#### THE STATE on the relation of EDWARD STANLY, Solicitor for the State, *vs.*JOSEPH McGOWEN.

A devise of funds “ for the establishment of a free school or schools, for the benefit of the poor of a county,” is a valid devise, and is not such a perpetuity as is prohibited by the Constitution of this State or by the common law.

In the case of an express, direct trust, confessedly open and unexecuted, no length of time will dperate as a bar to a demand by the *cestui que trust*against the trustee.

The cases of *Griffin*v *Graham,*1 Hawks 96; *Falls*v *Torrance,*2 Hawks 490, 4 Hawks 412; and *Tate*v *Greenlee,*2 Hawks 486, cited ánd ap. proved.

This was afi appeal from an interlocutory degree of his Honor Judge Bailey at Spring Term, 1841, of Dnplia Court of Equity, overruling a demurrer filed by the defendant.

*10The case commenced in 1836, by an information filed in the Court of Equity of Duplin County, in the name of the State by Edward Stanly, Solicitor in the second judicial district. This information alleged in substance as follows: theretofore Alexander Dickson, late of the County of Duplin, deceased, being possessed of a very considerable real and personal estate, consisting of various descriptions, did on or about the 19th day of June, in the year 1813, duly make and publish his last will and testament in writing of the date beforementioned, and therein and thereby, among other things, did devise and bequeath in manner and form following: that is to say, *“Imprimis,*my will is, and so I direct, that all my just debts and funeral expenses be first paid out of my estate by my executor hereinafter named. It is my will and desire that all my lands be sold at public auction by my executors for the highest price that may be got, in the following manner, that is to say, the manor plantation, &c. (here the testator enumerates his different tracts of land and describes the manner in which they are to be sold). Item. I leave and bequeath to my nephew John Dickson, son of my brother Robert Dickson of Cumberland County, Blocker, Terry, my young negro wench named Amey and her increase to him and his heirs forever. Item. I leave and bequeath to my nephew Joseph McGowen, my negro woman named Nancy,and her increase to him and his heirs forever. Item. I leave and bequeath to my nephew Jones Dickson, five hundred dollars, to be paid in notes, if so much in possession at the time of my death; if not, to be raised out of the sales of my estate and paid to him by my executors. The residue of my negroes is to be sold in the following manner, that is to say, old Lucy and her daughter Lucy, and her son Frank and her increase hereafter to be sold in one lot and not separated, also Kit, and her three youngest children that she may have at the time of my decease to be sold in one lot and not separated. Old Taris-man is to be well treated by my executors and not let him want for any thing. The negroes not herein named are to be sold separate to the highest bidder. The remaining part *11of my estate consisting of horses, cattle, hogs and sheep, household and kitchen furniture, and plantation tools of every description and all kinds of crops and produce are to be sold in the same way as my other property. The money arising from the said sales is to be collected by my executors when due, as soon as may be. Should there be any money, bonds, notes or accounts on hand at the time of my decease, my executors are to account for them; and after paying out all expenditures that may have accrued heretofore, or may hereafter accrue, the nett proceeds 'are then to be kept and put by my executors to the use of a free school or schools for the benefit of the poor of Duplin County.” The information then proceeded to state that the said testator did nominate snd appoint John Dickson of Cumberland County, and Joseph McGowen of Duplin, executors of his said will, as by the said will or the probate thereof, whereunto the said solicitor for greater certainty referred, and prayed might be taken as part of this information, reference being had thereto would more fully appear. The information further set forth, that afterwards the said Alexander Dickson departed this life without altering or revoking his said will. Whereupon, at July Term, 1814, of the Court of Pleas and Quarter Sessions of the County of Duplin, the aforesaid will was duly admitted to probate, and at the same time the said John Dickson and Joseph McGowen qualified as executors thereto and took upon themselves the execution thereof, and by virtue thereof, possessed themselves of the real and personal estate of the said Alexander Dickson, to a very considerable amount and much more than sufficient to satisfy all the just debts and funeral and testamentary expenses. The information further shewed that afterwards John Dickson, one of the executors who qualified to the said will, died; and that thereupon the said Joseph McGowen, became sole executor, of the said Alexander Dickson, and that the said Joseph McGowen, received or ought to have received into his possession the whole of the real and personal estate, of which the said Alexander Dickson died seized or possessed or entitled to, and of the money or other funds, the proceeds of the sales of all or any part of. the aforesaid real and per*12Sonal estate of the aforesaid Alexander Dickson, and which saidssales were made or ought to have been made by the said Joseph McGowen and John Dickson, or one of them-And the information further set forth, that at January Term, j)Up|jn County Court, 1817, Daniel Glisson,Edwaid Pear-sall, A. Mclntire and John Hunter, having been appointed to settle the accounts of the executors of Alexander Dickson, did report, that there was a balance remaining in the hands of the executors often thousand eight hundred and twenty one dollars forty niiie cents, and the further sum of eighteen hundred dollars, being the amount of eighteen shares of the capital stock of the State Bank of North Carolina. And the information charged that the said executors joined and concurred in the report aforesaid, and, that since that time, the defendant had failed to make to the County Court aforesaid any return or report whatever, and had failed to deliver in Writing to the Clerk of the said Court, a full and particular account of the property confided as aforesaid to his management by the testator, Alexander Dickson, and of the execution of the trusts in the aforesaid will contained. And the information further stated, that the said solicitor had reason to to believe that the property aforesaid had been mismanaged through negligence or fraud, and that there was reason to apprehend that the said Joseph McGowen would convey the property or funds beyond the limits ofthe Stale of North Carolina, by which means the intention of the testator would be defeated and the *cestuis que trusts*would be deprived of the benefit of their legacy under the will aforesaid. And the information then prayed that the said Joseph McGowen might upon oath answer the aforesaid allegations, and might set forth a particular description and account of all the property of his testator, which had come or might have come to his hands, and of the proceeds of such part thereof as had been sold; and that he might be compelled to apply the same to the uses and purposes set forth and specified in the will aforesaid; and that he might be decreed to give security for the immediate and due performance of the trusts mentioned in the said will, and for the safety and forthcoming of the estate, real and personal, found to be in his hands or which *13ought to have been in his hands; or in case he fail to do the same, that he might be decreed to pay and deliver over the same to such person as this Honorable Court should appoint to receive the same; and that the defendant might be held to bail to answer such judgment as might be recovered against him upon the hearing of the information; and ihat such other and further relief might be granted as the nature of the case might require, and as to the Court should seem meet.

This information was sworn to by the Solicitor, and the defendant was held to bail, by order of the Court, in the sum of twenty thousand dollars.

To this information the defendant, by his counsel, filed the follo,wing demurrer, to wit:

The demurrer of Joseph McGowen, defendant, to the bill of complaint of the State of North Carolina, by and through Edward Stanly, Solicitor of the second Judicial District, complainant. This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said bill of complaint contained to be true in such manner and form as the same are therein and thereby set forth and alleged, doth demur in law to the said bill; and for cause of demurrer showeth that the said complainant has not, in and by his said bill, shown any right or title to the discovery or account thereby sought, nor any right, title, or interest, in the real or personal estate of the late Alexander Dickson, deceased, of Duplin County, bequeathed or devised by his last will and testament, as set forth in the said bill of complaint, and hath no right to call this defendant,'as executor of the said last'will and testament to account in this Court. And for further cause of demurrer, this defendant saith, the legacy or trust dechued in the said last will and testament, set forth in said bill, in behalf and for the use of a free school or schools, -for the benefit of the poor of Duplin County, is void for uncertainty and indefiniteness, as to who are the person or persons entitled to enjoy the same, or 'for the want of a known and competent devisee to take the same. And for further.cause of demurrer the defendant saith, that the said legacy or trust is void, because it is a perpetuity. And'for further cause of demurrer the defendant saith, that the said *14legacy or trust is not such a charity as this Court has jurisdiction over or can enforce. And as to so much of the said bill as seeks a discovery or account of all and singular the real and personal estate and effects, which were of the testa-Alexander Dickson, at the time of his death, over and above and beside the money, bonds, notes, or accounts, on hand at the time of his decease, this defendant doth demur thereto; and for causé of demurrer saith, that the said testator, in and by his said will, did not devise or bequeath to his executors, to the use of a free school or schools for the benefit of the poor of Duplin County, any other estate, property, or effects, which were of his at the time of his death, save the money, bonds, notes or accounts, which were on hand at the time of his decease. And this defendant saith, he is advised that, according to the true construction and meaning of the said testator, in and by his said last will and testament, he only therein and thereby devised or bequeathed to his executors, to the use of a free school or schools, for the benefit of the poor oi Duplin County, the *money,*bonds, notes, or accounts, which were of his, and were on hand at the time of his decease, and no more and no other of his estate, real or personal, effects or credits. And for further cause of demurrer to the said bill of complaint, this defendant saith, that it appears, by the complainant’s own showing by his said bill, that this defendant qualified as executor to the said will at July Term, 1814, of Duplin County Court, and took upon himself the execution thereof, and possessed himself of the real and personal estate of the said Alexander Dickson, to a very considerable amount, and much more than sufficient to satisfy all the just debts and funeral and testamentary expenses ; and further, that at January Term, 1817, of Duplin County Court, a balance was reported by certain persons in said bill named, appointed to settle the accounts of the executors of the said Alexander Dickson, deceased, as remaining in the hands of said executors, of $10,821 49, and the further sum of $1800, being the amount of 18 shares of Bank Stock, and that said executors joined and concurred in the said report; and as it so appears by the complainant’s showing, that this defendant had assumed the burthen of ex-*15editing the said will more than 20 years before the filing of said bill of complaint, and also that he concurred in said report more than ten years before filing the said bill; this defendant is advised he ought not and cannot be called on for the account and discovery sought by complainant, after so great a lapse of time. Wherefore, and for divers other good causes of demurrer appearing in said 'bill of complaint, this defendant doth demur to the said bill, and all the matters and things therein contained, and prays the judgment oí this Honorable Court whether he shall be compelled to malte any further or other answer thereto; and he humbly prays to be hence dismissed with his reasonable costs in this behalf sustained.

JOSHUA G. WRIGHT,

Wm. A. WRIGHT.

*Defendant’s Solicitors.*

Upon the argument of this demurrer at Spring Term, 1841, of the Court of Equity of Duplin County, the Court ordered and decreed that the demurrer be overruled. Prom this interlocutory decree the defendant prayed for and was allowed an appeal to the Supreme Court.

*J. G. Bynum,*Solicitor for the State.

*W.*IT. *Haywood, Jr.*for the defendant.

Gaston, J.

We are decidedly of opinion that the demurrer in this case was properly overruled. There can be no question but the purpose, to which the testator has appropriated the funds, of which an account is demanded by this bill, the establishment “of a free school or schools, for the benefit of the poor of Duplin County,” is one approved by the law as a public charity ; and it is too late to contend, since the decision of the case of *Griffin*v *Graham,*that the establishment of a permanent fund for charitable uses comes within the mischiefs of a perpetuity, or is prohibited either by our Constitution or the common law as such. *Griffin*v *Graham,*1 Hawks 96. It was held by the majority of the Court in that case, that, independently of the Statute of Elizabeth, wherever there was a trust and trustee, with general *16or specific objects of charity pointed out, a Court of Equity in this State might, as a matter of trust, take cognizance of it in virtue of the ordinary jurisdiction of that Court. But W6re ^ not so>'no' caíl now be entertained, since express- jurisdiction over such subjects has been conferred on. the Court, and the mode of exercising that jurisdiction has been directed by the Acts of 1831, c. 24, s. 6. and 1832, c. 14, s. 2, 3, 4. (Rev. Stat. c. 18.)

It seems to us also very clear, upon an examination- of the will, that the testator has devoted to this public' charity, not merely what might remain of the money, bonds, notes, and accounts that should be on hand at the time of his death, but the *net*proceeds of all his estate. The will commences with the injunction that his debts and funeral expenses shall be satisfied out of his estate by his executors. It proceeds to give particular directions for the sale of his various tracts of land, which he carefully enumerates and describes; It then makes a specific bequest of a negro to each of his nephews, Robert Dickson and James McGowen. The testator then gives a; legacy of $>500 to his nephew, James Dickson, to be paid in notes, if so much in possession at the time of his death, and if not, then to be raised out of the sales of his estate ; and afterwards proceeds to give special directions as to the sale of the residue of his negroes, and of the remaining part of his estate, consisting of“ horses, cattle, hogs, and sheep, household and kitchen furniture of every description, and ail binds of crop and produce.” He orders that his executors shall collect the money arising from the sales as soon os may be,- and that, “ should there be any money, bonds, notes, or accounts on hand at the time of his decease,” the executors shall account for them, and concludes the dispositions of his .will thus.' “And after paying out all expenditures that may have accrued heretofore, or may hereafter accrue, the net proceeds are then to be kept and put by my executors to the use of a free school or schools, for the benefit of the poor of Duplin County.” The construction set up on the part of the defendant i-s too absurd t-o receive-our sanction. It supposes,- in the first place, that the testator has ordered the great bulk of his property tobe sold, aud made no disposition of *17the proceeds. In the second place, that he has directed a free school or schools to be established out of a fund, in re gard to which he doubted whether any such would exist at his death, and which, at all events,; he supposed would be inadequate to pay the legacy of $500 specifically charged upon it. No one, we think, can reasonably doubt, but that by the terms “ net proceeds,” he meant the net proceeds of the subject matter of his will, all the property embraced therein; that is to say, all that should remain thereof, after satisfying his debts, the previous legacies and the expense of executing the will.

The remaining ground of demurrer is equally unfounded. The trust admitted by the demurrer is an express, direct trust, confessedly open and unexecuted. No length of time operates as a bar to a demand by the *cestui que trust*against the -trustee, founded on such a trust, and-, therefore, no length oí time can be pleaded or made the ground of demurrer to such a demand. *Falls*v Torrance, 2 Hawks, 490. 4 Hawks 412. *Tate*v *Greenlee, 2*Hawks, 486.

This opinion must be certified to the Court below, with directions to proceed with the cause. And there should be a judgment here against the appellant and his sureties for the costs of this Court.

Per Curiam, Ordered and decreed accordingly.