BROOKS et al.
v.
DUCKWORTH et al.
No. 113.
Supreme Court of North Carolina.
November 28, 1951.*754 Sale, Pennell & Pennell, Asheville, for defendants-appellants.
J. Marvin Glance, Asheville, for plaintiffs-appellees.
DEVIN, Chief Justice.
By the express language of paragraph 28 of the will of Oliver D. Revell creating a charitable trust under the name of "Haywood Street Baptist Mission" and devising real property in Asheville to be used in connection there with, the trustees were prohibited from mortgaging or disposing of the property. This provision clearly limited the right of the trustees in relation thereto, but would not prevent a court of equity from using its power, in a proper case, to modify the terms of the trust to the extent necessary to prevent the failure of the trust and to effectuate the primary purpose of the trustor. Henshaw v. Flenniken, 183 Tenn. 232, 191 S.W.2d 541, 168 A.L.R. 1010, 1022 note.
Where changes in conditions not contemplated by the trustor have rendered impossible the accomplishment of the charitable purposes intended by the devise of property in trust, the equitable jurisdiction of the court may be invoked to modify the terms of the trust in order to give effect to the general intent expressed in the will. The substantial intention should not be defeated by the insufficiency of the form in which expressed. The principle is firmly established in equity jurisprudence that courts of equity have general and inherent jurisdiction, as incident to the administration of charitable trusts, to authorize in proper cases the alienation of property though devised in trust. Keith v. Scales, 124 N.C. 497, 32 S.E. 809; Holton v. Elliott, 193 N.C. 708, 138 S.E. 3; Johnson v. Wagner, 219 N.C. 235, 13 S.E.2d 419; First Citizens Bank & Trust Co. v. Rasberry, 226 N.C. 586, 39 S.E.2d 601; Watts Hospital v. Board of Com'rs for Durham County, 231 N.C. 604, 58 S.E.2d 696; 2 Bogert on Trusts, sec. 392; 3 Scott on Trusts, sec. 381; 14 C.J.S., Charities, § 48, p. 505. "Courts of equity have long exercised the jurisdiction to sell property devised for charitable uses, where, on account of changed conditions, the charity would fail, or its usefulness would be materially impaired without a sale." Grace Church v. Ange, 161 N.C. 314, 77 S.E. 239, 241. But the equally well established principle of equity must not be overlooked that the power to modify the terms of a trust when necessary to preserve it should not be exercised to destroy the trust or defeat the purpose of the donor. Cutter v. American Trust Co., 213 N.C. 686, 197 S.E. 542; Penick v. Bank of Wadesboro, 218 N.C. 686, 12 S.E.2d 253; Duffy v. Duffy, 221 N. C. 521, 20 S.E.2d 835; Redwine v. Clodfelter, 226 N.C. 366, 38 S.E.2d 203.
It will be noted that in Johnson v. Wagner, supra, we considered a trust set up by the same testator Oliver D. Revell in paragraph 27 of his will, and for the reasons therein set forth held that the trustees were properly authorized to sell the real property described in that paragraph and to use the proceeds in carrying out the general purposes of the trust under the supervision of the court.
For the reasons stated, we conclude that the court below has correctly ruled, and that the decree authorizing the conveyance of the described lot and the purchase of the property on Liberty Street for the purpose of effectuating the intent of the trustor should be in all respects affirmed.
Affirmed.