ClabK, J.
This proceeding is brought by the administrator with the will annexed of E. T. Clemmons against his heirs at law, next of kin, and devisees to have the will proved in solemn form, and for a construction of the same. He died childless. After a devise to his widow, which is eliminated from our consideration by reason of her having dissented, and three small bequests to relatives, which are not contested, the testator devised and bequeathed his estate, estimated at $100,000, as follows:
“After tbe above then I will and bequeath all the rest of my estate, including my wife’s, at her death, for a Moravian Church and School in my native town, Olemmonsville, Eor-syth County, N. O. I desire the Moravian Church, of Salem, appoint proper persons to purchase one hundred acres of land in or near Olemmonsville; to first erect a substantial church of brick, not to exceed in cost $10,000, a school building not to exceed in cost $10,000, and a comfortable house for the entire use of a Moravian minister and teacher. I desire each member of said church have a lot of one acre of this land purchased at $1.00 each, as far as the land goes, and his children to be sent to school free of charge as long as any part of my estate remains to pay the expenses of said church first, then school. To be managed and controlled by the church, of Salem, N. C. It is my intention that all my estate except as before stated be used and managed by the Moravian Church, of Salem, to maintain a church and school at or near Olemmonsville, N. G., and when, if ever, abolished then tp go to my nearest living relatives.”
The ease having been transferred, upon issues raised by the pleadings to the Superior Court, the Judge, upon facts agreed, found as a fact that, “The Board of Provincial Elders of the Southern Province of the Moravian Church, or
Umitas Fra-trum/’’
officially located at Salem, N. C., and a corporation under the laws of North Carolina was the trustee intended in his will by the designation “Moravian Church of Salem” and adjudged that the bequest and devise of the residue of the estate as above set forth was valid, and directed that the net proceeds of the personality after payment of the widow’s distributive share, the three small bequests mentioned and the costs of administration, be paid over to said trustee, and that said trustee is the owner and entitled to the possession of all the real estate of which the testator died seized, subject to the
dower rights of the widow. Erom this judgment the defendants appealed, assigning the following grounds of exception, which will be noted
seriatim.
The first two exceptions are to the findings of fact that the “Board of Provincial Elders of the Southern Province of the Moravian Church,” was the trustee named. This was shown to be the official designation of the religious denomination, commonly known as the Moravian Church, with its headquarters at Salem, which is incorporated in North Carolina, and owns large bodies of land, having received
inter alia
at one time a grant of 1,000,000 of acres of land from Earl Granville, holding and investing the funds of the Province and the legal title to the Churches and Chapels and schools within its jurisdiction, including the well known and long established female college at Salem. It was also in the facts admitted that the Moravian Church congregation at Salem, owing allegiance to the Province above referred to, of which it is a member, was also incorporated, and owned considerable property, including four affiliated chapels, and is also commonly known as the Moravian Church of Salem, but it exercises no control over any property or Church beyond its immediate vicinity, and is subject to the authority of the Province of which it is a member, and from which its ministers receive their appointment. (This last corporation and its charter have been before this Court in
United Brethren v. Commissioners,
115 N. C., 489). At the most, this was a latent ambiguity, and explainable by parol evidence.
Simmons v.
Allison, 118 N. C., 763, 776;
Asheville v. Aston,
92 N. C., 578;
Ryan v. Martin,
91 N. C., 464;
Tilley v. Ellis,
119 N. C., 233. The finding of fact by the Judge to whom by consent it was submitted, is binding upon the defendants. In
Tilley v. Ellis, supra,
a latent ambiguity was sent back to be passed upon by the jury, but, as in that case, the ambiguity
was as to the
cestui que
trust, tbe Court added that if it could not be determined who was meant, the devise would lapse for the benefit of the heirs.
Trustees v. Colgrove,
4 Hun., 368, and cases there cited. But here the ambiguity being as to the trustee, the Court would not allow a trust to fail for want of a trustee. Besides, it is not ground for exception to the defendants who can not be concerned who is trustee.
But when the case gets back into the Superior Court, it may be well for the administrator, for his own protection, to cause the Moravian Congregation at Salem, which is officially incorporated as the “Congregation of the United Brthren of Salem,” to be made a party defendant (it is not a party to this action), that it may be bound by the final order holding the Provincial Elders of the Moravian Church to be the trustee designated, or given opportunity to contest the same if that congregation should so desire. It is a matter between the two congregations commonly known as the “Moravian Church of Salem,” as 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 a devise in trust, unless it is a latent ambiguity which can be ascertained.
Tilley v. Ellis, supra; Institution v. Norwood,
45 N. C., 65. It is otherwise where the uncertainty is as to the trustee, in which case the Court will protect the trust and if need be appoint a new trustee. 2 Perry Trusts, Sections 730, 731.
The next two exceptions are that the Court erred in not holding that the trustee, the Moravian Church, could not hold real estate, and besides has no corporate existence. It appears from the facts agreed, that both the organizations referred to above, and both of which are commonly known as the “Moravian Church of Salem” (one being the Province, with headquarters at Salem, and the other the .Congregation
of that Church in that town), were incorporated, and both have power to take and hold property, real and personal. But if there had beeu no incorporation, the Court would hold the fund until “incorporation could be taken out”.
Allen v. Baskerville,
123 N. C., 126;
Ould v. Washington,
95 U. S., 303; and, if that were not done in a reasonable time, appoint a substituted trustee.
The other exceptions are to alleged error in not holding the devise for Church and School at Olemmonsville void:
1. “That the same is attempted to be given to a Church and School not in existence.” In
Griffin v. Graham,
8 N. C., 96, the will provided that two acres of land should be purchased, and “that a brick house shall be erected on said land suitable for a school room, and furnished in a plain manner for the accommodation of indigent scholars, and be called Griffin Eree School”. The School had no previous existence, but was to be established by the trustees. The Court upheld the trust, and the institution is still the pride of New Bern. To same effect,
White v. University,
39 N. C., 19;
Vidal v. Philadelphia,
2 Howard (U. S.), 127, (the famous Girard Will Case);
Ould v. Washington, supra.
In
Jones v. Habersham,
107 U. S., 174, it is said: “The bequest, in the 23rd clause of the will, of $1,000, to the first Christian Church erected or to be erected in the village of Telfairville, in Burke County, or to such persons as may become trustees of the same, is supported by
Inglis v. Sailors,
2 Peters, 99;
Ould v. Washington, supra; Russell v. Allen,
107 U. S., 163, and is directly within the decisions of Lord Thurlow in
Attorney General v. Bishop,
1 Bro. Ch., 444, of Sir John Copley, after-wards Lord Lyndhurst, in
Society v. The Attorney General,
3 Russ, 142, and of Lord Hatherly in
Sinnett v. Herbert,
L. R. 7 Ch., 232.” In fact a very large proportion of devises of this nature are to institutions to be established in conse
quence of the will, and if sufficiently definite tbey bave always been upheld. Certainly we know of none declared void on the ground assigned in this exception.
2. “That a church, and school house are directed to be built at a cost not exceeding $10,000, thereby giving a. discretion, without a person or corporation being named capable of exercising the discretion”. It is evident that the discretion was to be exercised by the trustee, and this is a limitation thereon.
3. “That 100 acres of land are directed to be bought, and one acre allotted each to parties incapable of being designated, nor capable of enforcing the trust.” A devise “for the establishment of a free school or schools for the benefit of the poor of the county,” was held valid.
State v. McGowan,
39 N. C., 1;
Hunt v. Fowler,
121 Ill., 269; and “Eor the poor in the County of Beaufort”;
State v. Gerard,
31 N. C., 210; to “A. Bishop, of North Carolina, and his heirs in trust for the poor orphans of the State of North Carolina, and the said Bishop and his successors have the right to select such orphans,” was upheld by PeaesoN, C. J., in
Miller v.
Atkinson, 63 N. C., 537; a gift to trustees “to be by them applied to the payment of tuition money for such poor children as the trustees may designate,” was sustained in
Newton Academy v. Bank,
101 N. C., 488; and the interest on the fund to be applied for the “educating of poor mutes,” was treated as valid in
School v. Institution,
117 N. C., 164. “Each member of said Church not to exceed 100,” is sufficiently definite.
4. “That the will attempts to provide for the education of the children of the indefinite persons to whom the one acre of land is given.” The parents being ascertainable, as above said, this exception is untenable.
5. “That the paper writing attempts to provide a house for a Moravian minister and teacher, and is too indefinite in providing who that teacher may be.” The selection was evi
dently left to tbe trustees, tbe Moravian Oburcb, and intended to be so left, just as tbe trustees of Girard College, of tbe Griffin School, and other institutions established by virtue of a devise, select tbe President and Professors from time to time.
6. “That tbe provision reciting bis intention that bis etsate shall be used and managed by tbe Moravian Church of Salem to maintain a Church or School at or near Clemmons-ville, N. C., is too general and indefinite, and fails to point out tbe beneficiaries, or tbe means by which they may be ascertained.” This has been already discussed.
7. “That the said Moravian Church is not an incorporation, and is incapable of holding a trust.” This is counter to the facts agreed, and need not be considered. Besides, it does hot concern the defendants.
8. “That there are no beneficiaries mentioned in said paper writing sufficiently identified that can enforce the trusts.” As much so as in the Girard College case, the Griffin School case, and all similar instances. In those eases, what boy could come into Court and say, “I, among others, was intended to enjoy this bounty.” The trustees could answer, “In our judgment you are not best entitled to the benefit of the donation,” yet such devises were upheld.
In
Sinnett v. Herbert,
supra, the Court held that “a gift to a charitable purpose, if lawful, is good although no object be in existence at the time,” citing
Attorney General v. Bishop,
1 Bro. Ch., 444, sustaining a gift for “establishing a Bishop in His Majesty’s Dominions in America.” In which case it was also said, “It is immaterial whether the person to take be
in esse
or not, or whether the legatees were, at the time of the bequest, a corporation capable of taking or not, or how uncertain the object may be, provided there be a discretionary power vested anywhere over the application of the testator’s bounty to these objects; or whether their corporate designa
tion be mistaken,” which, is cited in
Vidal v.
Philadelphia,
supra,
which adds, “If the intention sufficiently appears in the bequest, it should be valid.” “In
Holmes v.
Mead, 52 N. Y., 232, it was held that a beneficiary need not necessarily be described by name, that it is not material that a legatee should be definitely ascertained and known at the date of' the will or even at the death of the testator; and it is sufficient, if he is so described that he can be ascertained and known when the right to receive the gift accrues. A provision by will that the whole estate should be used at discretion by the selectmen of B, for the special benefit of the worthy, deserving poor, white, American, Protestant, democratic widows and orphans, residing in B, is valid.
Beardsley v. Bridgeport,
53 Conn., 489. The whole matter of enforcing and controlling private charities is regulated by Sections 2342 to 2345, of The Code, whereby the Attorney General or Solicitor is authorized, on the suggestion of two reputable citizens, to bring suit.
9. “That the power given to the trustees to abolish the church and school makes the devise to them void.” No power is given to the trustees to abolish the church and school, and the reference to the possible abolition thereof is merely a condition subsequent, and does not prevent the vesting of the estate in the trustee. This objection was answered by Pearson, O. J., in
Miller v. Athinson, supra.
“It will be time enough at his (Bishop Atkinson’s) death to make the objection that his successor cannot exercise the power.” So it will be time enough to discuss the effect of an abolition, if it ever happens, at the time it takes place; but such a condition subsequent can not possibly have the effect of destroying the estate.
10. “That the estate attempted to be devised is a base or qualified fee, and is therefore void.” If it fee admitted to be a base or qualified fee, it is not void in North Carolina. “But
however broad may be the language quoted, we have no idea that it was the purpose of the Chief Justice to say that the limitation expressly defined by him as a base or qualified fee in Merrimon’s case (55 N. C., 470) could not be valid in North Carolina. Such limitations are not infrequent in this and other States, and we are'not prepared to adopt a view which leads to such a revolution in the law of limitations of real property.”
Hall v. Turner,
110 N. C., 292.
11. “That there are no words of conveyance conveying the estate to any one to hold in trust, and it therefore descends to the heirs and distributees.” No technical words of conveyance are required in wills.
Allston v. Davis,
118 N. C., 202; Code, Section 2180.
12. “That the will does not contemplate a charity, for it provides that only the children of each member having one acre of the land be sent to school free of charge, as long as any part of my estate remains to pay the expenses of said church first, then the school, and is not in contemplation of Section 2342, of The Code.” While the will prescribes that such children shall be educated free, that is only a part of the trust, which provides in addition for the maintenance of the church and school at that point. The charity is not too vague and indefinite, but quite specific — for “a Moravian Church and school at my native town, Clemmonsville, in Forsyth County, N. C., to be managed and controlled by the Moravian Church, of Salem, N. C.,” the trust is not difficult of execution according to the intention of the testator. He says that it is his intention that all of his estate be used and managed by the Moravian Church, of Salem, to maintain the charity which he was about to establish. Instead of himself naming new trustees to administer the trust, he places this trust in the hands of that Church. The testator himself was a native of Clemmonsville. He was, and had been for
fifty years, a member of the Moravian Cburch at Salem, and died childless, and evidently wished through his Church to perpetuate his family name by establishing at the place of his nativity, which took its name from his family, a charity to be managed and controlled by the parent Church. Courts incline strongly in favor of charitable gifts, and take special care to enforce them. 2 Story Eq. Jur., Section 1169. Charitable bequests are said to come within that department of human affairs where the maxim
ut res magis valeat quam pereat
has been and should be applied. 2 Perry Trusts Section 687. Until the statute of distributions (22 Car. II., Ch. 13) was enacted the Ordinary was obliged to apply a portion of every intestate’s estate to charity, on the ground that there was a general principle of piety and charity in every man. 2 Perry, supra, Section 690; 2 Bl. Cora. 494, 495. This was doubtless a crude beginning of the graduated inheritance tax by which, in Great Britain and most of our States, the estates of the dead are now made to contribute to the benefit of the public.
It is contended that there are several cases in North Carolina in which charitable bequests were declared invalid. But these were very different from the one now before the Court. In
McAuley v.
Wilson, 16 N. C., 276, the testator directed that his property should be formed into a fund to pay a preacher of the Associate Seceding Party to preach at the Church of Gilead, which belonged to the Eeformed Party. The Eeformed Party would not allow the preacher to preach, but fastened the door and windows of the church against him. The Court said that it did not have the power to force the Church to let him preach, and so the devise failed. In
Holland v.
Peck, 37 N. C., 255, the will required the sum to be disposed of by Conference or the different members composing the same, as they shall, in their Godly wisdom, judge to be
most expedient or beneficial for the increase and prosperity of the Gospel; held too indefinite to be executed. In
Bridgers v. Pleasants,
39 N. C., 26, the bequest was to foreign missions, and to the poor saints. The Court, with fine •irony, said, that it was impossible for a Court to say that this man or that was a Saint, and the bequest was declared void, though it was careful to add that if the testator “had made it plain who
he
thought were Saints, the Court would enforce the trust.” In
White v. University,
39 N. C., 19, the Court pronounced a provision that the proceeds be laid out in building convenient places of worship, free for the use of all Christians who acknowledged the divinity of Christ, and the .necessity of a spiritual regeneration, as void for uncertainty.
There are numerous cases that where the testator does not select the object of his bounty but attempts to leave it to his executors or trustees to select, the purpose or class, this is too indefinite, and the devise is void because one cannot appoint another to make a will for him. Among cases of this kind are the famous Tilden will case,
Tilden v. Green,
130 N. Y., 29;
Bridgers v. Pleasants, supra; Johnson v. Johnson,
36 Am. St. Rep., 104; S. C. 22 L. R. A., 119, and notes;
Gambell v. Tripp,
15 L. R. A., 235; but that is an entirely different matter from a case where the object of the bounty, or the class out of which the individuals are to be selected, is definite, as in the Girard will case, the Griffin School case, and others cited above, in which the selection of the individuals of the class designated to share in the bounty is necessarily left to the trustee, since they might not even be born till long after the testator’s death. To the latter class, the present devise belongs.
The doctrine of
Gy Pres
does not obtain in North Carolina,
(Bridgers v. Pleasants,supra), and
would have no application to the case before us, if it did, and therefore needs no discus
sion. That doctrine was simply tbat if a-trust failed for any reason tbe Court would apply the fund to some other charity, as similar as possible — to “somthing else as good.” Nor does the validity of charitable devises depend upon whether the Statute, 43 Eliz., Ch. 4, “Charitable Uses,” is or is not in force in this State. The opinion to that effect has been thoroughly exploded, says the United States Supreme Court in
Ould v. Washington, sufra,
and further says, citing 2 Perry on Trusts, Section 687, “A charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well being of social man.”
To sum up:
1. This is a charitable use.
2. Neither the doctrine of
Cy Tres
nor 43 Eliz., 4, in anywise affects the validity of a devise for such purpose in this country.
3. A latent ambiguity as to either
cestui que
trust or trustee is explainable.
4. The latent ambiguity here being as to the trustee, if not explained, the trust could not have failed, but a new trustee would be appointed.
5. If the object of the trust xere indefinite, it would be void; otherwise, where as in this case, it is definite and the selection of the individuals to enjoy its benefit is left to trustees.
After a careful review of the elaborate argument on both sides, which has been of great assistance to the Court in drafting this opinion, the judgment below is affirmed.
Affirmed.