Penick v. Bank of Wadesboro

DeviN, J. By his will Gen. Vm. A. Smith made provision for the establishment of two trust funds, the ultimate beneficiary in both being the Protestant Episcopal Church of the Diocese of North Carolina. In the first the testator devised the sum of $55,000 to the three named banks, as trustees, to constitute a fund to be safely invested and the income to accumulate for 99 years, at the end of which period “it (the fund) and its accumulations” are to be paid to the Protestant Episcopal Diocese of North Carolina. In the second, a fund derived from sale of real and personal property was devised in trust for the benefit of the Diocese of North Carolina, with specific directions as to its use and purposes. These included the erection of a school building at a cost not exceeding $50,000, the remainder of the devise under this trust to be set up as a permanent fund and the income used for the maintenance of the school or schools. Provision was made for the selection of trustees to carry out the purposes expressed. It was alleged in the complaint that in carrying out the provisions of the second trust the trustees selected therefor have erected a building and provided for the operation of an agricultural and training school, with assistance from the National Youth Administration, sale of timber, and use of income from the property devised, but are without sufficient funds to make repairs and purchase necessary machinery and tools for teaching agriculture; that from the income from the fund set up under the second trust it was directed in the will that an annuity for the testator’s widow *690 (now 80 years old) and tbe upkeep of the house must be paid, and that, in order to carry out the expressed purposes of the testator and for the best interest of the ultimate beneficiary, the net income from the trust fund set up in item XXI should be paid over as earned, and that the provision, for accumulation of income for 99 years should be modified as inexpedient, unnecessary and contrary to public policy. The defendants demurred to the complaint, and their demurrer was sustained. By their demurrer the defendants admit the facts alleged, but not the conclusions of law asserted by the pleader. Leonard v. Maxwell, 216 N. C., 89, 3 S. E. (2d), 316. Cases involving the administration of trusts and trust estates are peculiarly within the jurisdiction of courts of equity, and the power of the court, in exceptional cases, to modify the terms of the trust has been generally upheld. But the power of the court should not be used to direct the trustee to depart from the express terms of the trust, except in cases of emergency or to preserve the trust estate. Seigle v. First Nat’l. Co., 338 Mo., 417. The court has power, under certain circumstances, to modify the terms of a trust, but this power should not be exercised to destroy the trust or defeat the purpose of the donor. Cutter v. Trust Co., 213 N. C., 686, 197 S. E., 542. In Trust Co. v. Laws, 217 N. C., 171, 7 S. E. (2d), 470, it was said that a court of equity had power, when necessity or expediency impelled, to close a trust or modify its terms. And in Bond v. Tarboro, 217 N. C., 289, 7 S. E. (2d), 617, it was decided that the power of the court could be exercised to the extent of authorizing the execution of a mortgage on the trust estate when necessary for its preservation. In Reynolds v. Reynolds, 208 N. C., 578, 182 S. E., 341, upon a showing of changed conditions, by the consent of all concerned, and for the purpose of a family settlement, modification of the terms of the trust was authorized. In the instant case, the intent of the testator is clearly expressed that the trust fund set up in item XXI of his will shall be invested and reinvested, both as to the corpus and the increment, and that at the expiration of 99 years the fund and its accumulations shall be paid to' the beneficiary, the Protestant Episcopal Diocese of North Carolina. The trustees are banks, incorporated, and the ultimate beneficiary is a religious body of unlimited duration. The wisdom of extending the duration of the trust for 99 years is not a matter for us to decide. The property was that of the testator, and the law permitted him to dispose of it as he wished. We cannot hold that the disposition under consideration violated any law or contravened any rule restricting the transmission and tenure of property. We cannot undertake to change the disposition he has made of what he owned. It has not been shown wherein public injury would result, or that the terms of the trust are *691 contrary to any principle of public policy or prejudicial to tbe public interest. Woodruff v. Marsh, 63 Conn., 125, 26 Atl., 846. Speculations as to wbat conditions may prevail at tbe termination of tbe period, or tbe possible consequences of attempting to administer a fund for so long a time, are not sufficient to defeat tbe manifest intent of tbe donor. Charitable trusts are not subject to tbe rule against perpetuities. Public Laws 1925, cb. 264; Williams v. Williams, 215 N. C., 739, 3 S. E. (2d), 334. Nor are tbe terms of tbe trust indefinite, either as to tbe purpose, tbe method of administration, or tbe beneficiary. Woodcock v. Trust Co., 214 N. C., 224, 199 S. E., 20. It was said in tbe recent case of Hills v. Travelers Bank & Trust Co., 125 Conn., 640, “Tbe function of tbe court with reference to trusts is not to remake tbe trust instrument, reduce or increase' tbe size of tbe gifts made therein, or accord tbe beneficiary more advantage than tbe donor directed that be should enjoy, but rather to ascertain wbat -the donor directed that tbe donee should receive and to secure to him tbe enjoyment of that interest only.” And in Paul’s Church v. Attorney-General, 164 Mass., 204, it was said that “to authorize equitable interference with tbe accumulation directed by tbe testator, tbe accumulation should be unreasonable, unnecessary and to tbe public injury.” In 2 Bogert on. Trusts and Trustees, sec. 353, will be found collected a number of cases upholding provisions in charitable trusts for accumulation of income over long periods of time. Cited among them is tbe ease of Boston v. Doyle, 184 Mass., 373, relating to tbe will of Benjamin Franklin, wherein a fund was established to be used for certain charitable purposes at tbe expiration of one hundred years. In Frazier v. Merchants National Bank of Salem, 296 Mass., 298, 5 N. E. (2d), 550, tbe provisions in a will setting up a trust fund of $117,000 and requiring that tbe income therefrom be permitted to accumulate until tbe principal and interest reached tbe sum of $1,000,000 and then to be held as a permanent trust fund for a hospital, was upheld as not contrary to public policy. It will be noted in tbe case at bar that tbe accumulation of income is part of tbe trust. To divert it to other purposes, even if in aid of another trust set up by tbe testator, would to that extent defeat bis intention. It seems that one fund was set up for tbe present generation; tbe other for those who should come after. Tbe testator’s purpose to postpone enjoyment of a portion of bis bounty is in conflict with no principle of public policy, nor is it so unreasonable as to justify interference by a court of equity. Tbe action of tbe plaintiffs, in moving to have tbe terms of tbe trust modified to tbe extent of permitting tbe use of tbe income of tbe fund, is prompted by tbe commendable desire to supply a present need in tbe *692 administration of another worthy charity, but we are constrained to follow the manifest intent of the testator and to hold that the terms of the will shall prevail. The judgment of the court below in sustaining the demurrer is Affirmed.