Humphrey v. Board of Trustees of I. O. O. F. Home

Clarkson, J. It is contended by plaintiff that the entire trust is void and that plaintiff, the residuary legatee, is entitled to the fund. We cannot so hold. Plaintiff contends that the purpose of the trust cannot be carried out “for the education through high school of one of the white girl inmates of said home,” etc., on account of the provisions of the statute. The pertinent statutes are as follows: “Children living in and cared for and supported by any institution established or incorporated for the purpose of rearing and caring for orphan children shall be considered legal residents of said district in which the institution is located, and a part or all of said orphan children shall be permitted to attend the public school or schools of said district, and the extra expenses of teaching said children for six months in the public school or schools of said district may be borne as follows: Three-fourths of the extra expense for a term of six months of every year, as a result of the attendance of said children, may be paid out of the State equalizing fund and one-fourth out of the county fund, unless otherwise provided. Provided further, that the provisions of this section shall be permissive only, and shall not be mandatory.” (C. S., 5604) (1919 chap. 301, sec. 1; 1927 chap. 163, sec. 1). N. C. Code, 1931 (Michie), sec. 5446. By Public Laws 1927, chap. 163, the provision for payment from an “equalizing-fund” replaced a provision for payment from the State “public school fund.” The last sentence making the section permissive and not mandatory was also added at this time. The will of Bertral Conrad Humphrey shows that it was her purpose to provide for the education of one of the white girl inmates of the Odd Fellows’ Orphans’ Home at Goldsboro, N. O., and this intent is expressed in terms sufficiently certain that it can be sustained as a charitable trust. Candler v. Board of Education, 181 N. C., 444. The plaintiff does not question the clear meaning of the will, in this respect, but only maintains that it cannot be carried out. He bases his attack *204 entirely upon tbe statutes above .mentioned., which provide: that three-fourths of the extra expense of teaching orphan children be paid out of the State equalization fund and one-fourth by the county, under which the board of education of Wayne County charges no tuition for children of the Odd Fellows’ Home for a six months’ term. "When the will of this good woman was executed, 20 May, 1926, the above statute provided that “expense of teaching said children for six months in the public school or schools of said district shall he borne as follows,” etc. Under chapter 163, Public Laws 1927, this has been changed “may be borne as followsFurther, the following is in said act of 1927 “Provided further, that the provisions of this section shall be permissive only, and shall not be mandatory(Italics ours.) See N. C. Code (Michie), sec. 4038(a), 4035(c); Whitsett v. Clapp, 200 N. C., 647. The contention of plaintiff is too narrow, the intention of the testatrix should be liberally construed to effectuate the purpose. The purpose is clear “I direct that they use the dividends and income only therefrom for the education, through high school of one of the white girl inmates of said home, and such girl to be selected by them from time to time as funds are available for such purpose. . . . All the rest, residue and remainder of my property, real and personal, which I may own or be in any way entitled to at the time of my death, I give and bequeath to my husband, Paul C. Humphrey.” The fact that another agency may be doing in part what defendant trustees are directed to do, does not relieve the trustees. The duty is placed on the trustees of defendant, not on the State of North Carolina. The fact that the State is performing this duty does not relieve defendant of a positive direction. It is clearly their duty to select the girl and pay for her tuition for a high school education and her books, etc. Then again, the statute, supra, only provides for six months — now usually the high school term is for nine months. Suppose the State should fail to provide the education under the statute, the duty being permissive? Is it possible that a narrow construction should be so placed on testatrix’s intention, whereby, the special kindly object of her bounty, these girl inmates of the defendant orphanage, would be deprived of a high school education? We cannot in construing the will take such chances. 'As to the other contention of plaintiff — all these matters are largely in the discretion of the trustees. Washington v. Emery, 57 N. C., 32; 57 A. L. R., 1119. The statute provides that it is the duty of defendant trustees to file account with the clerk of the Superior Court. N. C. Code, 1931 (Michie), sec. 4033. If the above section is not complied with, we find in section 4034 the following: “If the preceding section *205 be not complied with, or there is reason to believe that the property has been mismanaged through negligence or fraud, it shall be the duty of the clerk of the Superior Court to give notice thereof to the Attorney-General or solicitor who represents the State in the Superior Court for that county; and it shall be his duty to bring an action in the name of the State against the grantees, executors, or trustees of the charitable fund, calling on them to render a full and minute account of their proceedings in relation to the administration of the fund and the execution of the trust. The Attorney-General or solicitor may also, at the suggestion of two reputable citizens, commence an action as aforesaid; and, in either case, the court may make such order and decree as shall seen! best calculated to enforce the performance of the trust.” The above statute provides a remedy, and if defendants have been derelict in their duty the statute is applicable. The pleading of plaintiff in regard to the violations under the terms of the will it seems that the above statutes are applicable under the facts and circumstances of the case. For the reasons given, the judgment of the court below is Affirmed.