Church v. Ange

161 N.C. 314

Opinion

AlleN, J.

The will under consideration contains no restraint upon alienation that the law would not have imposed upon the declaration of trust in favor of Grace Church, as the property is devised in trust, and, in the absence of a power conferred by the will, could not be sold for any other purpose than the one designated, and the language used can have no legal signification except to confer the power to sell.

The language, the property “shall not be disposed of, sold, or used in any other way or for other purpose than the one designated in this clause of my will,” manifests an intention to effectuate the trust, and to permit a sale if the purpose declared, of providing a rectory, can be thereby promoted; but if this power to sell and reinvest in other land, suitable for a rectory, is not contemplated by the will, it is not forbidden, and under the statute, Revisal, see. 2673, the plaintiffs can sell.

If, however, this was doubtful, the sale in this case has the sanction of the court, and courts of equity have long exercised the jurisdiction to sell property devised for charitable uses, where, on account of changed conditions, the charity would fail or its usefulness would be materially impaired without a sale. Lockland v. Walker, 52 N. W. (Mo.), 427; Brown v. Baptist Society, 9 R. I., 184; Stanly v. Colt, 72 U. S., 119; Jones v. Habersham, 107 U. S., 183.

In the last case, the Court said of an express provision against alienation: “It will not prevent a court of chancery from permitting, in case of necessity arising from unforeseen change of circumstances, the sale of the land and the application of the proceeds to the purposes of the trust.' Tudor on Charitable Trusts (2d Ed.), 298; Stanly v. Colt, 5 Wall., 119, 169.”

We are of opinion that the sale is valid, and the judgment of the Superior Court is

Affirmed.