Z. Smith Reynolds Foundation, Inc. v. Trustees of Wake Forest College

227 N.C. 500

• Court: Supreme Court of North Carolina
• Decided: June 5, 1947
• Status: Published

Opinion

Stacy, C. J.

Tbe parties have agreed on what they want to do. Tbe appellant craves final adjudication of tbe matters before assuming tbe risk of paying out trust funds. To tbis end, certain questions were propounded and answered in tbe court below. We are asked to review tbe answers and to say whether they are correct. Tbis we proceed to do.

Preliminarily, questions of status, power and authority of tbe parties were submitted for inquiry and determination.

I. ZachaRY Smith Reynolds Trust :

Tbis trust is found to be a valid and subsisting, charitable trust under tbe laws of tbe State of North Carolina. It was created by indenture of 21 August, 1936, between Richard J. Reynolds, Mary Reynolds Babcock and Nancy Reynolds Bagley, as grantors, R. Edward Lasater, individual trustee (later resigned), Safe Deposit and Trust Company of Baltimore, corporate trustee (now sole trustee), and Z. Smith Reynolds Foundation, Incorporated. Tbe properties held by tbis trust are tbe properties allotted for such purposes to tbe grantors of tbe trust by judgment of tbe Superior Court of Forsyth County, rendered at tbe Special March 11 Term, 1935, in a civil action entitled “Anne Cannon Reynolds, et al., v. Zachary Smith Reynolds, et al.” (affirmed on appeal, 208 N. C., 578), and also by decree of tbe Circuit Court of Baltimore City, Maryland, rendered on tbe 12th day of March, 1936, in a suit entitled “Safe Deposit and Trust Company of Baltimore, et al., v. J. Edward Johnston, et al.”

II. Z. Smith Reynolds Foundation, Incorporated:

It is ascertained that tbis corporation was duly organized under tbe laws of tbe State of North Carolina on August 21, 1936, solely for tbe accomplishment of charitable works in tbe State of North Carolina. It was organized as a part of tbe plan of tbe Zaebary Smith Reynolds Trust, and is its principal beneficiary. It has performed its corporate functions, continuously since its organization, by making grants for charitable purposes within, the State of North Carolina, and will be entitled to receive the income directed to be paid to it by the terms of the Zachary Smith Eeynolds Trust so long as it continues to perform its corporate functions and to comply with the terms and conditions set out in the Trust Indenture.

This Indenture creating the Zachary Smith Eeynolds Trust provides, inter alia, that all questions pertaining to its validity, construction and administration shall be determined under, and in accordance with, the laws of the State of North Carolina. And further, that the trustees shall “hold the Trust Fund in perpetuity,” and pay the net income thereof “in quarterly installments, to the Foundation, for charitable purposes in the State of North Carolina.” It also expresses the desire of the grantors that “no change shall be made in the name of The Foundation or its successor, after thé death of the survivor of the Grantors. If such change is made thereafter, no further payments shall be made to said corporation hereunder.”

It is provided in the charter of The Foundation that it “shall have perpetual existence,” and it was determined below that it is a valid and subsisting, charitable corporation.

III. The Trustees or Wake Forest College:

As one of the contracting parties, “The Trustees of Wake Forest College” is declared to be a non-profit, educational institution existing and performing its functions with the support of the Baptist denomination in the State, operating through its local churches and the Baptist State Convention of North Carolina, and as such is a charitable corporation under the laws of the State of North Carolina.

It was originally incorporated by Act of Assembly in 1833, “for the purpose of educating youth, and for no other purpose whatever.” In 1839 the name of the corporation was changed to “The Trustees of Wake Forest College,” and it was then empowered to confer degrees and marks of literary distinction such as are usually conferred in colleges and universities. In 1923 its existence was made perpetual. Its charter was again amended in the Fall of 1946, authorizing the removal and relocation of Wake Forest College in the City of Winston-Salem, or its environs.

Its status as an eleemosynary institution is not affected by the fact that it derives a part of its operating costs from pay students. The balance of these costs — -the sine quo non to its maintenance — comes from endowments, gifts, and Baptist State Convention appropriations. City of Raleigh v. Trustees of Rex Hospital, 206 N. C., 485, 174 S. E., 278.

IY. Trustees of the Baptist State Convention:

It is established that the Trustees of the Baptist State Convention of North Carolina was chartered by Act of Assembly in 1893 and invested “with all the rights, powers, and privileges allowed religious societies by the laws of the State.” It is a charitable corporation under the laws of North Carolina. The Convention designates the Trustees of Wake Forest College by election or appointment. It has approved the contract between The Foundation and the Trustees of Wake Forest College and has assumed its obligations thereunder.

V. Safe Deposit and Trust Company of Baltimore, Trustee:

It is made to appear that the Safe Deposit and Trust Company is the corporate, and now sole, trustee of the Zachary Smith Eeynolds Trust with power and authority to act as such.

VI. Contract Between The Foundation and Wake Forest College:

It was revealed on the hearing that the agreement between The Foundation and Wake Forest College, above set out, was duly executed on November 16, 1946, first having been authorized by the Trustees of The Foundation, The Trustees of Wake Forest College, and the Baptist State Convention of North Carolina.

It was further made to appear that the proposal to move Wake Forest College to a site in or near Winston-Salem had been under consideration and negotiation by all the parties hereto for quite awhile; that definite proposal was made by the plaintiff corporation and its Trustees to the Baptist State Convention of North Carolina in a letter dated July 11, 1946, and that thereafter the contract of November 16, 1946, was duly approved, signed, sealed and delivered.

VII. JUDGMENT OF THE SUPERIOR COURT:

We come now to the judgment entered below and the exceptions taken thereto by the Safe Deposit and Trust Company of Baltimore, Trustee. This corporation is the sole trustee of a charitable trust. It is contemplated by the agreement here submitted for consideration that it will pay out large sums of money, yea all of its foreseeable future income, for the purposes therein designated, and it is fully justified in seeking a final determination of the matter. Indeed, the Baptist State Convention, in session duly assembled, directed that the validity and effectiveness of the agreement, and particularly paragraphs 3 and 5 thereof, be established and made certain by a judgment of the courts of the State of North Carolina. This has been done in the judgment below. All of the parties are keenly interested in tbe outcome o£ this adjudication. The issues are large and the considerations are great on both sides.

VIII. EXCEPTIONS TO THE JUDGMENT:

The appellant’s first exception is to the determination that “The Trustees of Wake Forest College” is a charitable corporation under the laws of North Carolina. The exception seems not to be pressed on brief. Hence, as the determination is well supported by authority, West v. Lee, 224 N. C., 79, 29 S. E. (2d), 31; Trust Co. v. Ogburn, 181 N. C., 324, 107 S. E., 238; Griffin v. Graham, 8 N. C., 96, the exception will be overruled pro forma.

Exception No. 2: The appellant excepts because it is determined herein that the Zachary Smith Reynolds Trust is a valid and subsisting, charitable trust under the laws of this State and that The Foundation is a valid and subsisting, charitable corporation duly organized and existing under the laws of the State of North Carolina, and, as such, is entitled to receive the income from the Zachary Smith Reynolds Trust as therein provided for the accomplishment of charitable works in the State of North Carolina; whereas the same determinations have heretofore been made in prior litigation, and the doctrine of res' judicata forecloses any further consideration of the matters. Undoubtedly, the prior adjudication settled the matters then before the court, but as the same conclusion is reached herein, it can do no harm to declare it again. If one declaration suffice, two ought to make it doubly sure. Anyhow, the matters may now be regarded as settled. The exception seems feckless.

Exception No. S: The appellant excepts to the determination that The Foundation has full power and authority under the provisions of the Zachary Smith Reynolds Trust and under its charter and by-laws, and in accordance with the laws of the State of North Carolina, to enter into the contract with The Trustees of Wake Forest College, agreeing to pay its annual net income up to the sum of $350,000 to Wake Forest College in perpetuity as provided in the contract, and subject to each and all of the conditions thereof.

The request for this determination was thought necessary because of certain expressions used by this Court in the cases of Woodcock v. Wachovia Bank & Trust Co., 214 N. C., 224, 199 S. E., 20, and Gaston County United Dry Forces, Inc., v. Wilkins, 211 N. C., 560, 191 S. E., S. It is to be noted, however, that the plan envisioned by the creators of the Smith Reynolds Trust called for (1) the organization of a corporation, under the name of Z. Smith Reynolds Foundation, solely for the accomplishment of charitable works in the State of North Carolina; and (2) the creation of a Trust for charitable purposes in the State of North Carolina, such purposes to be accomplished by the transfer of all the income of the Trust, not directed to be accumulated, to The Foundation as its chief beneficiary. This arrangement successfully meets the objections pointed out in the Woodcock and United Dry Forces Cases, and distinguishes it from them. Williams v. Williams, 215 N. C., 739, 3 S. E. (2d), 334; Miller v. Atkinson, 63 N. C., 537. Moreover, the recent legislation on the subject, G. S., 36-21, and House Bill No. 678, Session 1947, ought to suffice to quiet the matter. But if additional assurance be needed, it may be found in the following cases: West v. Lee, 224 N. C., 79, 29 S. E. (2d), 31; Humphrey v. Board of Trustees, 203 N. C., 201, 165 S. E., 547; Whitsett v. Clapp, 200 N. C., 647, 158 S. E., 183; Benevolent Society v. Orrell, 195 N. C., 405, 142 S. E., 493; Keith v. Scales, 124 N. C., 497, 32 S. E., 809; School for D. D. v. Institution for D. D., 117 N. C., 164, 23 S. E., 171; University v. Gatling, 81 N. C., 508; S. v. Gerard, 37 N. C., 210; Griffin v. Graham, 8 N. C., 96.

The rules against perpetuities do not apply to charitable trusts. Penick v. Bank, 218 N. C., 686, 12 S. E. (2d), 253; Williams v. Williams, supra; Jones v. Habersham, 107 U. S., 179, 27 L. Ed., 401. By their very nature they look to perpetuity. The Zachary Smith Reynolds Trust is a perpetual trust. The charter of The Foundation provides that it “shall have perpetual existence,” and the corporate life of The Trustees of Wake Forest College, by amendment to its charter, is made perpetual. There is no inherent barrier to the contract here under consideration.

Exception No. J/.: The appellant excepts to the determination that paragraphs 2, 3, 4 and 5 of the contract are valid and enforceable. The principal objection urged to this determination is that the net income of The Foundation up to $350,000 per annum is to be accumulated until July 1, 1952, and then paid over to Wake Forest College and that thereafter The Foundation is to pay to the College annually, in perpetuity, its annual net income up to the sum of $350,000.

It is contended that the charter of The Foundation and the Indenture creating the Trust indicate by their terms that the disposition of the income from the Trust to The .Foundation is to be made from time to time, and not at any one time in perpetuity. Section 7 of the by-laws of the Foundation further provides that its Trustees shall “at each quarterly meeting . . . designate the charitable purposes or the beneficiaries” for which appropriations are to be made. It is additionally urged as objections that there is no requirement that the College shall continue its operations as a charitable or educational institution, and that it is not clear whether the payments of the annual net income in perpetuity are to be cumulative. The present determination concerns itself primarily with the validity of the contract. Any ambiguity in its terms, short of a fatal indefiniteness, goes to its meaning, rather than to its validity. More about this anon.

Tbe argument of tbe appellant would seem to overlook tbe fact that Tbe Foundation is to remain a live corporation and is not to change its name. It bas full power and authority to 'accept gifts from any source, provided they do not conflict with its charitable purposes, and it bas express authority to enter into tbe contract here submitted for consideration. Tbe amendment to tbe charter of Tbe Trustees of Wake Forest College specifically authorizes it to enter into such a contract in contemplation of tbe removal of Wake Forest College and its relocation in tbe City of Winston-Salem, or its environs. Tbe grant of power to make s contract carries with it tbe authority to fulfill its obligations. Thomas v. Baker, ante, 226. It is a contradiction in law to say that one may agree and yet not perform. Performance is tbe fulfillment of an obligation or a promise kept. Bank v. Corl, 225 N. C., 96, 33 S. E. (2d), 613. Here, both parties to tbe contract have express authority to make it. Both have express power to carry it out. To say there is no requirement that Wake Forest College shall continue its operations as a charitable or educational institution is to disregard tbe purpose of its creation. It must either operate under its charter or surrender it. Moreover, it is one of tbe conditions of tbe contract that Wake Forest College shall maintain its status as a charity to tbe end that payments may lawfully be made to it by Tbe Foundation. Tbe exception is not well founded.

Exception No. 5: Tbe appellant excepts to tbe determination that tbe contract, and each and every provision thereof, is in conformity with tbe provisions of tbe Zachary Smith Reynolds Trust, and that Tbe Foundation will be entitled to continue to receive tbe income from tbe Trust as provided in the Indenture creating it and to pay such income to Tbe Trustees of Wake Forest College as provided in tbe contract.

What is said above under Exception No. 4 applies equally to tbe exception here. Neither is well taken.

Exception No. 6: Tbe appellant excepts to tbe determination that tbe contract imposes upon Tbe Foundation tbe obligation to retain its present name without change, so as to continue to receive tbe income of tbe Zachary Smith Reynolds Trust during tbe existence of the contract with The Trustees of Wake Forest College.

This determination rests upon tbe familiar principle that “as a man consents to bind himself, so shall be be bound.” Elliott on Contracts, Vol. 3, Sec. 1891. It is not only implicit, but also explicit, in tbe contract that tbe parties agree to bind themselves to its performance. To carry out its part of tbe agreement, Tbe Foundation will need tbe income of the Zachary Smith Reynolds Trust which it is under obligation to receive in its present name, without change, for tbe accomplishment of charitable works in tbe State of North Carolina. Tbe Foundation, therefore, is under a double obligation to see that “no change shall be made in tbe name of Tbe Foundation.” It is not to be assumed that a charitable organization will deliberately bobble itself or to seek, in a disingenuous manner, to avoid its obligations. It bas brought this proceeding, not in-an effort to get out of its engagements, but as an earnest of its willingness to fulfill them. It is not seeking to ascertain whether it can evade its contracts, but whether it can carry them out. The determination is' a counterpart to the prior determination that Wake Forest College agrees to maintain its status as a charitable organization. The covenants are mutual in intent and purpose, and the determinations are complementary. The exception is not sustained.

Exceptions Nos. 7, 8 and 9: These exceptions are addressed to determinations in respect of the authority of the contracting parties to make the contract and its enforceability, which are repetitious of prior determinations, and they seem to have been made out of the abundance of caution. The exceptions are overruled on the basis of former rulings.

Exception No. 10: The appellant excepts to the determination that “neither the contract nor any provision thereof” is in conflict with Section 7 of the by-laws of The Foundation, which is construed as applicable hereafter only to funds not required to be paid to The Trustees of Wake Forest College under the terms of the contract. (Reference is made-to Sec. 7 of the by-laws under Exception No. 4 above.)

This determination harmonizes the provisions of the contract with the stipulations and conditions contained in the Indenture creating the Trust and the charter of The Foundation. In matters of this kind, conflicts are not to be sought, but avoided, where it is permissible to do so. The determination accords with approved practice, and the exception to it is not sustained. Meisenheimer v. Alexander, 162 N. C., 226, 78 S. E., 161; 13 Am. Jur., 290.

Exception No. .11: The appellant objects to the determination that paragraph 3 of the contract is not a cumulative obligation, and, in the event the annual net income of The Foundation, in any one year, while the contract is in effect, shall be less than the sum of $350,000 per year, only the annual net income of that year shall be payable to The Trustees of Wake Forest College, and The Foundation shall not be under any obligation in any other year to make up any deficiency out of income in any other year.

Arguments have been advanced by the appellant, not only in respect of. the annual net income accruing from and after July 1, 1952, but also for the five-year period immediately prior thereto. This seems to be in excess of the objections advanced and argued below. Furthermore, it is difficult to perceive wherein this determination vitally affects the appellant. It is not challenged by either The Foundation or Wake Forest College. Presumably, the objection is based on the assumption that the contract is invalid and unenforceable. Having held otherwise in respect of the validity and enforceability of the contract, it follows that the exception here on tbe part of the appellant must be overruled. No doubt other questions will arise in connection with the application and operation of some of the provisions of the contract, which were not presented on the hearing in the court below, and, of course, are not before us. Sufficient unto the day are the problems thereof. “If the trustee should fail to carry into effect the trust, it will be time enough to invoke the supervision of the court.” Trust Co. v. Ogburn, 181 N. C., 324, 107 S. E., 238.

Exception No. 12: The appellant objects to the determination that the contract is binding on The Foundation and The Trustees of Wake Forest College; the direction to each to perform its obligations thereunder, and the specific direction to The Foundation not to change its name while the contract is in force.

The authority for this part of the judgment is to be found in G. S., 1-255. It follows as a necessary corollary to the determinations previously made herein. The exception is not sustained.

Exception No. 13: The appellant objects to the determination that the net income payable to The Foundation, pursuant to the provisions and conditions of the Indenture creating the Trust, is properly payable to the Foundation and is to be disposed of by The Foundation in accordance with its agreement with The Trustees of Wake Forest College in the amount therein provided.

This conclusional determination is but a shorthand statement in summary of what has gone before. It follows necessarily from the determinations previously made. The exception is not sustained.

Exception No. 1J¡.: The appellant objects to the determination that the Baptist State Convention of North Carolina, while not a party to the contract, has the power and authority to perform all the acts described in Paragraph 5 (c) of the agreement.

This determination is warranted by the terms of the contract and particularly the 8th paragraph thereof. The Baptist State Convention has a vital interest in the agreement and is so closely allied with it as to be a bearer of some of its burdens and a sharer of some of its benefits. It has approved the contract and assumed its obligations thereunder. It is a party to this proceeding. The exception is not sustained.

Finally, after all is said and done the case comes to a relatively narrow compass. Is the contract submitted for adjudication valid and enforceable? The trial court thought it was. We approve. Wake Forest College has had a long and honorable career, and whether it nestles in a forest of Wake or stands on a knoll in Forsyth, its mission will remain a quest for truth and a crusade for simple right. We would not deny to this great institution and to those whose faith and good works have made it possible, this vista of a new dawn and this vision of a new hope.

The determinations made and conclusions entered below will be upheld.

Affirmed.