Trustees of Newton Academy v. Bank of Asheville

Davis, J. The endless variety of forms in which the last wills of testators find expression, especially when efforts are made to provide for future and often remote contingencies, will render the construction of wills an ever recurring source of difficulty to Courts. In the case before us we do not understand that any question was made as to the validity of the gift of $1,000 to the “ trustees of Newton Academy,” nor is there any question as to the relation that the testator’s “son James'” sustained to the gift, but the difficulty grows out of that part of the clause which seeks to make the gift perpetual to “ his heirs forever,” and to secure the payment of the interest by a charge upon that portion of the real estate mentioned in the clause. The trust was a valid one, as is settled by many authorities, and during the life-time of James Patton — the son — the provision in relation thereto could have been enforced against him, and after his death, undoubtedly, the “ trustees of Newton Academy” might have had the $1,000 secured in such way and under such orders and decrees of the Court, in respect thereto, as would have given effect to the testator’s intention, and secured the corpus of the gift and #a.e accru *488 ing interest thereon, for the purpose named in the will. Not only so, but an action might have been commenced “ at the suggestion of two respectable citizens,” and the Court might have made such orders and decrees as were best calculated to give effect to the trust. Section 2342 of The Code (Rev. Code, ch. 18; Rev. Stats., ch. 18; 43 Eliz., ch. 4) enacts that, “when real or personal property may have been granted by deed, will or otherwise, for such charitable purposes as are allowed by law, it shall be the duty of those to whom are confided the management of the property and the execution of the trust, to deliver in writing a full and particular account thereof to the Clerk of the Superior Court of the county where the charity is to take effect, on the first Monday in February in each year, to be filed among the records of the Court, and spread upon the record of accounts,” and the section following provides the manner in which a compliance with this duty may be enforced, and while the trust itself is not void, because the objects of it are sufficiently certain (Griffin v. Graham, 1 Hawks, 96; State v. McGowan, 2 Ired. Eq, 9; Miller v. Atkinson, 63 N. C., 537, and cases there cited), and while the Courts would, upon proper application and within a reasonable time, make necessary orders and decrees to give it effect and secure the fund, and this from time to time, and as often as necessity might require; yet, being a gift of money, in the very nature of things, the method of giving perpetual effect to it, namely, that it should remain in the hands of his “son James and his heirs forever,” attempted to be provided by the testator, must be inoperative, certainly after the death of James. The gift was personal property, held in trust; it did not descend to the heirs of James. He was solvent at the time of his death, and his estate did not become insolvent till the end of the war. He died in 1861. No effort was made to secure the principal sum of $1,000; that was lost, and lost, as appears, by the laches of those whose *489 duty it was, at least, to receive the interest, and to see that the principal was properly secured upon the death of James. In the view we take of it, it is immaterial to consider whether the principal sum of $1,000 or only the interest constituted a charge upon the land. After the death of James the $1,000 and accrued interest were primarily charges upon his personal estate. Upon the loss of the principal the interest of course ceased. The defendants, and those under whom they claim, were purchasers — not in any sense trustees — and though,after the death of James Patton, it may be that upon a failure of personal assets, they could have been held liable as purchasers, affected by notice of the charge contained in the will of James Patton, .through which they had to trace their title; yet, their possession being “.open, notorious and uninterrupted,” the plaintiffs were required “ to act as upon an asserted adverse title,” and having failed to bring the action in time the bar of statute applies. Wood on Limitations, §§ 213 and 200, and note. Lapse of time may be a bar even against cestui que trusts, when by adverse acts the relation of trustee is denied. Perry on Trusts, § 745. “It is the province of a Court of Equity,” says Henderson, J., in Thompson v. Blair, 3 Murph., 583, speaking of the statute of limitations, “ to infuse its spirit into their decisions as much as can be done without violating its fundamental maxims.” The case before us is unlike that of Foscue v. Foscue, 2 Ired. Eq., 321, and many similar cases in which persons deriving title from trustees with fraudulent knowledge of dereliction of duty on the part of the trustees, are not allowed to set up the legal title and possession thereunder as a bar to defeat the person really entitled. See Taylor v. Dawson, 3 Jones Eq., 86; Blake v. Lane, 5 Jones Eq., 412; Herndon v. Pratt, 6 Jones Eq., 327. Here there was no pretence of fraudulent.purpose, either on the part of vendor or of the vendees. Affirmed.