| N.C. | Jun 5, 1879
Upon the clause of the will set out in the opinion, the Court below held that the plaintiff was entitled to the bonds mentioned as an endowment of as many scholarships as the interest thereon from year to year may be sufficient to pay for at the then current rates of tuition at the University, and no more, the students who are to receive the benefits thereof to be selected as set forth in said clause; and adjudged that defendant executors pay the costs of the proceeding. From which ruling the defendants appealed. This is a controversy submitted without action upon a case agreed under C. C. P., Sec. 315, the purpose of which is to recover a specific legacy given in the will of B. F. Moore, deceased, and to determine the conditions on which it is to be received.
The testator, in clause 29 of his will, bequeathes as follows: "I give to the trustees of the University of North Carolina five bonds of the United States, each bond of one thousand dollars, issued under the act of 14 July, 1870, and 20 July, 1871, payable in coin and redeemable *355 at the pleasure of the government after 1 May, 1881, numbered respectively 14,562, 14,563, 15,775, 16,485 and 16,486, and bearing 5 per cent interest, payable quarterly on the first days of February, (510) May August and November. Said bonds, which are now registered in my name, are to be registered in the name of the trustees of the University of North Carolina. The interest which may become due on said bonds after my decease shall be received by the said University corporation as it may become payable, and shall be appropriated exclusively for the purpose of defraying the tuition at the University of my sons, or of such students and for such periods of time as my children or their lineal heirs may designate; and in case of any disagreement between them as to the choice of the persons to be selected, or in case no selection be made as already provided, the selection shall be determined by the trustees of the University, or the executive committee thereof: Provided, however, that any student who may be selected in the manner prescribed shall be subject to the same and like rules and regulations for their government as are provided generally for the government of the students of the University."
"It is expressly provided as one of the conditions of this donation, that the fund hereby donated shall not be subject, directly or indirectly, to any debt now due by the University, or which may hereafter become due by it; and it is provided also, that if at any time the regular exercises of the University should be suspended, so that the proper persons can not be educated at the University, the income of the fund may be used during such suspension for education elsewhere of the persons selected. My purpose is to endow five scholarships with the donation; and I desire the fund to remain invested in United States bonds so long as they may be considered safe, without reference to the rate of interest; and if the fund should be otherwise invested at any time, I direct that it shall be on the safest and most reliable security."
The fund is insufficient, or may soon become so, to support the number of scholarships mentioned from the income and profit arising from the bonds, or from any into which they may have to (511) be converted bearing a lower rate of interest, under the operations of the treasury department of the United States, and the parties differ as to the obligations imposed on the legatee by their delivery. The plaintiff insists that the income must be applied, as far as it will go, in the support of the five scholarships, but that the deficiency is not to be made up by the legatee, nor the charge of scholarships reduced below the established rate, in order to meet the condition of the bequest and sustain the proposed five scholarships.
The defendants insist that such is the testator's intention, the proper *356 construction of the will and the effect of accepting the bonds. The case is intended to present this point for our determination.
In our opinion, the question is not properly before us in this proceeding to recover the legacy. The unqualified right to demand, and the equally absolute duty of the executors to deliver, if the estate permits, are clearly and unequivocally expressed in the will. The testator requires the five bonds specifically described "to be registered in the name of the trustees of the University of North Carolina," the interest becoming due after his decease to be received by the said University corporation, as it may become payable, and specifies how it shall be used and the mode of appointing the beneficiaries other than his own sons, who have priority of right thereto. It is made one of the conditions of the bequest that the fund shall not be applied to the debts of the University, and if the beneficiaries can not be educated there, by reason of suspension of its exercises or other causes, the income shall be used for a similar purpose at some other educational institution. And in the last sentence of the clause, he declares his "purpose is to endow five scholarships with the donation."
Whatever trusts may attach from this declared purpose, and (512) follow the transfer of the bonds to the plaintiff, it is manifest the office of the executors is performed by delivering them. They can impose no terms or conditions, nor exact any security for the discharge of the trusts, the duty of delivering being plainly declared in the words used. Those trusts must be enforced on behalf of the beneficiaries, if the plaintiff should at any time hereafter fail to carry them into effect. The relation of trustee and beneficiary is created between the legatee and those who are to reap the fruits of the legacy in their education. But while not before us, and while the rights of the beneficiaries can not be affected by our opinion upon the question the parties intended to present, we feel at liberty to say we do not interpret the will as imposing an obligation in its nature perpetual on the plaintiff to make the income maintain the five scholarships either by reducing the rates to a sum within the income, or by making up the deficiency out of other resources of the University, the effect of which would be to convert an intended bounty into a heavy and continued burden. The words indicate a wish that the funds may sustain that number of scholarships, but do not import a command that they shall do so, and annex it as an inseparable condition to the legacy itself. The testator's intent will be attained by a careful preservation of the fund in a safe though small interest-bearing investment, and the application of its fruits to the education of as many as it will admit.
It is seldom that much aid can be derived from adjudicated cases in finding out the meaning and in giving effect to the varying words *357 which testators use in disposing of their estates. The want of fixed forms of expression, and the infinite diversity of language employed, necessarily leave each will, in a great degree, to be interpreted by its own provisions. We think our construction carries out the generous purposes of the testator, and is in full consonance with the (513) pervading spirit of the entire instrument.
Affirmed.