Annotate this Case

182 S.E.2d 356 (1971)

279 N.C. 265

WACHOVIA BANK AND TRUST COMPANY et al., Petitioners, v. Robert MORGAN, Attorney-General of the State of North Carolina, et al., Respondents.

No. 109.

Supreme Court of North Carolina.

July 30, 1971.

*359 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Christine Y. Denson for Attorney *360 General Robert Morgan, respondent appellant.

Hollowell & Ragsdale by Edward E. Hollowell and Richard B. Conely, Raleigh, for North Carolina Hospital Assn., respondent appellee.

Womble, Carlyle, Sandridge & Rice by W. P. Sandridge, Jr., Winston-Salem, for petitioners appellees.

MOORE, Justice.

Only one question is presented by this appeal: Is it proper for the trustees to take the additional cost of administration out of the trust income rather than out of the commissions allowed the trustees under the terms of the will?

Although there is no appeal from the judgment of Judge Lupton dated 25 January 1971 on the question of whether cy-pres is proper, the Superior Court had ample authority to alter the administrative provisions of the trust to accomplish the purpose of the testatrix. The cy-pres doctrine is the rule which courts of equity use when a gift given for a particular charitable purpose cannot be applied according to the exact intention of the donor. In such cases, the court will direct that the gift be applied as nearly as possible in conformity with the original purpose and intent of the testator. Cy-pres literally means "as near as possible." See generally, IV Scott on Trusts § 399 (3d ed., 1967) [hereinafter cited as Scott].

Before 1 October 1967 North Carolina rejected the cy-pres doctrine as such, while upholding modification of charitable trust provisions under the court's general equitable power to supervise trust administration. See Note, Cy-pres Enacted in North Carolina, 46 N.C.L.Rev. 1020 (1968). As Justice Ervin stated in Watts Hospital v. Board of Comrs. of Durham, 231 N.C. 604, 58 S.E.2d 696:

"Equity looks at substance, and not form. When subsequent changes in conditions not anticipated by the creator of a trust threatened the destruction of the trust and the loss of the trust estate, a court of equity has power to modify the terms of the trust to the extent necessary to preserve the trust estate and to effectuate the primary purpose of the creator of the trust. Moses H. Cone Memorial Hospital v. Cone, 231 N.C. 292, 56 S.E.2d 709; Redwine v. Clodfelter, 226 N.C. 366, 38 S.E.2d 203; Duffy v. Duffy, 221 N.C. 521, 20 S.E.2d 835; Penick v. Bank of Wadesboro, 218 N.C. 686, 12 S.E.2d 253; Cutter v. American Trust Co., 213 N.C. 686, 197 S.E. 542; 54 Am.Jur., Trusts, section 284. This equitable jurisdiction resided in the court below; for the Superior Court possesses all of the powers exercised by it as a court of equity prior to 1868. McIntosh: North Carolina Practice and Procedure, in Civil Cases, section 62."

The 1967 Charitable Trusts Administration Act, now codified as G.S. § 36-23.2 provides:

"Charitable Trusts Administration Act. (a) If a trust for charity is or becomes illegal, or impossible or impracticable of fulfillment or if a device (sic) or bequest for charity, at the time it was intended to become effective is illegal, or impossible or impracticable of fulfillment, and if the settlor, or testator, manifested a general intention to devote the property to charity, any judge of the superior court may, on application of any trustee, executor, administrator or any interested party, or the Attorney General, order an administration of the trust, devise or bequest as nearly as possible to fulfill the manifested general charitable intention of the settlor or testator. In every such proceeding, the Attorney General, as representative of the public interest, shall be notified and given an opportunity to be heard. This section shall not be applicable if the settlor or testator has provided, either directly or indirectly, for an alternative plan in the *361 event the charitable trust, devise or bequest is or becomes illegal, impossible or impracticable of fulfillment. However, if the alternative plan is also a charitable trust or devise or bequest for charity and such trust, devise or bequest for charity fails, the intention shown in the original plan shall prevail in the application of this section. "(b) The words `charity' and `charitable,' as used in this section shall include, but shall not be limited to, any eleemosynary, religious, benevolent, educational, scientific, or literary purpose."

This section lends statutory sanction and authority to the long-established policy adopted by this Court that gifts for charitable purposes should not fail because of unforeseen events, but that the Court should assist in carrying out charitable purposes.

In the present case the uncontradicted evidence shows that funds received by the various hospitals under the hospital trust fund in the will are used for general hospital purposes and not for charity patients, and such income has the effect of only subsidizing the government by reducing the share which the government must contribute, or of subsidizing private patients. The contribution from this trust under the present plan benefits (1) government, and (2) the paying patient, but fails to benefit the non-paying patient. Since the trust provisions no longer serve the intended purpose of providing medical and hospital services to people who cannot afford to pay for such services, and since the will itself contained no alternative plan, the court could order an administration of the trust which would as nearly as possible fulfill the general charitable intention of the testatrix. G.S. § 36-23.2; Watts Hospital v. Board of Comrs. of Durham, supra.

The Attorney General, as provided by G.S. § 36-23.2, appeared in the proceeding as a representative of the public interest, and took no exception to the provisions of the judgment which called for an application of the cy-pres doctrine to Mrs. Reynolds' will, nor did he take issue with those portions of the judgment which provide that the trustees should have available an Advisory Board and an administrative staff, and that both the staff and committee should be paid reasonable salaries and expenses. The Attorney General only questions that portion of the judgment authorizing the deduction of these additional expense items from trust income.

Mrs. Reynolds' will was executed 26 July 1934. She died on 23 September 1946. Mrs. Reynolds, as well as her husband, was a person of means. The value of her trust estate as of 7 December 1970 was $24,623,941.25. In her will Mrs. Reynolds provided in Section Seven 5:

"5. As compensation for its services as one of my trustees, the Wachovia Bank & Trust Company shall retain no commission on the principal but shall retain 5% of the gross annual income up to $10,000 and 2½% of the gross annual income in excess of $10,000. As compensation for their services, the individuals serving as trustees hereunder shall receive annually, to be divided between or among them, a sum equivalent to the compensation received and retained by the Wachovia Bank & Trust Company for its services as trustee, which compensation to said individuals shall be in addition to and not in diminution of that of the Wachovia Bank & Trust Company."

The three individual trustees named by her were her husband, William N. Reynolds; her nephew, John C. Whitaker; and her secretary, L. D. Long. The will provided in case of the death of any individual trustee that the remaining individual trustee or trustees, together with the corporate trustee, should continue to discharge their duties. W. N. Reynolds is now dead. John C. Whitaker and L. D. Long now serve as individual trustees with Wachovia Bank and Trust Company. Upon the *362 death of the individual trustees, Wachovia Bank and Trust Company will continue to serve as sole trustee.

G.S. § 28-170 details the commissions allowable to executors, administrators, testamentary trustees, and other fiduciaries, limiting in general the compensation of such fiduciaries to 5 percent of the receipts and disbursements. The statute provides, however, that "* * * nothing in this section shall prevent the clerk allowing reasonable sums for necessary charges and disbursements incurred in the management of the estate."

In this case the trustees have received only the compensation provided for by Mrs. Reynolds. For the year ending 2 October 1970 the corporate trustee received the sum of $23,166.08; the individual trustees received $22,518.53. In addition to the hospital trust, the will provided that one-fourth of the net income from the trust was to be used for the benefit of the poor and needy of the city of Winston-Salem and the County of Forsyth, North Carolina. The trustees have devoted substantial time to the performance of their duties as trustees in disbursing this part of the trust income.

The Attorney General contends that for some 15 years or more the trustees have been handsomely rewarded for very little effort expended in connection with this trust, and, therefore, any additional cost incurred in the administration of the trust should be deducted from their commissions. The answer to this contention is, of course, that Mrs. Reynolds provided for this compensation in her will. She knew the duties imposed upon the trustees by the terms of the will and the compensation which she desired to pay for the performance of those duties. She had the right to prescribe any compensation she wished. Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151. It should be noted that the corporate trustee received only 5 percent commission on the first $10,000 of trust income and 2½ percent commission on all income above $10,000, or approximately one-half that authorized by statute. It should also be noted that her personal trustees included her husband, her nephew, and her long-time secretary, and that it was her desire that they share in the commissions paid for life.

Ordinarily, where the will expressly stipulates the compensation to be allowed an executor, the executor, by qualifying, is deemed to have accepted a bargain and is bound thereby even though the will stipulates compensation in a sum less than the 5 percent maximum allowed by statute. Lightner v. Boone, 221 N.C. 78, 19 S.E.2d 144. In the instant case, upon the death of the remaining individual trustees, Wachovia Bank and Trust Company will continue to serve as sole trustee and will then only be entitled to the commission provided in the will for the corporate trustee. None of the trustees are now asking for additional compensation. They are only asking that necessary expenses, which will be incurred due to changed conditions and changed duties, be paid from trust income rather than from commissions provided for the trustees by the terms of the will. For the year ending 2 October 1970 the trustees received commissions of approximately $45,000. The court has found that due to a change in conditions it will be necessary for the trustees to create an Advisory Board and employ an individual to assist the trustees in the administration of the trust. The court has further found that a reasonable annual allowance for the expense to be incurred by this Advisory Board and employees is $33,825. If this amount should be deducted from the approximately $45,000 annual commissions payable to the trustees under the terms of the will, the trustees, corporate and individual combined, would then receive approximately $11,175 for carrying out the duties as prescribed by the will and the additional duties and responsibilities imposed upon the trustees by the judgment of the courtfar less than the amount Mrs. Reynolds provided they should receive. The *363 judgment of the court does not relieve the trustees of their ultimate responsibility for the proper administration of the hospital trust, and the trustees should not be expected to accept the drastic reduction proposed by the Attorney General. The trial court specifically so found in Paragraph III in the judgment:

"The Trustees shall not be required to exercise discretion in the application of trust income unless they are reimbursed for the reasonable cost of employing assistance, compensating members of an Advisory Board, and meeting other reasonable expenses in administering the Hospital Trust in accordance with the provisions of this judgment."

The court further found that the trust income could best be applied to meet the purposes desired by Mrs. Reynolds through the advice of this Advisory Board assisted by a full-time experienced director, and that without such assistance the trust will be lacking in adequate direction. Additional expense was properly authorized to provide this direction. Hickson Lumber Co. v. Pollock, 139 N.C. 174, 51 S.E. 855; Kelly v. Odum, 139 N.C. 278, 51 S.E. 953.

G.S. § 28-170, after providing for commissions allowable to trustees, provides that reasonable sums may be allowed for necessary charges and disbursements incurred in the management of the estate. Under this statute, if additional expenses are incurred in the administration of the estate which are for (1) services to the estate, (2) are reasonably necessary, and (3) not excessive, they are proper charges. Lightner v. Boone, supra; Kelly v. Odum, supra. Although generally a trustee cannot properly delegate to another duties he ought reasonably be expected to personally perform, he may properly delegate authority to do particular acts and consult with and take advice from others, provided he makes the final decision in the matter. Belding v. Archer, 131 N.C. 287, 42 S.E. 800; II Scott §§ 171 and 171.2. Under the judgment in this case, final responsibility rests upon the trustees. See Restatement (Second), Trusts § 171 (1959).

Where special skills are required a trustee is entitled to purchase such skills at the expense of the trust estate. II Scott § 171.2; III Scott § 188.3. Certainly, the trustees in this case are not expected to be skilled hospital administrators, physicians, or medical care experts. The trustees, therefore, should be allowd to purchase such skills in these and other related fields at the expense of the trust in order to accomplish the trust purpose. See Restatement (Second), Trusts § 198 (1959); 90 C.J.S. Trusts § 270 (1955).

In the case of In re Trusts Created by Butler, 223 Minn. 196, 26 N.W.2d 204 (1947), the Court stated:

"Whether the trustee is reasonably justified in retaining the services of an expert at the expense of the estate must be judged according to the test of reasonableness in the light of the peculiar circumstances of each case. The leading case is that of Hagedorn v. Arens, 106 N.J.Eq. 377, 383, 384, 150 A. 4, 8, wherein the court, in determining that the trustee was justified in employing expert accountants for certain purposes by reason of the complicated situation involved, correctly stated the law as follows: "`It is true that under ordinary circumstances the commissions allowed to a trustee or other accountant are intended to cover the work and expense of keeping his books and preparing his account, and that payments made by the trustee to bookkeepers, accountants or lawyers for performing these services which the trustee is supposed to perform for himself, cannot be allowed as items of discharge in his account. * * * "if he [the fiduciary] chooses to employ others to do his work he must pay them himself." "`What, however, is the fiduciary's work? Certainly work which is beyond *364 the ordinary or reasonably to be expected skill and ability of such a fiduciary, cannot be deemed his work, and he will be entitled to obtain the skilled services of experts where necessary or advisable, and to have their compensation paid out of the estate; and indeed would probably be censurable, and perhaps personally liable, if he failed to do so.'"

Accord, Parkinson v. Murdock, 183 Kan. 706, 332 P.2d 273 (1958); In re Sellers' Estate, 31 Del.Ch. 158, 67 A.2d 860 (1949); Ewing Ind. Exs. v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627 (1926), reh. den. 1926; 54 Am.Jur.Trusts § 360 (1945).

We hold that the trial court correctly allowed the trustees to employ skilled assistance in the administration of the trust created by Mrs. Reynolds, and to charge the reasonable cost for such assistance to trust income.

The judgment of the Superior Court is affirmed.