{ "id": 8660111, "name": "EDWARD W. KEITH, Administrator c. t. a. of E. T. Clemmons, v. MARY P. SCALES, et als.", "name_abbreviation": "Keith v. Scales", "decision_date": "1899-04-18", "docket_number": "", "first_page": "497", "last_page": "517", "citations": [ { "type": "official", "cite": "124 N.C. 497" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "15 L. R. A., 235", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "22 L. R. A., 119", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "36 Am. St. Rep., 104", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "130 N. Y., 29", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2245189 ], "opinion_index": 0, "case_paths": [ "/ny/130/0029-01" ] }, { "cite": "39 N. C., 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2100082 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/39/0026-01" ] }, { "cite": "37 N. C., 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681812 ], "opinion_index": 0, "case_paths": [ "/nc/37/0255-01" ] }, { "cite": "16 N. C., 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274925 ], "opinion_index": 0, "case_paths": [ "/nc/16/0276-01" ] }, { "cite": "118 N. C., 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652881 ], "opinion_index": 0, "case_paths": [ "/nc/118/0202-01" ] }, { "cite": "110 N. C., 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273231 ], "opinion_index": 0, "case_paths": [ "/nc/110/0292-01" ] }, { "cite": "55 N. C., 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695448 ], "opinion_index": 0, "case_paths": [ "/nc/55/0470-01" ] }, { "cite": "53 Conn., 489", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 518561 ], "opinion_index": 0, "case_paths": [ "/conn/53/0489-01" ] }, { "cite": "52 N. Y., 232", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 510970 ], "opinion_index": 0, "case_paths": [ "/ny/52/0232-01" ] }, { "cite": "117 N. C., 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652746 ], "opinion_index": 0, "case_paths": [ "/nc/117/0164-01" ] }, { "cite": "101 N. C., 488", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "63 N. C., 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278225 ], "opinion_index": 0, "case_paths": [ "/nc/63/0537-01" ] }, { "cite": "31 N. C., 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687842 ], "opinion_index": 0, "case_paths": [ "/nc/31/0210-01" ] }, { "cite": "121 Ill., 269", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5387858 ], "opinion_index": 0, "case_paths": [ "/ill/121/0269-01" ] }, { "cite": "39 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2100130 ], "opinion_index": 0, "case_paths": [ "/nc/39/0001-01" ] }, { "cite": "107 U. S., 163", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3500025 ], "opinion_index": 0, "case_paths": [ "/us/107/0163-01" ] }, { "cite": "107 U. S., 174", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3500221 ], "opinion_index": 0, "case_paths": [ "/us/107/0174-01" ] }, { "cite": "39 N. C., 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2100116 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/39/0019-01" ] }, { "cite": "8 N. C., 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275455 ], "opinion_index": 0, "case_paths": [ "/nc/8/0096-01" ] }, { "cite": "95 U. S., 303", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3384835 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/95/0303-01" ] }, { "cite": "123 N. C., 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657792 ], "opinion_index": 0, "case_paths": [ "/nc/123/0126-01" ] }, { "cite": "45 N. C., 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684102 ], "opinion_index": 0, "case_paths": [ "/nc/45/0065-01" ] }, { "cite": "4 Hun., 368", "category": "reporters:state", "reporter": "Hun.,", "opinion_index": 0 }, { "cite": "119 N. C., 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654736 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/119/0233-01" ] }, { "cite": "91 N. C., 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695241 ], "opinion_index": 0, "case_paths": [ "/nc/91/0464-01" ] }, { "cite": "92 N. C., 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274660 ], "opinion_index": 0, "case_paths": [ "/nc/92/0578-01" ] }, { "cite": "118 N. C., 763", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653979 ], "pin_cites": [ { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/nc/118/0763-01" ] }, { "cite": "115 N. C., 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652262 ], "opinion_index": 0, "case_paths": [ "/nc/115/0489-01" ] } ], "analysis": { "cardinality": 1333, "char_count": 37440, "ocr_confidence": 0.419, "pagerank": { "raw": 3.332597367375067e-07, "percentile": 0.8736729438666115 }, "sha256": "05ebae9fa3e554e4e0f23c0616edceb2249a80246a7514ad64a37352afb1cbd2", "simhash": "1:9c79049240cf8c1a", "word_count": 6608 }, "last_updated": "2023-07-14T20:09:58.946028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDWARD W. KEITH, Administrator c. t. a. of E. T. Clemmons, v. MARY P. SCALES, et als." ], "opinions": [ { "text": "ClabK, J.\nThis proceeding is brought by the administrator with the will annexed of E. T. Clemmons against his heirs at law, next of kin, and devisees to have the will proved in solemn form, and for a construction of the same. He died childless. After a devise to his widow, which is eliminated from our consideration by reason of her having dissented, and three small bequests to relatives, which are not contested, the testator devised and bequeathed his estate, estimated at $100,000, as follows:\n\u201cAfter tbe above then I will and bequeath all the rest of my estate, including my wife\u2019s, at her death, for a Moravian Church and School in my native town, Olemmonsville, Eor-syth County, N. O. I desire the Moravian Church, of Salem, appoint proper persons to purchase one hundred acres of land in or near Olemmonsville; to first erect a substantial church of brick, not to exceed in cost $10,000, a school building not to exceed in cost $10,000, and a comfortable house for the entire use of a Moravian minister and teacher. I desire each member of said church have a lot of one acre of this land purchased at $1.00 each, as far as the land goes, and his children to be sent to school free of charge as long as any part of my estate remains to pay the expenses of said church first, then school. To be managed and controlled by the church, of Salem, N. C. It is my intention that all my estate except as before stated be used and managed by the Moravian Church, of Salem, to maintain a church and school at or near Olemmonsville, N. G., and when, if ever, abolished then tp go to my nearest living relatives.\u201d\nThe ease having been transferred, upon issues raised by the pleadings to the Superior Court, the Judge, upon facts agreed, found as a fact that, \u201cThe Board of Provincial Elders of the Southern Province of the Moravian Church, or Umitas Fra-trum/\u2019\u2019 officially located at Salem, N. C., and a corporation under the laws of North Carolina was the trustee intended in his will by the designation \u201cMoravian Church of Salem\u201d and adjudged that the bequest and devise of the residue of the estate as above set forth was valid, and directed that the net proceeds of the personality after payment of the widow\u2019s distributive share, the three small bequests mentioned and the costs of administration, be paid over to said trustee, and that said trustee is the owner and entitled to the possession of all the real estate of which the testator died seized, subject to the dower rights of the widow. Erom this judgment the defendants appealed, assigning the following grounds of exception, which will be noted seriatim.\nThe first two exceptions are to the findings of fact that the \u201cBoard of Provincial Elders of the Southern Province of the Moravian Church,\u201d was the trustee named. This was shown to be the official designation of the religious denomination, commonly known as the Moravian Church, with its headquarters at Salem, which is incorporated in North Carolina, and owns large bodies of land, having received inter alia at one time a grant of 1,000,000 of acres of land from Earl Granville, holding and investing the funds of the Province and the legal title to the Churches and Chapels and schools within its jurisdiction, including the well known and long established female college at Salem. It was also in the facts admitted that the Moravian Church congregation at Salem, owing allegiance to the Province above referred to, of which it is a member, was also incorporated, and owned considerable property, including four affiliated chapels, and is also commonly known as the Moravian Church of Salem, but it exercises no control over any property or Church beyond its immediate vicinity, and is subject to the authority of the Province of which it is a member, and from which its ministers receive their appointment. (This last corporation and its charter have been before this Court in United Brethren v. Commissioners, 115 N. C., 489). At the most, this was a latent ambiguity, and explainable by parol evidence. Simmons v. Allison, 118 N. C., 763, 776; Asheville v. Aston, 92 N. C., 578; Ryan v. Martin, 91 N. C., 464; Tilley v. Ellis, 119 N. C., 233. The finding of fact by the Judge to whom by consent it was submitted, is binding upon the defendants. In Tilley v. Ellis, supra, a latent ambiguity was sent back to be passed upon by the jury, but, as in that case, the ambiguity was as to the cestui que trust, tbe Court added that if it could not be determined who was meant, the devise would lapse for the benefit of the heirs. Trustees v. Colgrove, 4 Hun., 368, and cases there cited. But here the ambiguity being as to the trustee, the Court would not allow a trust to fail for want of a trustee. Besides, it is not ground for exception to the defendants who can not be concerned who is trustee.\nBut when the case gets back into the Superior Court, it may be well for the administrator, for his own protection, to cause the Moravian Congregation at Salem, which is officially incorporated as the \u201cCongregation of the United Brthren of Salem,\u201d to be made a party defendant (it is not a party to this action), that it may be bound by the final order holding the Provincial Elders of the Moravian Church to be the trustee designated, or given opportunity to contest the same if that congregation should so desire. It is a matter between the two congregations commonly known as the \u201cMoravian Church of Salem,\u201d as to which was intended to be the trustee. This will not affect the validity of the devise or the rights of the defendants. An uncertainty as to the cestui que trust is fatal to a devise in trust, unless it is a latent ambiguity which can be ascertained. Tilley v. Ellis, supra; Institution v. Norwood, 45 N. C., 65. It is otherwise where the uncertainty is as to the trustee, in which case the Court will protect the trust and if need be appoint a new trustee. 2 Perry Trusts, Sections 730, 731.\nThe next two exceptions are that the Court erred in not holding that the trustee, the Moravian Church, could not hold real estate, and besides has no corporate existence. It appears from the facts agreed, that both the organizations referred to above, and both of which are commonly known as the \u201cMoravian Church of Salem\u201d (one being the Province, with headquarters at Salem, and the other the .Congregation of that Church in that town), were incorporated, and both have power to take and hold property, real and personal. But if there had beeu no incorporation, the Court would hold the fund until \u201cincorporation could be taken out\u201d. Allen v. Baskerville, 123 N. C., 126; Ould v. Washington, 95 U. S., 303; and, if that were not done in a reasonable time, appoint a substituted trustee.\nThe other exceptions are to alleged error in not holding the devise for Church and School at Olemmonsville void:\n1. \u201cThat the same is attempted to be given to a Church and School not in existence.\u201d In Griffin v. Graham, 8 N. C., 96, the will provided that two acres of land should be purchased, and \u201cthat a brick house shall be erected on said land suitable for a school room, and furnished in a plain manner for the accommodation of indigent scholars, and be called Griffin Eree School\u201d. The School had no previous existence, but was to be established by the trustees. The Court upheld the trust, and the institution is still the pride of New Bern. To same effect, White v. University, 39 N. C., 19; Vidal v. Philadelphia, 2 Howard (U. S.), 127, (the famous Girard Will Case); Ould v. Washington, supra. In Jones v. Habersham, 107 U. S., 174, it is said: \u201cThe bequest, in the 23rd clause of the will, of $1,000, to the first Christian Church erected or to be erected in the village of Telfairville, in Burke County, or to such persons as may become trustees of the same, is supported by Inglis v. Sailors, 2 Peters, 99; Ould v. Washington, supra; Russell v. Allen, 107 U. S., 163, and is directly within the decisions of Lord Thurlow in Attorney General v. Bishop, 1 Bro. Ch., 444, of Sir John Copley, after-wards Lord Lyndhurst, in Society v. The Attorney General, 3 Russ, 142, and of Lord Hatherly in Sinnett v. Herbert, L. R. 7 Ch., 232.\u201d In fact a very large proportion of devises of this nature are to institutions to be established in consequence of the will, and if sufficiently definite tbey bave always been upheld. Certainly we know of none declared void on the ground assigned in this exception.\n2. \u201cThat a church, and school house are directed to be built at a cost not exceeding $10,000, thereby giving a. discretion, without a person or corporation being named capable of exercising the discretion\u201d. It is evident that the discretion was to be exercised by the trustee, and this is a limitation thereon.\n3. \u201cThat 100 acres of land are directed to be bought, and one acre allotted each to parties incapable of being designated, nor capable of enforcing the trust.\u201d A devise \u201cfor the establishment of a free school or schools for the benefit of the poor of the county,\u201d was held valid. State v. McGowan, 39 N. C., 1; Hunt v. Fowler, 121 Ill., 269; and \u201cEor the poor in the County of Beaufort\u201d; State v. Gerard, 31 N. C., 210; to \u201cA. 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 have the right to select such orphans,\u201d was upheld by PeaesoN, C. J., in Miller v. Atkinson, 63 N. C., 537; a gift to trustees \u201cto be by them applied to the payment of tuition money for such poor children as the trustees may designate,\u201d was sustained in Newton Academy v. Bank, 101 N. C., 488; and the interest on the fund to be applied for the \u201ceducating of poor mutes,\u201d was treated as valid in School v. Institution, 117 N. C., 164. \u201cEach member of said Church not to exceed 100,\u201d is sufficiently definite.\n4. \u201cThat the will attempts to provide for the education of the children of the indefinite persons to whom the one acre of land is given.\u201d The parents being ascertainable, as above said, this exception is untenable.\n5. \u201cThat the paper writing attempts to provide a house for a Moravian minister and teacher, and is too indefinite in providing who that teacher may be.\u201d The selection was evidently left to tbe trustees, tbe Moravian Oburcb, and intended to be so left, just as tbe trustees of Girard College, of tbe Griffin School, and other institutions established by virtue of a devise, select tbe President and Professors from time to time.\n6. \u201cThat tbe provision reciting bis intention that bis etsate shall be used and managed by tbe Moravian Church of Salem to maintain a Church or School at or near Clemmons-ville, N. C., is too general and indefinite, and fails to point out tbe beneficiaries, or tbe means by which they may be ascertained.\u201d This has been already discussed.\n7. \u201cThat the said Moravian Church is not an incorporation, and is incapable of holding a trust.\u201d This is counter to the facts agreed, and need not be considered. Besides, it does hot concern the defendants.\n8. \u201cThat there are no beneficiaries mentioned in said paper writing sufficiently identified that can enforce the trusts.\u201d As much so as in the Girard College case, the Griffin School case, and all similar instances. In those eases, what boy could come into Court and say, \u201cI, among others, was intended to enjoy this bounty.\u201d The trustees could answer, \u201cIn our judgment you are not best entitled to the benefit of the donation,\u201d yet such devises were upheld.\nIn Sinnett v. Herbert, supra, the Court held that \u201ca gift to a charitable purpose, if lawful, is good although no object be in existence at the time,\u201d citing Attorney General v. Bishop, 1 Bro. Ch., 444, sustaining a gift for \u201cestablishing a Bishop in His Majesty\u2019s Dominions in America.\u201d In which case it was also said, \u201cIt is immaterial whether the person to take be in esse or not, or whether the legatees were, at the time of the bequest, a corporation capable of taking or not, or how uncertain the object may be, provided there be a discretionary power vested anywhere over the application of the testator\u2019s bounty to these objects; or whether their corporate designation be mistaken,\u201d which, is cited in Vidal v. Philadelphia, supra, which adds, \u201cIf the intention sufficiently appears in the bequest, it should be valid.\u201d \u201cIn Holmes v. Mead, 52 N. Y., 232, it was held that a beneficiary need not necessarily be described by name, that it is not material that a legatee should be definitely ascertained and known at the date of' the will or even at the death of the testator; and it is sufficient, if he is so described that he can be ascertained and known when the right to receive the gift accrues. A provision by will that the whole estate should be used at discretion by the selectmen of B, for the special benefit of the worthy, deserving poor, white, American, Protestant, democratic widows and orphans, residing in B, is valid. Beardsley v. Bridgeport, 53 Conn., 489. The whole matter of enforcing and controlling private charities is regulated by Sections 2342 to 2345, of The Code, whereby the Attorney General or Solicitor is authorized, on the suggestion of two reputable citizens, to bring suit.\n9. \u201cThat the power given to the trustees to abolish the church and school makes the devise to them void.\u201d No power is given to the trustees to abolish the church and school, and the reference to the possible abolition thereof is merely a condition subsequent, and does not prevent the vesting of the estate in the trustee. This objection was answered by Pearson, O. J., in Miller v. Athinson, supra. \u201cIt will be time enough at his (Bishop Atkinson\u2019s) death to make the objection that his successor cannot exercise the power.\u201d So it will be time enough to discuss the effect of an abolition, if it ever happens, at the time it takes place; but such a condition subsequent can not possibly have the effect of destroying the estate.\n10. \u201cThat the estate attempted to be devised is a base or qualified fee, and is therefore void.\u201d If it fee admitted to be a base or qualified fee, it is not void in North Carolina. \u201cBut however broad may be the language quoted, we have no idea that it was the purpose of the Chief Justice to say that the limitation expressly defined by him as a base or qualified fee in Merrimon\u2019s case (55 N. C., 470) could not be valid in North Carolina. Such limitations are not infrequent in this and other States, and we are'not prepared to adopt a view which leads to such a revolution in the law of limitations of real property.\u201d Hall v. Turner, 110 N. C., 292.\n11. \u201cThat there are no words of conveyance conveying the estate to any one to hold in trust, and it therefore descends to the heirs and distributees.\u201d No technical words of conveyance are required in wills. Allston v. Davis, 118 N. C., 202; Code, Section 2180.\n12. \u201cThat the will does not contemplate a charity, for it provides that only the children of each member having one acre of the land be sent to school free of charge, as long as any part of my estate remains to pay the expenses of said church first, then the school, and is not in contemplation of Section 2342, of The Code.\u201d While the will prescribes that such children shall be educated free, that is only a part of the trust, which provides in addition for the maintenance of the church and school at that point. The charity is not too vague and indefinite, but quite specific \u2014 for \u201ca Moravian Church and school at my native town, Clemmonsville, in Forsyth County, N. C., to be managed and controlled by the Moravian Church, of Salem, N. C.,\u201d the trust is not difficult of execution according to the intention of the testator. He says that it is his intention that all of his estate be used and managed by the Moravian Church, of Salem, to maintain the charity which he was about to establish. Instead of himself naming new trustees to administer the trust, he places this trust in the hands of that Church. The testator himself was a native of Clemmonsville. He was, and had been for fifty years, a member of the Moravian Cburch at Salem, and died childless, and evidently wished through his Church to perpetuate his family name by establishing at the place of his nativity, which took its name from his family, a charity to be managed and controlled by the parent Church. Courts incline strongly in favor of charitable gifts, and take special care to enforce them. 2 Story Eq. Jur., Section 1169. Charitable bequests are said to come within that department of human affairs where the maxim ut res magis valeat quam pereat has been and should be applied. 2 Perry Trusts Section 687. Until the statute of distributions (22 Car. II., Ch. 13) was enacted the Ordinary was obliged to apply a portion of every intestate\u2019s estate to charity, on the ground that there was a general principle of piety and charity in every man. 2 Perry, supra, Section 690; 2 Bl. Cora. 494, 495. This was doubtless a crude beginning of the graduated inheritance tax by which, in Great Britain and most of our States, the estates of the dead are now made to contribute to the benefit of the public.\nIt is contended that there are several cases in North Carolina in which charitable bequests were declared invalid. But these were very different from the one now before the Court. In McAuley v. Wilson, 16 N. C., 276, the testator directed that his property should be formed into a fund to pay a preacher of the Associate Seceding Party to preach at the Church of Gilead, which belonged to the Eeformed Party. The Eeformed Party would not allow the preacher to preach, but fastened the door and windows of the church against him. The Court said that it did not have the power to force the Church to let him preach, and so the devise failed. In Holland v. Peck, 37 N. C., 255, the will required the sum to be disposed of by Conference or the different members composing the same, as they shall, in their Godly wisdom, judge to be most expedient or beneficial for the increase and prosperity of the Gospel; held too indefinite to be executed. In Bridgers v. Pleasants, 39 N. C., 26, the bequest was to foreign missions, and to the poor saints. The Court, with fine \u2022irony, said, that it was impossible for a Court to say that this man or that was a Saint, and the bequest was declared void, though it was careful to add that if the testator \u201chad made it plain who he thought were Saints, the Court would enforce the trust.\u201d In White v. University, 39 N. C., 19, the Court pronounced a provision that the proceeds be laid out in building convenient places of worship, free for the use of all Christians who acknowledged the divinity of Christ, and the .necessity of a spiritual regeneration, as void for uncertainty.\nThere are numerous cases that where the testator does not select the object of his bounty but attempts to leave it to his executors or trustees to select, the purpose or class, this is too indefinite, and the devise is void because one cannot appoint another to make a will for him. Among cases of this kind are the famous Tilden will case, Tilden v. Green, 130 N. Y., 29; Bridgers v. Pleasants, supra; Johnson v. Johnson, 36 Am. St. Rep., 104; S. C. 22 L. R. A., 119, and notes; Gambell v. Tripp, 15 L. R. A., 235; but that is an entirely different matter from a case where the object of the bounty, or the class out of which the individuals are to be selected, is definite, as in the Girard will case, the Griffin School case, and others cited above, in which the selection of the individuals of the class designated to share in the bounty is necessarily left to the trustee, since they might not even be born till long after the testator\u2019s death. To the latter class, the present devise belongs.\nThe doctrine of Gy Pres does not obtain in North Carolina, (Bridgers v. Pleasants,supra), and would have no application to the case before us, if it did, and therefore needs no discussion. That doctrine was simply tbat if a-trust failed for any reason tbe Court would apply the fund to some other charity, as similar as possible \u2014 to \u201csomthing else as good.\u201d Nor does the validity of charitable devises depend upon whether the Statute, 43 Eliz., Ch. 4, \u201cCharitable Uses,\u201d is or is not in force in this State. The opinion to that effect has been thoroughly exploded, says the United States Supreme Court in Ould v. Washington, sufra, and further says, citing 2 Perry on Trusts, Section 687, \u201cA charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well being of social man.\u201d\nTo sum up:\n1. This is a charitable use.\n2. Neither the doctrine of Cy Tres nor 43 Eliz., 4, in anywise affects the validity of a devise for such purpose in this country.\n3. A latent ambiguity as to either cestui que trust or trustee is explainable.\n4. The latent ambiguity here being as to the trustee, if not explained, the trust could not have failed, but a new trustee would be appointed.\n5. If the object of the trust xere indefinite, it would be void; otherwise, where as in this case, it is definite and the selection of the individuals to enjoy its benefit is left to trustees.\nAfter a careful review of the elaborate argument on both sides, which has been of great assistance to the Court in drafting this opinion, the judgment below is affirmed.\nAffirmed.", "type": "majority", "author": "ClabK, J." } ], "attorneys": [ "A. H. Eller and Holton & Alexander, for appellant.", "Watson, Buxton & Watson; Jones & Patterson} and W. B. Whitson, for appellees." ], "corrections": "", "head_matter": "EDWARD W. KEITH, Administrator c. t. a. of E. T. Clemmons, v. MARY P. SCALES, et als.\n(Decided April 18, 1899).\nWills \u2014 Charitable Uses \u2014 Trusts\u2014Latent Ambiguity \u2014 The Code, Sections 2342 to 2345.\n1. A latent ambiguity as to the cestui que trust or as to the trustee may be explained by evidence. If the evidence fails to identify the cestui que trust, the trust fails \u2014 but the Courts will not allow a trust to fail for want of a trustee, and if necessary, will supply one.\n2. Devises for charitable uses to institutions to be established, if sufficiently definite, have always been upheld; and if necessary, the courts would hold the fund until incorporation could be effected, or would appoint substituted trustees. The whole matter of enforcing and controlling private charities is regulated by Sections 2342 to 2345 of The Code. The Courts take special care to enforce them.\n3. A charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well being of social man. Neither the doctrine of ey pres nor 43 Eliz., ch. 4, in anywise affects the validity of a devise for such' purpose in this country.\nThis was a civil actioN brought by tbe plaintiff as administrator with the will annexed of E. T. Clemmons, for construction of said will and advice of the Oourt thereupon instituted in BuNCOMbe Superior Court and removed by order of the Court, all parties consenting, to Eoksyth Superior Court,, and heard at February Term, 1899, before Allen, J., upon the will and facts agreed as set out in the record.\nThe question being whether the will of E. T. Clemmons is valid, what property, if any, passed by said will, and what, person or persons or corporations as trustees take, if any, or what persons or persons, if any, take as individuals; or whether the property real and personal, other than specific legacies, and the amount due the widow under the law, descended to the heirs at law and distributees. And upon the hearing the Court rendered the judgment set out in the record, to which judgment the defendants, John II. Hanes, L. 0. Hanes, W. P. Hanes, L. J. Bights, L. M. Orosland, H. E. Mclver, Mary P. Scales, Sarah J. Dalton, S. E. Anderson, John H. Anderson, Mittie W. Lindsay, Vivian Mclver, Emma B. Bryan, Maggie E. Mclver, B. E. Crosland, excepted as follows:\nThe defendants last above named except to the findings and rulings of the Court:\n1st. That the Court erred in finding as a fact that the testator, E. T. Clemmons, intended to bequeath and devise his property, and that ha did bequeath and devise his property to the Board of Provincial Elders of the Southern Province of the Moravian Church as trustee, for the purposes expressed in said will, and was unwarranted in this finding from the will and upon the facts agreed.\n2nd. That the Court erred in adjudicating that the said will is valid and binding in law, in all respects, and in adjudging and directing the administrator with will annexed to account with and pay over to the said Board of Provincial Elders of the Southern Province of the Moravian Church, as \u25a0such trustee, all funds that have come or may come into his hands as such administrator, and in adjudging that the receipts for such shall be valid vouchers in his hands for such payments, and in adjudging that the said Board of Provincial Elders as such trustee is now the owner of and entitled to immediate possession of all the real estate of which the said E. T. Clemmons died seized, subject to the dower right of the widow.\n3rd. Tbat tbe Court erred iu not finding and bolding tbat tbe so -called Moravian Cbnrcb bold no power to take and bold said property in trust, or to appoint trustees for tbe purposes mentioned in tbe will.\n4tb. Tbat tbe Court erred in not bolding tbat tbe Moravian Cbnrcb of Salem, N. C., bad no corporate existence.\n5tb. Tbat tbe Court erred in not bolding tbat tbe devise for cbnrcb and school at Clemmonsville was void: 1st, Tbat tbe same is attempted to be given to a cbnrcb and scbool not in existence. 2nd, Tbat a cbnrcb and scbool bouse is directed to be built at a cost not exceeding ten thousand dollars, thereby giving a discretion, without a person or corporation being named, capable of exercising tbe discretion. 3rd, Tbat 100 acres of land is directed to be bought and allotted one acre each to parties incapable of being designated or capable of enforcing tbe trust. 4th, Tbat tbe said will attempts to provide for the education of children of these indefinite persons, to whom tbe one acre of land is given. 5th, Tbat tbe paper writing attempts to provide for a bouse for a Moravian minister .and teacher, and is too indefinite in determining who tbat minister or teacher shall be. 6th. Tbat tbe provision recitj ing bis intention tbat bis estate shall be used and managed by tbe Moravian Church, of Salem, to maintain a church or scbool at or near Clemmonsville, N.\" 0., is too general and indefinite, and fails to point out tbe beneficiaries, or tbe means by which they may be ascertained. 7th, That tbe said Moravian Church is not an incorporation, and is incapable of bolding a trust. 8th, Tbat there are no beneficiaries mentioned in said paper writing sufficiently identified tbat can enforce tbe trust. 9th, Tbat tbe power given to tbe trustees to abolish the church and scbool makes tbe devise to them void. 10th, Tbat tbe estate attempted to be given is a base or qualified fee, and is therefore void. 11th, Tbat there are no words of conveyance conveying the estate to any one to hold in trust, and it therfore descends to the heirs and distributees. 12th, That the will does not contemplate a charity, for it provides that only the children of each member having one acre of the land be sent to school free of charge \u201cas long as any part of my estate remains to pay the expenses of said church first, then the school,\u201d and is not in contemplation of section 2342 of The Code.\nAnd appealed to the Supreme Court.\nState of North CAROLINA \u2014 Forsyth Cotthty.\nIn Superior Court, Febrenary Term, 1899.\nE. W. Keith, Administrator, with the will annexed, of E. T.\n\u2018 Clemmons, vs.\ntf.w.y P. Scales, and others.\nJudgment.\nThis cause coming on to be heard and being heard upon the record and upon the will of E. T. Clemmons, and upon the facts agreed, as appears from Exhibit \u201cA\u201d attached, a jury trial having been waived by all parties without prejudice, the Court from said facts agreed and from said will, finds the following facts, and reaches the following conclusions of law:\nIt finds as a fact, that the testator, E. T. Clemmons, intended to bequeath and devise his property, real and personal, subject to the payment of his debts, and the bequests to his wife, and to other legatees mentioned by name in said will, to the defendant, \u201cBoard of Provincial Elders of the Southern Province of the Moravian Church, or Unitas Fratrum,\u201d officially located at Salem, Forsyth County, N. C., a corporation under the laws of North Carolina, as a trustee for the purpose expressed in said will, and further that he did bequeath and devise said property of said trustee to the ends and for the purposes set forth in said will. Thereupon it is considered and adjudged, that said will is valid, and binding in law in all respects.\n\"Wherefore it is adjudged that said plaintiff, Administrator, with will annexed, be and he is hereby authorized, and directed, after the payment of the small bequests provided for in said will, and after the payment by him to the widow, Hattie B. Clemmons, of her distributive share (the record showing that she is dissented from the will), and after an allowance for commissions and all legal expenditures, to account with and to pay over to the said defendant, \u201cBoard of Provincial Elders of the Southern Province of the Moravian Church, or Unitas Fratrum \u201d as such trustee, all funds that have come or may come into his hands, as such administrator, and that the receipt of said corporation shall be a valid voucher in the hands of said administrator, for all such payments as may be made. And it is further adjudged that the said \u201cBoard of Provincial Elders of the Southern Province of Moravian Church, or Unitas Fmtrus \u201d as such trustee, is now the owner, and entitled to the immediate possession of all the real estate of which said E. T. Clemmons died seized, subject to the dower rights of the widow, Hattie B. Clemmons.\nO. H. AlleN,\nJudge Presiding.\nExhibit \u201cA.\u201d\nState oe Noeth CaboliNA, BuNoombe Couhty.\nIn Superior Court, July Special Term, 1898.\nE. W. Keith, Administrator of E. T. Clemmons\nvs.\nMaey P. Scales and others.\nFads Agreed.\n1. That tbe \u201cBoard of Provincial Elders of the Southern Province of the Moravian Church, or Umitas Fratrum \u2019\u2019 was incorporated by the General Assembly of North Carolina, under the Private Laws, Chapter Thirteen (13), laws of 1876-1, to which reference is made.\n2. That the home congregation of Salem is incorporated under the corporate name of. \u201cCongregation of United Brethren of Salem\u201d and its vicinity, by Chapter 47, Private Laws of the General Assembly of North Carolina, of 1873-4, page 346, to which reference is made.\n3. The Moravian Congregation in North Carolina constitute the Southern Province of the Moravian Church in North Carolina.\nDelegates from these congregations meet from time to time in Synod, which legislates for this Province, and elects an executive board, called the \u201cBoard of Provincial Elders of the Southern Province of the Moravian Church or Unitas Fra-trumF\nThis Board was incorporated by the General Assembly of North Carolina, Chapter 13, Private Acts, 1876-7, and the members then in office and their successors have exercised and performed the functions and powers conferred by said Act, continuously since that date; it bolds, invests and administers any and all funds belonging to this Province; it bolds title to tbe remnant of tbe 1,000,000 acres of land, originally granted by Lord Granville, and commonly known as Moravian Land; it exercises also tbe executive authority in spiritual affairs, including tbe appointment and supervision of all ministers of tbe Moravian Oburcb in tbe Province, including tbe Home Oburcb in Salem \u2014 it bas aided in tbe erection of sundry new Oburcbes and Obapels, to wbicb it bolds tbe legal title, and bas organized new congregations and supplied tbem with ministers in Eorsytb and other counties; it also bas tbe charge and management of Salem Female Academy, and would have that of any other provincial school; it has an office and all its records in Salem, N. O., and is officially located there with Rt. Rev. Edward Rondthaler as President, and Jas. T. Lineback Secretary and Treasurer. Bishop Rond-thaler is at tbe same time pastor of Salem Congregation.\n4. Tbe congregation of United Brethren of Salem and its vicinity \u2014 chartered by Acts of Assembly as referred to\u2014 embraces and owns the original Moravian Oburcb in Salem, and Obapels erected in Salem-Winston and vicinity. The direction of Spiritual affairs of this congregation is vested in a Board of Elders, and tbe direction of its temporal affairs is vested in a Board of Trustees, both elected by the adult male members of tbe congregation. It neither owns nor exercises any control over any property or Church outside of its immediate vicinity, and never has. It bas four affiliated Obapels in tbe town and its suburbs, but the worshipers all belong to the one congregation. This congregation is known as the Salem Moravian Church in tbe community. Tbe home church of Salem and also the four affiliated Obapels receive their ministers and appointment from tbe Board of Provincial Elders of tbe Southern Province of tbe Moravian Oburcb or Unitas Fratrum, and the Salem Cbur'ch has no control over the appointment of ministers for any other churches in the Province, nor of any Provincial Schools nor of the spiritual affairs of any other church nor congregation in the Province. The lands held by the Board of Provincial Elders in the community is commonly known as Moravian Land, and the funds loaned are commonly known as Moravian Church money, regardless of the fact as to which corporation such funds belong.\n5. The testator was at the time of his death, and had been for a period of about fifty years, a member of the Moravian Church at Salem.\n6. There is no Moravian church building or original Moravian congregation or Moravian school building at or in the immediate vicinity of Clemmonsville.\nUpon the will and the foregoing facts the defendant \u201cBoard of Provincial Elders in the Southern Province of the Moravian Church, or Unitas Fratrum \u2019\u2019 prays that the property embraced in the will be turned over to it, and the defendants, ^L. J. Bights, and others, pray that the property be turned over to them, as heirs at law and distributees of E. T. Clemmons.\n7. That Clemmonsville is located eleven miles from Salem in Forsyth County.\n8. That the value of the estate is estimated from $75,000 to $100,000, consisting of both real and personal estate.\n(Jury trial waived without prejudice).\nThe foregoing facts are submitted to the Court to say from them, whether the will of E. T. Clemmons is valid, what property, if any passes by said will, and what person or persons or corporations as trustee take, if any, and what person or persons, if any, take as individuals with the right in any party of exception and appeal from any finding or conclusion of law or fact made by bis Honor.\nAYatson, BuxtoN & Watson, JONES & PATTERSON,\nAttorneys for Board of Provincial Elders. PIolton & Alexander,\nTucker & Murphy,\nGlenn & Manley,\nAttorneys for heirs at lato and distributees of E. T. Clemmons.\nW. R. Whitson,\nAttorney for Administrator and Petitioner.\nA. H. Eller,\nAttorney for Heirs and Distributees.\nI, E. T. Clemmons, of Asbeville, North Carolina, being of sound mind, but knowing tbe uncertainty of death, deem it proper to make a will, and accordingly do make this my last will and testament. It is my will that all my just debts be first paid and discharged by my administrator out of my estate as soon as conveniently. Then I desire my wife, Hattie, be provided for that she may have a comfortable living from my real estate. Prefer a guardian for her, she, guardian and Court to agree on property for her for life, and at her death to be used as hereafter requested. I desire, should she and guardian think any property best to sell, they may make sale, such as our Court consider legal, and turn the proceeds over to Church as hereafter named. After this I will and bequeath to my beloved aunt, Mary P. Scales, of Greensboro, if living, $200.00. After this I will and bequeath to Lewis O. Hanes, of Lexington, $100.00. Also to Addie AYheeler, of AYinston, wife of W. H. Wheeler, $100.00. After the above then I will and bequeath all the rest of my estate including mv wife\u2019s, at her death, for a Moravian Church and School at my native town, Clemmonsville, Forsyth County, N. C. I desire the Moravian Church, of Salem, appoint proper persons to purchase one hundred acres of land in or near Clemmonsville. To first erect a substantial church of brick, not to exceed in cost $10,000, a school building not to exceed in cost $10,000, and a comfortable house for the entire use of a Moravian minister and teacher. I desire each member of said church have a lot of one acre of this land purchased at $1.00 each, as far as the land goes, and his children to be sent to school free of charge as long as any part of my estate remains to pay the expenses of said church first, then school. To be managed and controlled by the church of Salem, N. C. It is my intention that all my estate except as before stated, be used and managed by the Moravian Church, of Salem, to maintain a church and school at or near Clemmonsville, N. C., and when, if ever, abolished then to go to my nearest living relatives. In witness whereof I hereto put my hand and seal, and publish this to be my last will and testament.\nE. T. ClemmoNs, (Seal).\nMarch 10th, 1895.\nA. H. Eller and Holton & Alexander, for appellant.\nWatson, Buxton & Watson; Jones & Patterson} and W. B. Whitson, for appellees." }, "file_name": "0497-01", "first_page_order": 525, "last_page_order": 545 }