Opinion
TAYLOR, C. J., gave no opinion in many of the cases decided at this term, being prevented by indisposition in his family from attending the consultations.
1. A charitable purpose under the statute of 43 Elizabeth must be so described in a will that the law will at once acknowledge it to be such.
2. Wherever the intention of the testator is to create a trust which cannot be disposed of to charitable purposes, and is too indefinite to be disposed of to other purposes, it reverts to the heir at law or next of kin. Hence, a direction by a testator that his slaves shall be set free, or a bequest to his executors of his slaves in trust that they will set them free, is against public policy and void, and the slaves consequently result to the next of kin.
JOHN CRAVEN, by his last will and testament, gave and bequeathed to James Turner, Nathaniel Macon, and John Hall, to the survivors of them and the executors of the survivor, immediately after his death, three of his slaves, viz., Prince, Hannah, and Grizzy, and their increase, in trust, to have them emancipated and set free, by the laws of the State, in such manner and at such time as they shall think fit. He also devised to his said executors the half of Lot No. 223 in trust for the use of Hannah and Grizzy, and a quarter of an acre of land in trust for the use of Prince. To his sister Margaret Craven he left his town house, during her lifetime, and the residue of the lot not before disposed of, together with a plantation and thirty slaves, and whatever else was not given away by the will. After sundry bequests, he gives and bequeaths, after the death of his sister, to his executors, the survivor of them and the executor of the survivor, twenty-nine slaves and their increase, in trust, to have them set free, by the laws of the State, in such time and in such manner as they may think proper. He gave also to his executors, after the death of his sister, his plantation tools and implements (361) of agriculture, in trust for the use of such male slaves as were, at the date of the will, of the age of 16 years or upwards, and for the females of all ages, to hold the same as naked trustees, for the use and benefit of the said negroes and their heirs forever. The executors are empowered to bind out all the male negroes at 16 years of age to different trades, until they attain the age of 21, when they are to be emancipated. He directs his executors to sell his house and lot in town, after the death of his sister, on a credit of five years, and the interest to be collected annually and applied to the use of Prince, Hannah, and Grizzy. He also gives to his executors 8 acres of land in trust for Grizzy, and directs them to sell his furniture, or, if necessary, his stock, for the payment of his debts; and in the event of his sister dying before him, requires his will to be carried into immediate execution; his slaves to be lawfully liberated as soon as his executors can find it convenient to do so.
A. Henderson and Murphey in support of the demurrer.
Brown and Gaston for the complainants.
The testator died and his sister Margaret was put into possession of the property, and by her last will and testament devised and bequeathed all her property to the complainants, Stephen and Dallas Haywood, the former of whom, after the death of the testatrix, had the will proved, and was duly appointed administrator with the will annexed. Prince and Hannah were emancipated by the county court during the lifetime of Margaret Craven. Grizzy died a slave.
The bill prays that the defendants may be decreed trustees for the benefit of the complainants, and compelled to deliver unto them the land and slaves, and account for the profits.
To this bill the executors demurred.
As those members of the Court, who alone can (367) decide in this case have no doubt on the subject, and both parties seem anxious to avoid further delay, we see no reason to postpone the judgment; although it would have been more consonant to the respect with which we have listened to the able arguments on the part of the defendant to have stated particularly wherein they have seemed to us inconclusive, and failed to produce conviction in our minds. But this could only be done by the delay of a term, as we have ascertained the general principles on which we do agree a few minutes only before coming into court, and as this is the last day of the term, we must give the opinion in general terms or not at all.
We are of opinion that the trust attempted to be created by the will of Mr. Craven is void in law, not only as contrary to its general policy, but as repugnant to positive provisions by statute; for the law has pointed out one method only in which slaves can be liberated (act of 1741, ch. 24), and the principle on which it is permitted can by no construction be applied to the case before us. The same act directs the slaves to be sold if the owner sets them free in any other manner. With respect to the cases decided upon 43 Eliz., it is believed that not one can be found in which a court of equity has executed a charitable purpose unless the will so described it that the law will acknowledge it to be such. The disposition must be to such purposes as are enumerated in the statute, or to others bearing an analogy to them, and such as a court of chancery in the ordinary exercise of its power has been in the habit of enforcing. But wherever the intention is to create a trust which cannot be disposed of to charitable purposes, and is too indefinite to be disposed of to any other purposes, the property remains undisposed of, and reverts to the heir at law or next of kin, according to its nature. This is the construction of courts of equity, even upon charitable dispositions. 10 Vesey, Jr., 552. But for the reasons already stated, we do not perceive any resemblance between them and this case. It must, therefore, be governed by the general rule, and as the trustees have no interest, they must be considered as holding the property for the (368) benefit of those on whom the law casts the legal estate.
Demurrer overruled.
NOTE. — See Huckaby v. Jones, 9 N.C. 120; Turner v. Whitted, ibid., 613; White v. White, 18 N.C. 260; Sorrey v. Bright, 21 N.C. 113; Pendleton v. Blount, ibid., 491; White v. Green, 36 N.C. 45. By an act passed in 1830 (1 Rev. Stat., ch. 111, sec. 59), a testator may emancipate his slaves by his last will under certain restrictions.
Cited: Wright v. Lowe, 6 N.C. 356; Stevens v. Ely, 16 N.C. 497, 499; Redmond v. Coffin, 17 N.C. 441, 453; S. v. Gerard, 37 N.C. 219; Thompson v. Newlin, 38 N.C. 340; Cox v. Williams, 39 N.C. 17; Bennahan v. Norwood, 40 N.C. 108; Lemmond v. Peoples, 41 N.C. 140; Thompson v. Newlin, 43 N.C. 45, 50; Green v. Lane, ib., 79; Green v. Lane, 45 N.C. 114; Myers v. Williams, 58 N.C. 367.