37 N.C. 9 | N.C. | 1841
We are decidedly of opinion that the demurrer in this case was properly overruled. There can be no question but that the purpose to which the testator has appropriated the funds, of which an account is demanded by this bill, the establishment "of a free school or schools for the benefit of the poor of Duplin County," is one approved by the law as a public charity; and it is too late to contend, since the decision in Griffin v.Graham,
It seems to us also very clear, upon an examination of the will, that the testator has devoted to this public charity, not merely what might remain of the money, bonds, notes and accounts *7 that should be on hand at the time of his death, but thenet proceeds of all his estate. The will commences with the injunction that his debts and funeral expenses shall be satisfied out of his estate by his executors. It proceeds to give particular directions for the sale of his various tracts of land, which he carefully enumerates and describes. It then makes a specific bequest of a negro to each of his nephews, Robert Dickson and James McGowen. The testator then gives a legacy of $500 to his nephew, James Dickson, to be paid in notes, if so much in possession at the time of his death, and if not, then to be raised out of the sales of his estate, and afterwards proceeds to give special directions as to the sale of the residue of his negroes, and of the remaining part of his estate, consisting of "horses, cattle, hogs and sheep, household and kitchen furniture of every description, and all kinds of crop and produce." He orders that his executors shall collect the money arising from the sales as soon as may be, and that "should there be any money, bonds, notes or accounts on hand at the time of his decease," the executors shall accounts for them, and concludes the dispositions of his will thus: "And after paying out all expenditures that may have accrued heretofore or may hereafter accrue, the net proceeds are then to be kept and put by my executors to the use of a free school or schools for the benefit of the poor of Duplin County." The construction set up on the part of the defendant is too absurd to receive our sanction. It supposes, in the first place, that the testator has ordered the great bulk of his property to be sold and made no disposition of the proceeds. In the second place, that he has directed a free school or (17) schools to be established out of a fund, in regard to which he doubted whether any such would exist at his death, and which, at all events, he supposed would be inadequate to pay the legacy of $500 specifically charged upon it. No one, we think, can reasonably doubt but that by the term "net proceeds" he meant the net proceeds of the subject-matter of his will — all the property embraced therein; that is to say, all that should remain thereof after satisfying his debts, the previous legacies and the expense of executing the will.
The remaining ground of demurrer is equally unfounded. The trust admitted by the demurrer is an express, direct trust, confessedly open and unexpected. No length of time operates as a bar to a demand by the cestuique trust against the trustee founded on such a trust, and therefore no length of time can be pleaded or made the ground of demurrer to such a demand. Falls v. Torrance,
This opinion must be certified to the court below, with directions to proceed with the cause; and there should be a judgment here against the appellant and his sureties for the costs of this Court. Ordered and decreed accordingly.
PER CURIAM.
Cited: Holland v. Peck, post, 260; Miller v. Atkinson,
(18)
