Holton v. . Elliott

138 S.E. 3, 193 N.C. 708, 1927 N.C. LEXIS 437

• Court: Supreme Court of North Carolina
• Decided: May 11, 1927
• Status: Published

Opinion

Adams, J.

In devising the Martin farm to the trustees of Trinity Church, Mrs. Neisler had in mind the double purpose of providing a home for the ministers who should serve the church and of caring for her lot in the cemetery, and keeping it in good condition. These two purposes constituted the chief object of her bounty, and her gift was the means by which the object was to be attained. The devise was a gift for a charitable purpose. Gifts of this character, though not expressly included among those enumerated in 43 Elizabeth, the Statute of Charitable Uses, are upheld and enforced; and courts of equity have jurisdiction to order, and in proper cases do order, the alienation of property devised for charitable uses. Keith v. Scales, 124 N. C., 497; Vidal v. Girard, 43 U. S., 127; 2 How., 127; 11 Law Ed., 205; 11 C. J., 323; Eaton on Eq., 349. The power is not infrequently exercised where conditions change and circumstances arise which make the alienation of the property, in whole or in part, necessary or beneficial to the administration of the charity. The principle is very clearly upheld in Church v. Ange, 161 N. C., 315, in which it is said“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, sec. 2673, the plaintiffs can sell. If, however, this was doubtful, the sale in this ease 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 (2 ed.), 298; Stanly v. Colt, 5 Wall, 119, 169.’ ”

The judgment is

Affirmed.