Opinion
(June Term, 1842.)
A devised certain lands to his wife for life, and after her death to B. S. for life, and "after the death of B. S. to the poor of the county of Beaufort, on the express following conditions and no other, that is to say, that they shall never be sold, but be held as a stock belonging to said poor, subject to be rented, cultivated or leased, as the wardens or managers of the poor may deem most advisable, but never to be let for a longer term of time than seven years, and no more timber to be used than is necessary for the use of farming," etc.: Held, (1) that this devise did not vest the legal title to the lands in the wardens of the poor, either as individuals or in their corporate capacity, and that therefore they had no right to recover them at law; (2) that a devise to "the poor of a county" is a devise to "such a charitable purpose as was allowed by law" before the passage of our statute concerning charities (Rev. Stat. ch. 18), and is therefore embraced within the provisions of that statute, and that it is sufficiently definite to authorize a court of equity to enforce it; (3) that the perpetuities, forbidden by our Constitution, are estates settled for private uses so as to be unalienable, and do not include public charities.
THIS was an appeal from the decree of his Honor, Settle, J., at Fall Term, 1841, of BEAUFORT Court of Equity, sustaining the defendant's demurrer and dismissing the plaintiff's bill.
The bill, which was filed at Fall Term, 1839, was at the instance of the Solicitor for the State in the Second Judicial District, by and at the relation of the wardens of the poor of Beaufort County, against William B. H. Gerard. The bill charged that Charles Gerard, late of Edgecombe County and State of North Carolina, died seized and possessed of certain tracts of land lying in the county of Beaufort, and by his last will and testament, duly executed and admitted to probate in (211) the Court of Pleas and Quarter Sessions of the said county of Edgecombe, at November Term, 1797, devised and bequeathed unto his mother, Dinah Simon, to have and to hold for the term of her natural life, the said tracts of land which were particularly set forth in the said last will and testament and in the deeds and conveyances there referred to, copies of all which were appended to the said bill and prayed to be taken as part thereof; that by the said last will and testament he further devised the said lands, after the death of the said Dinah, unto Benjamin Simon for the term of his natural life, and after the death of the said Benjamin, "to the poor of the county of Beaufort on the express following conditions and no other, that is to say, that they shall never be sold, but be held as a stock belonging to the said poor, subject to be rented, cultivated or leased, as the wardens or managers of the poor may deem most advisable, but never to be let for a longer term of time than seven years, and no more timber to be cut than is necessary for the use of farming, etc."; that after the death of the said Charles Gerard, which took place some time in March, 1797, the said Dinah Simons remained in possession of the said lands until the period of her death, some time in 1818; that the said Benjamin died in the lifetime of the said Dinah; that in 1819 the wardens of the poor took possession of the said lands and rented them to divers persons for the period of seven years for the use of the poor of the said county, according to the intent and meaning of the said will, and that their lessees entered and took possession of the said demised premises; that shortly after the expiration of these several leases the defendant, William B. H. Gerard, entered and took possession of the said lands, claiming to be the heir at law of the said Charles Gerard and thereby lawfully entitled to the same, and has since continued and is now in possession of the same; that the relators hoped to be allowed by him to manage and lease out the said lands to the use of the poor, according to the intent of the will of the testator, and frequently requested of him that he would allow them so to do, but that he had absolutely refused to do so or to give any account of the rents and profits of the same, so that the charitable (212) intentions of the testator were likely to be wholly frustrated. The bill then prayed that the said charity might be established and the defendant be declared a trustee for the benefit of the poor of the said county of Beaufort, of the said lands, subject to the control and management of the said wardens, according to the intentions of the testator as before set forth, and that he might render an account of the rents and profits of the said lands for the time he has had possession thereof, under the direction of the court, and might pay over the sum which might be found due to the said wardens to be applied according to the said will, and for such other and further relief, etc.
To this bill the defendant put in a general demurrer, and the plaintiff joined in demurrer. Upon argument the demurrer was sustained and the bill dismissed, from which decree the plaintiff appealed to the Supreme Court.
J. H. Bryan in support of the demurrer.
William B. Rodman for plaintiff.
We are of opinion that none of the grounds taken in support of the demurrer in this case can be sustained.
It has been insisted that if the lands which are the subject of this controversy have been devised to the wardens, either as individuals designated by that description or as a corporate body in our law, the case is one purely legal and furnishes no matter for the cognizance of a court of equity; and, on the other hand, if the devise be one to the poor of the county, it is utterly void because of its indefiniteness. We hold it to be perfectly clear that the devise was not made to individuals characterized (218) by the description of wardens of the poor, nor can we construe the devise as one made to the wardens in their corporate or quasi-corporate capacity. To give the devise the first of these constructions would be not only to depart from the language of the will, but to violate the obvious intent of the testator that the subject-matter of the devise "should be under the direction of the persons who should from time to time be the trustees or managers of the poor." Nor will the language of the will warrant the exposition that the lands are given to the wardens in their political capacity. As has been well remarked, in the argument in behalf of the information, the gift is not to the wardens of the poor, but "to the poor of the county of Beaufort," and it is of lands of which the testator declares "that they shall never be sold, but be held as a stock belonging to the poor of the county of Beaufort" and "subject to be rented, cultivated or leased, as the wardens or managers of the poor may deem most advisable." In his contemplation the gift is to the poor — the property is to be the property of the poor subject to a power in "the wardens or managers" to make the property beneficent to the poor. Besides, had the devise been directly made to the wardens in their political capacity it must have failed, because in that capacity they had not the ability to take by devise. There is no ground, therefore, for the objection that here was a plain remedy at law. It is true, as insisted by the counsel for the defendant, that as a direct devise to the poor of the county of Beaufort the devise cannot have effect. "The poor of a county," as defined by our laws making provision for their care, maintenance and support, are a fluctuating body, consisting of those who from time to time, because of age, infirmity or calamity, are unable to subsist of themselves and are are therefore declared the subjects of a public charge. It is to this fluctuating body the testator would fain give these lands; but as the law has not conferred on it an artificial character which renders it able to take donations, the gift as a direct gift cannot have effect.
But it by no means follows that the purpose of the testator's disposition shall therefore be frustrated. The lands, indeed, for want of capacity in "the poor of the county" to (219) take, descended to the heirs at law of the testator; but the declaration of the testator that they shall be held for the poor of the county of Beaufort, to be rented, leased or cultivated for them, raises a charitable use or trust, which the law recognizes as good and which will be established and enforced by the competent authority. It is unnecessary to inquire in this case whether the jurisdiction exercised by the courts of chancery in England in establishing a definite charity, where the conveyance or devise was defective because of the want of proper persons to take in succession, had its rise after the Statute of Elizabeth or was settled before that statute upon principles introduced into the English jurisprudence from the civil law. There can be no doubt but that it was the constant practice of that court before the colonization of America, and so continued down to the Revolution, to enforce such charitable dispositions. They were not permitted to fail because of the want of a trustee, and, in analogy to the rule of equity in other cases, the person on whom the legal estate devolved was declared in equity a trustee pro hac vice. There can be no reason to doubt but that the jurisdiction of the court of chancery in this State while yet a colony was modeled after and regulated by the rules of the court of chancery in the mother country; and by the act of 1782, establishing courts of equity in this State, it was declared that they should possess all the powers and authorities that "the court of chancery which was formerly held in this State under the late government used and exercised and that are properly and rightfully incident to such a court agreeably to the laws in force in this State and not inconsistent with our Constitution." The Statute of Elizabeth was avowedly passed to redress the misemployment of lands, goods and stocks of money theretofore given to certain charitable uses, though the mode of redress directed was by its enactments made to apply to subsequent dispositions for such uses. This statute was in force in this State ( Haywood v. Craven, 4 N.C. 360, 557, and Griffin v. Graham, 8 N.C. 96), and so remained, until it was superseded by our act concerning charities (Revised Stat., ch. 18), which (220) was passed expressly for the same purpose, viz., to secure the faithful management of all property, real or personal, which had been or thereafter should be granted by deed, will or otherwise for such charitable purposes as were allowed by law. The English statute in its recital enumerated many different sorts of gifts theretofore made, where the things so given had not been "employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust and negligence in those that should pay, deliver and employ the same"; and this enumeration in the statute was afterward often resorted to by the courts to aid them in ascertaining whether the intent to which subsequent dispositions of property were made should be regarded as equally charitable with that recognized as charitable by their statute. Our act considering that what was a charitable intent or purpose had then been well ascertained, instead of an enumeration of charitable purposes, used the comprehensive term, "such charitable purposes as are allowed by law." There can be no question but that a gift to or for "the poor of a county" is such. The statute and the act are important, as regards the present inquiry, only because they declare the public will that such purposes are good purposes and ought to be protected and upheld. We confine our decision to the case of a charity where the objects thereof are definite, as they are in the case before us, "the poor of the county of Beaufort." In such a case we cannot doubt that a court of equity, in the exercise of a plain jurisdiction, will establish the charity and make the necessary decrees for causing it to be executed. Where the gift is to charity merely, or to undefined purposes of charity, whether a court of equity has then a power to interfere and to select the charity opens a field of inquiry into which we shall not enter until the occasion may demand it. The charge in the information that the defendant entered upon these lands claiming them as the heir at law of the testator is sufficiently explicit, and the demurrer admits it for the present. If he have any other claim, or if he be not the heir at law, it is competent for him to allege such a matter in his answer. The objection that the declared trust would establish a (221) perpetuity and is therefore forbidden by our Constitution is untenable. The perpetuities thereby contemplated are estates settled for private uses, so as to be unalienable. Griffin v. Graham, 8 N.C. 96. This is a public charity.
The decree below must be reversed with costs, the demurrer overruled and the cause remanded for further proceedings.
PER CURIAM. Ordered accordingly.
Cited: Holland v. Pack, post, 260; Bridges v. Pleasants, 39 N.C. 32; Keith v. Scales, 124 N.C. 511.