Woodcock v. Wachovia Bank & Trust Co.

• Decision Date: 12 October 1938
• Docket Number: 100.
• Parties: WOODCOCK et al. v. WACHOVIA BANK & TRUST CO.
• Court: North Carolina Supreme Court

199 S.E. 20

214 N.C. 224

WOODCOCK et al. v. WACHOVIA BANK & TRUST CO.

No. 100.

Supreme Court of North Carolina

October 12, 1938

Appeal from Superior Court, Buncombe County; A. Hall Johnston Judge.

Action by Julian A. Woodcock, Jr., and others against the Wachovia Bank & Trust Company, executor and trustee under the will of S. Johnston Woodcock, deceased, to construe the fourth paragraph of the will of S. Johnston Woodcock, deceased. From a judgment for plaintiffs, defendant appeals.

Affirmed.

This was an action by interested parties to construe the fourth paragraph of the will of S. Johnston Woodcock, deceased. From judgment for plaintiffs, defendant appealed.

In determining the enforceability of a charitable trust, the North Carolina courts will not undertake to substitute a similar charity for one that fails, and their only purpose is to effectuate the will of the donor, if sufficiently expressed in the instrument, since cy pres doctrine is not applied in North Carolina.

Parker Bernard & Parker, of Asheville, for appellant.

Geo. H Wright, of Asheville, for appellees.

DEVIN Justice.

S. Johnston Woodcock, a resident of Buncombe County, North Carolina, died December 31, 1927, leaving a last will and testament wherein he named his brothers Julian A. Woodcock and Rufus J. Woodcock, and the Wachovia Bank & Trust Company, as executors. The question presented by the appeal concerns a bequest contained in the fourth paragraph of the will, in these words: "I then give and bequeath to my said executors the sum of $10,000.00, to be held in trust and paid out and appropriated by them within twenty years after my death, in entirety or in installments, principal and interest, to such corporations or associations of individuals as will in their judgment best promote the cause of preventing cruelty to animals in the vicinity of Asheville."

It is admitted that distribution of the estate has not been made and that the trust referred to in paragraph four has not been set up or paid out. Both the personal executors, the brothers of the deceased, have died, one in 1936, and the other in 1937, leaving the defendant Bank & Trust Company the sole surviving executor. Those now entitled under the residuary clause of the will of S. Johnston Woodcock claim that the bequest in paragraph four is void and that they are entitled to have the amount of the fund distributed as part of the residue of the estate. The corporate executor, claiming the bequest to be valid, proposes to set aside the $10,000 fund to be paid out as provided in this paragraph of the will.

A case for a declaratory judgment, under the provisions of Chap. 102, Public Laws of 1931, is thus made for the construction of paragraph four above quoted, and for the determination of its legal effect. The court below held that the bequest was void for indefiniteness and uncertainty, and that it was one which could not be executed by the corporate defendant.

The question arises, can the bequest be upheld as a charitable trust? It was said in Ould v. Washington Hospital, 95 U.S. 303, 24 L.Ed. 450, that "a charitable use, where neither law nor public policy forbids, may be applied to almost any thing that tends to promote the well-doing and well-being of social man," [page 311] and it has been uniformly held that a bequest for the protection of animals is classed as a charitable trust. Minns v. Billings, 183 Mass. 126, 66 N.E. 593, 5 L.R.A.,N.S., 686, 97 Am.St.Rep. 420; Shannon v. Eno, 120 Conn. 77, 179 A. 479; In re Grove-Grady, 1 Ch. 557, 66 A.L.R. 465; 2 Bogert on Trusts and Trustees, § 379, p. 1210; Barden v. Atlantic Coast Line R. Co., 152 N.C. 318, 67 S.E. 971, 49 L.R.A.,N.S., 801.

Trusts for charitable uses are of ancient origin. The jurisdiction of courts of chancery in England was grounded upon the common law and the civil law, and upon this was ingrafted the English statute of charitable uses, 43 Elizabeth, Chap. 4, enacted in 1601. The principles of the English Statute, defining and regulating the enforcement of charitable trusts, have been modified by statute in America, and the subject treated as one within the inherent powers of courts of equity. The Statute of Elizabeth was in force in this state until superseded by our act concerning charities, now C.S. § 4033 (State v. Gerard, 37 N.C. 210), and the equities raised by charitable bequests have been considered by our courts and administered as part of their equitable jurisdiction, independent of the statute, and in accord with applicable principles of equity.

While one of the characteristics of charitable trusts, in addition to the expression of a definite charitable purpose, is the indefiniteness of the beneficiaries, as distinguished from a direct bequest, the instrument creating the trust must not be incomplete and must be capable of execution. With respect to the uncertainty with which the purposes of the trust must be pointed out and the beneficiaries designated, there is lack of uniformity in the decisions of the courts, though it is generally held that if the instrument states the purpose of the charity in general terms and designates the beneficiaries who are to partake of the benefits as those of a class, conferring power on the trustee to select the individuals of that class, it will be upheld and enforced. But the purpose must not be so uncertain that it cannot be administered. 10 Am.Jur. 643.

It is needless to attempt to cite decisions from other jurisdictions upon the question of indefiniteness and uncertainty in charitable trusts. Many cases will be found collected and annotated in elaborate notes in 14 L.R.A., N.S., 49-155. This court has considered the subject many times, and it is not always easy to draw the distinction between trusts held void for uncertainty and those sustained and held capable of enforcement. It is well settled, however, that the doctrine of cy pres has no application in North Carolina. The courts here will not undertake to substitute a similar charity for one that fails, their only purpose being to effectuate the will of the donor, if sufficiently expressed in the instrument.

In the following instances gifts of property for charitable uses were upheld: For the erection and maintenance of a school house for indigent scholars (Griffin v. Graham, 8 N.C. 96, 9 Am.Dec. 619); "to the use of a free school or schools for the benefit of the poor of Duplin County" (State v. McGowen, 37 N.C. 9); "to the poor of the county," lands to be held "as the wardens or managers of the poor may deem most advisable" ( State v. Gerard, 37 N.C. 210); to Bishop Atkinson for benefit of "poor orphans" to be selected by him (Miller v. Atkinson, 63 N.C. 537); for "poor children" to be designated by the trustee (Newton Academy v. Bank, 101 N.C. 483, 8 S.E. 174); for educating "poor mutes" (School for D. & D. v. Institution for D., D. & Blind, 117 N.C. 164, 23 S.E. 171); to the Moravian Church for building church and school ( Keith v. Scales, 124 N.C. 497, 32 S.E. 809); to "conserve, protect and beautify" certain land and to "erect thereon * * * an auditorium" ( Wachovia Banking & Trust Co. v. Ogburn, 181 N.C. 324, 107 S.E. 238, 239); "for public school purposes" to be cared for by school committee ( Chandler v. Board of Education, 181 N.C. 444, 107 S.E. 452); land "for a home for the minister" ( Holton v. Elliott, 193 N.C. 708, 138 S.E. 3, 4); to trustees for education of a girl to be selected by them ( Humphrey v. Board of Trustees, 203 N.C. 201, 165 S.E. 547).

In Whitsett v. Clapp, 200 N.C. 647, 158 S.E. 183, a bequest of a sum derived from certain rents to be paid annually to the trustees of a church for the purpose of keeping up preaching in said church, remainder of rents to trustees of Orange Presbytery for the purpose of keeping up preaching in weak churches, and bequest of income from another fund to be paid trustees of Orange Presbytery to be used for home missionary work, were upheld, the court saying: "The trustees of Springwood Church and of Orange Presbytery are beneficiaries with capacity to invoke the equitable jurisdiction of the courts, as are also the members of a board or department whose duty it is to raise funds for home mission work and the support of weak churches-churches whose maintenance is dependent upon financial aid. We are therefore of opinion that the trusts created by the will are not void, but are sufficiently definite to be enforced."

In Miller v. Atkinson, supra, the court said: "A charitable trust is...