dissenting.
In my opinion the reformation of the trust provision involved in this appeal is not authorized by G.S. 36A-53, and if it was that reformation nevertheless should not be granted at plaintiffs behest, because of its unequitable conduct in the premises.
Article IX of testatrix’s will, as I read it, manifested the intention to devote the funds involved only to constructing a building for the Carolina Playmakers, and I see nothing in the provision, as distinguished from other provisions of the will, which manifested “a general intention to devote the property to charity,” as the statute requires. The cy pres doctrine “may not be used to turn a narrow and particular charitable intent into a general charitable intent.” Bogert, Trusts and Trustees, 2d Ed., *67§ 431. And, in my view, the finding that the trust became “impossible or impracticable of fulfillment,” as the statute also requires, is not supported by the record, but is contrary to it. The record shows that: The University could have used the trust funds, along with other funds received from the General Assembly, in constructing the new Dramatic Arts Building, plainly within the terms of the trust, but deliberately decided not to do so, after telling the Advisory Budget Commission that the funds were available and would be so used; and that this was done for no purpose other than to reduce the amount of construction monies that the University would have to refund to the State in connection with that project. Because of its refusal to use the funds for the purpose devised and its duplicitous conduct in dealing with both the State and the trust in regard to the Dramatic Arts Building, the University did not come into equity with clean hands.
My vote, therefore, is to reverse the judgment appealed from and to direct the plaintiff appellee to convey the funds involved to the defendants.