Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-09-03
COURT q! Ri DECISIONS j.
~. Notes les! sot Eases Recently Decided.
Wliich'ure Of Interest to
Our People.
d DIGESTEP BY W. B. MARTIN.
tExclusively for virelnlan-P Pilot,
KEIrH v. SCALES.

ANA1A IL Ao~<Aa<A1A'' d
Supreme Court Of North Carolina.
April is, 1920.
L "a DEVISE IN TRUST FOR A MORA
WAN CHURCH AND SCHOOL.
AND THAT EACH MEMBER HAVE
AN ACRU OF LAND AND HIS
CHILDREN EDUCATED TREE AT
THE SCHOOL is VALID.
= III THERE ARE SEVERAL SUCH
.r CHURCHES IT Is. A LATENT AM
s BIGU1TY5 EXPLAINABLE BY PA
roll
IF THE AMBIGUITY IN a WILL IS
AS TO THE TRUSTEE AND NOT
TIE BENEFICIARIES EQUITY
BE- WILL NOT ALLOW THE TRUST
TO FOIL
I. SUCH A DEVISE IS NOT VOID FOR
1NDEFINITENESS, AND is GOOD
ALTHOUGH THE CHURCH AND
SCHOOL IS NOT IN EXISTENCE.
THE TRUSTEE IN SUCH CASE
SHOULD HOLD THE FUND UNTIL
AN INCORPORATION IS AFFECT
ED.
This proceeding was brought by the
administrator with the will annexed of
E. H. Clcmmons against his heirs ut
law, next of kin and devlsees, to have
the will proved in solemn form, and
for construction of the same. He
died childlesS. The testator devised
and bequeathed his estate, estimated ut
100000. as follows: AFTER the above,
then 1 will and bequeath all the rest
of my estate, including my wlfe's at
her death, for Moravian church and
school in my native town, Clemmons-
vile, Forsyth county, n. c. l desire
the Moravan Church of Salcmi appoint
proper persons to purchase one hum
drcd acres of land in or near Glenn
monsvile; to first erect q substantial
church of brick, not to exceed in cost
$4,000. a school building not to exceed
in cost 100000 and n comfortable house
FOR the entire use Of a MOravian min
lister and teacher. l desire each men,
Der of said church to have lot OF one
acre OF this land purchased at 81 each,
rs far as The land goes, and his chill
dren TO be sent to school free of charge
as long MS any part of my estate re-
mains 10 pay the expenses OF said
church,, then school. To be managed
and controlled by the church of Salem,
n. &. It Is my intention that all my
estate, except as before stated, be used
and managed by the Moravian Church
OF Salem, to maintain church and
Az
c., and when, If ever, abolished. then
to 20 to my nearest living relatives"
The lower court held the devise valid
and defendants appealed.
The court says:
1t is II matter between the two con-
gregations commonly known as the
"Moravian Church of Salem ms to
which was intended to be the trustee.
This will not affect the validity of the
devise or the rights of the defendants.
An uncertainty as to the cestui que
trust is fatal to n devise in trust unless
IL Is n latent ambiguity which can be
ascertained. 1t is otherwise where the
uncertainty is as to the trustee, in
which case the court Will protect the
trust, and, il need be. appoint IL new
trustee.
Tho next two exceptions are that the
court erred in not holding that the
trustee. the Moravian Church, could not
Eold property, real and personal. But,
If there had been no incorpora ton, the
court would hold the fund until "in-
corporation could be taken out, and,
ii that were not done in Il reasonable
time, appoint u substituted trustee
The other exceptions are to alleged
error in not holding the devise for Il
church and school at Clemmonsvilles
void.
In Griffin V. Ora ham, n. C. 96. the
should be purchased, and that a brick
house shall be erected OH said land
suitable for school ROOM ana furnish
ed in plain manner for the accommo-
dalton of INDECENT scholars and be
called Griffin Free School" The
school had no previous existence, but
was to be established by the trustees.
The court upheld the trust, and the in
stitution Is still the pride of New Bern.
In fact, n very large proportion of de-
vises of this nature are to institutions
to be established in consequence Of the
VIII, and II sufficiently definite, they
nave always been upheld. Certainly
we Know of none declared void on the
ground assigned In this exception.
"(3) That 100 acres of land are d.
rected to be bought, and one acre al
iotted, each, to parties incapable OF be-
ing designated nor capable of enforc-
Ing the trust" A devise "ror the es
adjustment of free school or schools
Tor the benefit OF The poor OF the coun-
~" was held valid Estate V. McGow-
an, "a N. c. .; Hunt v Fowler, III III.
2G9; IL N. q. AL. and II N. C. 2lO) a
devise to "A, bishop of ~ C.. and his
heirs. In trust for the poor orphans of
the State of North Carolina, and tho
sald bishop and his successors have
the right TO select such Orphans was
upheld by Pearson, c. j., in Miller v.
Atkinson, 63 n. G. 537. y gift to trus
tees. ito be by them applied to the
payment of tuition money for such poor
children as tic trustees may dcsig-
nate,H was sustained in Newton Aca-
DENY " Bank of Ashevllc, 101 N c.
ass, $. p. ia: and the interest on the
fund to be applied for the educating
OF poor mutes'' was treated as valid
In School for Deaf and Dumb V. In
stltute for Deaf. Dumb and Blind III
4