, and at her death the estate shall be held in trust
for a period of fifty years, the income, only, to be divided
between the trustees of the Universalist General Convention,
a corporation of the State of New York; The Woman's
National Missionary Association, an auxiliary of the
Universalist General Convention, and the North Carolina State
Convention of the Universalist Church.
"The
trustees of this estate shall be composed of nine members
which shall be chosen from the Executive Boards of the three
organizations, named above, three from each, they shall be
elected to hold office for a term of two years, these
elections to be made at the sessions of the General
Convention after the first board shall have served until the
next succeeding session of the said General Convention.
"These
trustees shall have full control over the estate for the term
for which they were elected and until their successors are
duly installed in office. They shall also have at their
disposal the income from the estate after the necessary
expenses for upkeep taxes, insurance and such other expenses
as may become necessary from time to time to keep the
property in a tenable condition, or for such improvements, in
a permanent way, as may seem wise and desirable, shall have
been paid from the gross income and before any division shall
be made. The Executive board of each of these three
organizations named above shall have the power to designate
the disposal of their prorate part of the income, provided
however that it shall be used only for the advancement of
Universalism in the State, the Nation and at large.
"Should
there arise any question as to what may be considered the
advancement of Universalism it is my will that it shall be
interpreted to be the teaching of the gospel under the
directions, and as prescribed by the above mentioned the
Universalist General Convention Board. It may also be used
for building and repairing of churches or parsonages, making
donations to colleges or universities of the Universalist
faith, helping worthy young men or women to secure a college
education when it is their expressed purpose to enter the
Universalist University after their education in such schools
shall have fitted them for work.
"Realizing
the value of higher education for the specific work of
teaching and enlightening others in Spiritual truths, and the
ever growing necessity for new and better institutions of
learning it is my will that should the Universalist
denomination at any time within this period of trust
establish a school in the State of North Carolina, under the
auspices of the North Carolina State Convention of
Universalist Churches and the Universalist General
Convention, for the education of the youth of our land for
better citizenship, or for the preaching of the gospel of
Universalism as interpreted by the trustees of the
Universalist General Convention, that the whole of the income
from this estate, after the above mentioned expenses shall
have been paid, shall be applied to the running expenses of
such school for the remaining years of the trust.
"At
the expiration of the period of trust (fifty years) the
estate, with such increase as may have been added, shall
become the property of such school as an endowment.
"The Board of trustees of such institution of learning
shall be the judges of how this endowment shall be continued,
whether in property or to be converted into cash, but should
there be no such school established at the expiration of the
trust period the estate may be disposed of in such manner as
seems best to the trustees of the three organizations named
above."
There
were no children surviving the testator, and his wife died on
March 29, 1933. The plaintiffs, the six brothers and
sisters and representatives of deceased brothers and sisters,
of the testator (with the exception of Miss Rosa Williams, a
sister, who did not join), bring this action to declare the
devise setting up the trust invalid upon the ground that it
is void under the rule against perpetuities, and demand the
possession of the estate as heirs-at-law of the decedent. The
defendants maintain that the will creates a charitable trust
inoffensive to the rule.
In
this State charitable trusts are not subject to the rule
against perpetuities. Griffin v. Graham, 8 N.C. 96,
9 Am.Dec. 619; State ex rel. Wardens of Poor of Beaufort
County v. Gerard, 37 N.C. 210; Keith v. Scales,
124 N.C. 497, 32 S.E. 809; Whitsett v. Clapp, 200
N.C. 647, 158 S.E. 183. The Act of 1925, Chapter 264, Section
1, taking such trusts out of the rule of perpetuities, is in
this respect but declarative of existing law. Limitations to
and over from one charity to another, or to trustees for a
charitable use, are not too remote, although the limitation
may take effect after the period prescribed in the rule
against perpetuities. See 48 C.J. p. 974, note 16;
Hopkins v. Grimshaw, 165 U.S. 342, 17 S.Ct. 401, 41
L.Ed. 739; Institution for Savings in Roxbury, etc. v.
Roxbury Home for Aged Women, 244 Mass. 583, 139 N.E. 301;
Lennig's Estate, 154 Pa. 209, 25 A. 1049.
All
this the plaintiffs concede; and further admit that the
provisions of the will under consideration would have no
infirmity in that respect, except for the provision contained
in the last paragraph, intended to operate contingently in
case of a failure to establish a school of the character
described in the will during the fifty year period of the
trust--"but should there be no such school established
at the expiration of the trust period the estate may de
disposed of in such manner as seems best to the trustees of
the three organizations named above."
It is
insisted that this breaks the continuity of the charitable
trust, since, on failure of the contingent limitation to the
school, the trustees of the three organizations named...
