Bennett v. Attorney General

Annotate this Case

96 S.E.2d 46 (1957)

245 N.C. 312

W. L. BENNETT, Francis E. Liles, Hal W. Little and W. Bryan Moore, Trustees of the Lillie M. Bennett Memorial Foundation, v. The ATTORNEY GENERAL of the State of North Carolina and Clifton Clement Bennett.

No. 451.

Supreme Court of North Carolina.

January 11, 1957.

*53 Clifton Clement Bennett, Wadesboro, pro se.

Frank S. Katzenbach, III, Trenton, N.J., of counsel for defendant, appellant.

Taylor, Kitchin & Taylor, Wadesboro, for plaintiffs, appellees.

WINBORNE, Chief Justice.

Let it be noted at the outset that the record and case on appeal do not contain any express exception to any ruling of the trial judge. Nevertheless the appeal to the Supreme Court is itself an exception to the judgment. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223; E. L. Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271.

Indeed an exception to the judgment rendered raises the question as to whether error in law appears upon the face of the record. See E. L. Lowie & Co. v. Atkins, supra; Horn v. Sandhill Furniture Co., 245 N.C. 173, 95 S.E.2d 521, and cases cited. And the record, in the sense here used, refers to the essential parts of the judgment roll, such as pleadings, verdict and judgment. See Thornton v. Brady, 100 N.C. 38, 5 S.E. 910, and citations of it as shown in Shepard's North Carolina Citations. And a judgment, in its ordinary acceptation, is the conclusion of law upon facts admitted or in some way established. Gibson v. Central Mfrs' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320; also E. L. Lowie & Co. v. Atkins, supra.

Hence in the light of these principles, applied to the case in hand, is there upon the face of the record error in matters of law?

Appellant first assigns as error the ruling of the trial judge, in determining that the relief prayed by the intervening defendant is beyond the scope of the Declaratory Judgment Act, and hence the court did not have jurisdiction to consider his claim. The ruling finds support in decisions of this Court. See Farthing v. Farthing, 235 N.C. 634, 70 S.E.2d 664, 665, and cases cited.

In this connection it is provided under the Declaratory Judgment Act, G. S. § 1-253, that "courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations * * *"; and it is also provided in G.S. § 1-254 of said Act that "any person interested under a deed, will, written contract or other writings constituting a contract, * * * may have determined any question of construction or validity arising under the instrument * * * and obtain a declaration of rights, status, or other legal relations thereunder * * *." And this Court, in interpretation of these statutes, has declared in the Farthing case, supra, in opinion by Barnhill, J., later C. J., that "The court below was without original jurisdiction to entertain this action to nullify any part of the duly probated will which is the subject matter of this action * * *." And, continuing, it is there further stated that "The Declaratory Judgment Act, G.S. Ch. 1, Art. 26, is designed to provide an expeditious method of procuring a judicial decree construing wills, contracts, and other written instruments and declaring the rights *54 and liabilities of the parties thereunder. It is not a vehicle for the nullification of such instruments. Nor is it a substitute or alternate method of contesting the validity of wills." See also Howland v. Stitzer, 231 N.C. 528, 58 S.E.2d 104.

Appellant also contends that the trial judge erred in construing the provisions contained in paragraph 19-1 of the Will as having force and effect in an event other than a cessation of operating the aged ladies' home after it had once been created and maintained. That is, it is the contention of appellant that it is clearly "the intent of the testatrix as expressed in her will, that a Lillie M. Bennett Memorial Foundation is to be created only in connection with and for the purpose of establishing a home for aged women."

This contention is untenable. See Woodcock v. Wachovia Bank & Trust Co., 214 N.C. 224, 199 S.E. 20, where in a comprehensive opinion Devin, J., later C. J., treats of the subject of charitable trusts. There this Court held that a charitable trust may be created for almost any purpose that tends to promote the well-being of social man unless forbidden by law or public policy. Indeed it is there said that indefiniteness of beneficiaries is a characteristic of charitable trusts, and that the designation of the purpose of the trust to members of a class, with power in the trustees to select individuals of that class as specific beneficiaries is sufficient. Moreover, the declared policy of the State of North Carolina is "that gifts, transfers, grants, bequests, and devises for * * * charitable, or benevolent uses or purposes * * are and shall be valid, notwithstanding the fact that any such gift, transfer, grant, bequest, or devise shall be in general terms," G.S. § 36-23.1, and it is specified that this section shall be construed liberally to effect the policy therein declared. See also G.S. § 36-23.1, subd. 2.

In the light of these principles and declarations, the provisions of the Will of Lillie M. Bennett in respect to the creation of the Lillie M. Bennett Memorial Foundation clearly constitute a valid charitable trust. The intent and meaning is manifest.

Moreover, the provisions of the paragraph 19 of the Will of Lillie M. Bennett are sufficiently broad and explicit to authorize the Trustees to refrain from dissipating the estate by remodeling and opening the Old Home, and to authorize them to sell same, and devote the proceeds to purposes within the purview of the provisions of the trust, as so created.

Therefore this Court holds that error in matter of law upon the face of the record is not made to appear. Hence the judgment from which appeal is taken is


JOHNSON, J., not sitting.

RODMAN, J., took no part in the consideration or decision of this case.