McLeod v. . Jones

Hoke, J., after stating the ease: Under our decisions, the facts in evidence present an instance of a latent ambiguity, requiring and permitting the reception of extrinsic evidence; not to alter or affect the construction, but to apply the description to the intended donee, as designated by the language appearing in the will. Keith v. Scales, 124 N. C., 597; Tilley, v. Ellis, 119 N. C., 235; Simmons v. Allison, 118 N. C., 765; Institute v. Norwood, 45 N. C., 66. And in such case and for such purpose, authority here and elsewhere is to the effect that the surrounding circumstances as well as the declarations of the testator are relevant to the inquiry, and especially where, as in this case, they were made at the time the will was executed. In re Herring's will, 152 N. C., 258; Holt v. Holt, 114 N. C., 241; Morgan v. Burrows, 45 Wis., 211; Griscom v. Evans, 40 N. J. L., 402; Coulan v. Doul, 153 U. S., 216; Covert v. Sebern, 73 Iowa, 564; Vernor v. Henry, 43 Pa. (3 Wells), 585; Chapell v. Missionary Society, 3 Ind. App., 356; Allen v. Allen, 40 Eng. Common Law, 92; Chamberlain’s Best on Evidence, 232; 1 Williams on Executors, 424; Jones on Evidence (2 Ed.), sec. 479; Gardner on Wills, pp. 387-391-395. It appeared, in evidence that “Foreign Missions” was a well-recognized and beneficent charity, established and administered by the Missionary Baptist Church of the South through *77 the “Foreign Mission Board of the Southern Baptist Convention,” an agency incorporated for the purpose, and that “Home Missions” was a like charity, administered by like agency, entitled “The Home Mission Board of the Southern Baptist Convention”; that collections and donations for these charities had and made by the local churches were remitted to Mr. Walters Durham, the Treasurer of the State Baptist Convention, at Raleigh, and he, in turn, remitted the Home Mission money to the Treasurer of the Home Mission Board at Atlanta, Ga., and the Foreign Mission money was sent to the Treasurer of the Foreign Mission Board at Richmond, Va.; that the testator attended and was for a long time a member of the Baptist Church at Bethlehem, Moore County, N. C.; taught in the Sunday-school and made gifts and subscriptions to its church work, including foreign missions, home missions, State missions, orphanage, and other causes, the witness stating “that this church at Bethlehem was the Missionary Baptist Church, and that he knew of no other Baptist church among the white people in that section of the State.” It was made to appear, further, that the Missionary Baptists of the State maintained an orphanage at Thomasville, N. C., incorporated under the style and title of “The Trustees of the Thomasville Baptist Orphanage,” the only orphanage of any kind maintained at Thomasville, and, on consideration of the facts in evidence, the habits and customs of the testator, his church affiliation, and his direct declarations referred to, there is no room for doubt as to the testator’s mind and will and that the intended donees have been correctly ascertained and declared by the verdict. We were referred by counsel to several decisions in this State and elsewhere, as in Bridgers v. Pleasants, 39 N. C., 26; Methodist Church v. Baker, 91 Md., 539, to the effect that when a testator has evinced an evident desire to create or establish a trust, and the will is so indefinite in its scheme or as to the beneficiaries who are contemplated that a court is unable, either from the terms of the will or by aid of extrinsic evidence, to ascertain or enforce the mind and purpose of the testator, such a provision, so expressed, must fail. These and like cases *78 are referred to by the present Chief Justice in the well-considered opinion of Keith, v. Scales, as follows: “There are numerous cases 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, and this is too indefinite and the devise is void because no one can appoint another to make a ■will for him.” In the present case there is no trust declared or contemplated (St. James v. Bagley, 138 N. C., 384), but it is a direct bequest in absolute ownership to a lawful, beneficent, and well-ascertained charity, established and administered by one of the great religious denominations of the country, and, as stated, the facts in evidence leave no doubt as to the intended beneficiaries of the testator’s bounty. The case is controlled by the authorities cited, and Gilmer v. Stone, 120 U. S., 586, is also a direct authority in approval of the decision. There is no error, and the judgment is affirmed. No error.