C. L. MAST, M. W. Setzer, Earl Ellis and Fritz Lovins, Trustees Under a Deed To Trustees of The Happy Valley Gospel Church,
v.
W. S. BLACKBURN, Mrs. Zora Blackburn, P. G. McGee, Paul Blackburn, Willie Miller, R. A. Miller, and Verna M. Fields.
No. 315.
Supreme Court of North Carolina.
April 16, 1958.*815 Hal B. Adams, Lenoir, for plaintiffs-appellees.
L. H. Wall, Lenoir, for defendants-appellants.
DENNY, Justice.
It would seem that this appeal requires the determination of two questions: (1) Did the use of the words, "unto them the said William Davenport and Elijah Coffey, in trust (for the purposes above mentioned), their heirs and assigns forever," appearing in the habendum of the deed clothe Edmund M. Jones, the sole heir of William Davenport, one of the trustees in the Reuben Coffey deed, with power to convey a good title to the premises involved? (2) Did the Clerk of the Superior Court of Caldwell County have the authority on 23 October 1946 to appoint the plaintiffs as trustees, pursuant to the request in the ex parte proceeding brought before him?
In our opinion, the use of the words, "their heirs and assigns," in the habendum of the deed executed by the Reverend Reuben Coffey on 19 October 1832, to William Davenport and Elijah Coffey, trustees, for the purposes therein expressed, did not make Edmund W. Jones a trustee of the property or give him the right to administer the trust, or to transfer the property to anyone else with power to carry out the purposes of the trust, unless directed to do so by a court of competent jurisdiction.
The death of original trustees, without any provision in the instrument creating the trust for the appointment of their successors, will not terminate or destroy a trust. Lassiter v. Jones, 215 N.C. 298, 1 S.E.2d 845.
The general rule with respect to such trusts is succinctly stated in Scott on Trusts, Volume 1, section 101, page 752: "The principle that equity will not allow a trust to fail for want of a trustee is clearly established. Where a trust has once been created and the trustee dies, becomes insane or subject to some other legal incapacity, or resigns or is removed, the trust does not fail, but a new trustee will be appointed." Ladies Benevolent Society v. Orrell, 195 N.C. 405, 142 S.E. 493; Lassiter v. Jones, supra; Cheshire v. First Presbyterian Church, 221 N.C. 205, 19 S.E.2d 855; 90 C.J.S. Trusts § 217(a), p. 151; 54 Am.Jur., Trusts, Section 122, page 106.
We hold that Edmund W. Jones, at most, held only the bare legal title impressed with the trust, but that he never possessed the right to administer the trust or to use the property for his own benefit. If indeed Edmund W. Jones was the sole heir of William Davenport, and William Davenport survived his co-trustee, then title vested in him pending appointment by civil action in the nature of a bill in equity in the superior court of a successor trustee or trustees. Cameron v. Hicks, 141 N.C. 21, 53 S.E. 728, 7 L.R.A.,N.S., 407; Scott on Trusts, Volume 1, section 101.1, page 753.
It follows, therefore, that the deed from Edmund W. Jones, as sole heir of William Davenport, to William B. Coffey, Clerk of the Baptist Church, and his successors in office, which Baptist Church was using the property at the time, conveyed to Coffey no greater interest in the trust property than Jones held. Furthermore, nothing appears on this record to indicate that William B. Coffey or any of his successors asserted or have undertaken to assert any right, title or interest in the property that has ripened into a good title by adverse possession or otherwise. Hence, we hold that neither Coffey nor any of his successors in office had the legal or equitable right to administer the trust created by the Reuben Coffey deed.
As to the second question posed, it appears that on 23 October 1946, the clerk of the superior court had no power *816 to appoint a successor trustee or trustees, except in cases where the former trustee or trustees had resigned. G.S. § 36-9.
The provisions of G.S. § 45-9 are not applicable to the facts involved herein. Cheshire v. First Presbyterian Church, supra. The powers granted in G.S. § 36-21 are vested in the superior court and not in the respective clerks thereof.
Not until our General Assembly enacted Chapter 1255 of the Session Laws of 1953, was the clerk of the superior court given the power to appoint a successor trustee or trustees in a situation like that under consideration. It follows, therefore, that the order of the Clerk of the Superior Court of Caldwell County, purporting to appoint those plaintiffs as trustees to carry out the purposes of the trust created in the Reuben Coffey deed of 1832, was a nullity.
Even so, the superior court, in a civil action, in the nature of a bill in equity, may appoint new trustees or appoint the plaintiffs as trustees, nunc pro tunc (Cheshire v. First Presbyterian Church, supra), if the necessary parties are before the court, or trustees may be appointed by the Clerk of the Superior Court of Caldwell County, pursuant to the provisions of Chapter 1255 of the Session Laws of 1953, now codified as G.S. § 36-18.1.
The controversy involved in this litigation should be terminated without further delay. Representative trustees should be appointed and should not come from any one particular group or denomination. The purposes of the trust and the limited value of the property involved would not seem to justify controversial litigation or any serious difficulty in procuring the appointment of trustees satisfactory to all interested parties.
In light of the conclusions we have reached, the motion for judgment as of nonsuit should have been sustained, and the ruling to the contrary is
Reversed.