McKay v. Trustees of the General Assembly of the Presbyterian Church in the United States

Seawell, J. We question whether, within the limitations imposed upon us, we may, in the present case, discharge the trustees appointed in the will and turn the trust fund over to the respondent for administration by its own agency without, in a measure, denying to the testator the jus disponendi or defeating the testamentary intention without just reason. *312 The respondent claims custody of the trust fund as a matter of right, contending that the will directly conveys to it the legal title in trust for the purposes named; and that it may now assert that right against the petitioners, local trustees; and cite cases which recognize the distinction between a trustee to hold the title of the trust res and a trustee to manage and control: I Bogart, Trusts and Trustees, Sec. 122; City of Boston v. Dolan, 298 Mass., 346, 10 N. E. (2d), 275; Worcester City Missionary Soc. v. Memorial Church, 186 Mass., 531, 72 N. E., 72; Adams v. Plunkett, 274 Mass., 453, 175 N. E., 60; Ware v. City of Fitchburg, 200 Mass., 61, 85 N. E., 951. In reply the appellants call our attention to Ex Parte Wilds, 182 N. C., 705, 110 S. E., 57, as expressing a contrary view as to the legal title. In the Wilds case, a part of the lands included in the trust created in Item 23 was sold on petition of the local trustees and the purchaser refused' to accept the commissioner’s deed on the ground that the latter could not convey a good title because the petitioning trustee had none. The Court thought otherwise. It is said in the opinion that the specific objection made was that title could not vest in the petitioning trustees until the termination of the life estate of McRary. But we cannot assume that the vigilance of the Court would permit it to hold that the title presently vested or would ever vest in the petitioners unless such was the effect of the will; and the construction of the will in this respect was directly involved in the issue of good title. While the present respondent was not a party to that action and the Court acted without reference to the doctrinal questions now raised, we are inclined to hold that the construction of the will under these circumstances is binding upon us in the present controversy as an expression in rem from which we may not consistently depart. If the respondent could now make good on its theory respecting the title, it would seem to have uncovered a situation of which it might have taken advantage long ago, and we see no exigency which could moot the question now, or disturb a modus vivendi admittedly legal, and certainly blueprinted in the will. The identity of trustees, for this or that purpose, is not a question of fact as to which we are bound by the finding of the trial court, but a question of law involving the proper construction of the will; and the intent of the testatrix to give the custody and administration of the property and funds to the petitioning trustees admits of little doubt. In considering what might be the dominant purpose of the will it is clear that the testatrix intended to provide a home and care for the widows of Presbyterian Ministers; but the “dominant purpose” cannot always be separated from the complex of which it is a part; and we feel that under the circumstances of this case Mrs. Ford intended that her beneficences might have local supervision by the trustees designated by *313 ber will; tbat the memorials wbicb they constituted as far as might be possible should also have a site amongst the churches with which she was affiliated and perhaps amongst the people that she knew. It is contended now that even if the home might be constructed upon the property which is left to them, that the funds set up would be entirely inadequate to maintain it; but it is further suggested that it is planned to have a similar home instituted and maintained in the City of Greensboro, in aid of which the fund donated by the testatrix might be more consistently used. However this may be, we are of the opinion that the exigencies upon which the equitable intervention of the Court is urged may be exercised are presently not of a nature which would justify the relief demanded or to justify the Court in discharging the petitioners as trustees and of ordering the custody and administration of the fund to the respondent and its agencies as demanded. That portion of the judgment authorizing and directing the sale of the property described in the petition is affirmed. And that portion ordering the trust funds into the custody and administration of respondent is reversed. The cause is remanded to the Superior Court of Davidson County for judgment in accordance with this opinion. Modified and affirmed.