Duncans in Orange Co. NC Court Records


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised February 13, 2004


"Reports of cases in equity argued and determined in the Supreme Court of North Carolina, from December term 1845 to August term 1847" by James Iredell, Vol.IV (spine title "No. Carolina Reports [Vol.] 39 - Iredell's Equity, Vol.IV); Vol.39, pgs.26 to 32 (California State Law Library, Sacramento, 1/2004)
      WILLIAM H. BRIDGES & al. vs. STEPHEN PLEASANTS; Supreme Court of North Carolina; 39 N.C. 26; 4 Ired. Eq. 26; December, 1845, Decided.
      This cause, having been set for hearing upon the Bill and answer, was transmitted, by consent of the parties, from the Court of Equity of Orange County, at the Fall Term, 1845, to this Court. The following case was presented by the pleadings:
      Stephen Justice made his will, and therein bequeathed sundry specific and pecuniary legacies; and then he directed as follows: "After my will is complied with, after the above directions, it is my will that $1000, if there be so much remaining, be applied to foreign missions, and to the poor saints: this to be disposed of and applied as my executor may think the proper objects according to the Scriptures; the greater part, however, to be applied to missionary purposes, say $900. Item: It is my will, that if there be any thing over and above, that it be applied to home missions." There is no other residuary clause in the will; and the present bill was filed by the testator's next of kin, against the executor, for an account and distribution of the surplus, and claiming the above sums, as not being effectually given away.
      Respecting the other parts of the estate, there seems to be no dispute, but the whole controversy turns on the validity of the charitable bequests. The answer states, that the defendant is, and has long been, an officiating minister in the Baptist denomination of Christians, and the testator was a pious and zealous member of the same denomination, and manifested a deep solicitude for the spread of the Gospel, as expounded by that denomination, and was charitable and liberal to its poor professing members; that by the terms, "poor saints," the testator meant his Christian brethren, who might be in needy circumstances; and that "foreign mission" and "home mission," apply to the efforts of the Baptist church to extend the knowledge of Christianity in foreign lands, and in our own country. The answer further states, that the defendant has accepted the trust conferred on him, and that he has formed a scheme for administering it, as follows: That he will pay the sum bequeathed for foreign missions, to the Treasurer of the North Carolina Baptist State Convention, (which is the highest assembly of that denomination in the State,) to be by them applied, with their other funds, in aid of the extension of Christianity in other countries, under the auspices of the General Baptist Convention of the United States. The bequest for home missions, he proposes to divide between the Beulah, Sandy Creek, and Flat River Associations; which, the answer states to be three inferior societies of the Baptist church, within the personal knowledge of the testator, in this State; to be applied by each association to the support of the Gospel ministry within its jurisdiction. The bequest to poor Christians, the defendant proposes to apply to the poor of Cane Creek congregation, in Orange County, (in which the testator habitually worshipped,) unless there should be objects of greater need elsewhere. The answer then refers to a pamphlet, published some years after the testator's death, as containing the proceedings and views of the Baptist State Convention, in relation to missions and charities to poor brethren. And the defendant states, that he is advised that he has, by the will, the right and trust to apply the funds according to his judgment, as the testator might himself have done; but he, nevertheless, submits to administer the charity as the Court may direct.
      The answer further states, that two of the plaintiffs, William H. Bridges and William Duncan, executed to the defendant their releases by deed, of any further claim in the testator's estate; and it insists thereon as if the same matter were pleaded.
      The two releases, referred to in the answer, are exhibited, and, in each of them, the receipt of the sum of $60 is acknowledged to be in full of the distributive share of the party in the estate of the late Stephen Justice, and the defendant is released from all further demands or claims on him, as executor of Justice, either at law or in equity.
      The cause was set down for hearing without replying to the answer, and sent to this Court for hearing.
      (opinion) RUFFIN, C. J. It is always painful to a Judge, to disappoint the intentions he believes to have been entertained by a testator, though he has not sufficiently expressed them; and it is so especially, when the testator's intentions were so praise-worthy as those which, as the defendant says, this testator entertained and which it is extremely probable he did entertain. But it is a perfectly well known principle of law, that a Court cannot go out of a will to construe it. The paper must tell us the testator's meaning, or we can never find it out; and if he hath not sufficiently disposed of his property, it falls, as a matter of course, to his next of kin.
      An argument for the defendant is, that the next of kin are cut off by the gifts from them, which are to be applied in the discretion and judgment of the defendant; claiming for the defendant the largest authority of the testator himself. But with the exceptions of those bequests, which are technically called "charitable," the rule is quite the other way. When a gift is made, in trust, the donee cannot take it for his own benefit, in opposition to the intention of the donor. Then it follows, that, to sustain such a gift in trust, the trust itself must be valid; and, to make it so, it must be in favor of such persons, natural or artificial, as can legally take. Therefore, it was held, in Morris v. Bishop of Durham, 9 Ves. 399, 10 Ves. 522, that a gift to the Bishop, "to be disposed of to such objects of benevolence and liberality as he should most approve of," was void for its vagueness and generality; inasmuch as no person or persons in particular could claim the benefit of the gift or enforce the Bishop to bestow charity upon any person, while it was yet clear that the Bishop could not keep it to himself. Therefore, the subjects of such gifts result to the heir or next of kin of the donor. So far, then, as the attempt goes to support this bequest on the ground, that it is to be applied to the objects, which the executor might think proper, according to the scriptures, it must fail; because, if the executor were dishonest enough to keep the money in his own pocket, there is no person that could institute an action to call for any part of the sum, unless it be the next of kin.
      But it is further said, that these gifts are sufficiently precise to make them good as charities for religious purposes. And we have no doubt, that, in England, they would be so held, and that with the view of applying them to purposes quite opposite to those wished by this testator, upon the doctrine of cy. pres. But we have no authority in this country, which, like the King in England, or the Chancellor, can administer a fund upon that arbitrary principle. So it has been held in this State, more than once. In the former case, it was laid down, that, if there be a bequest to charity, which cannot take effect, the Court cannot conjecture that the testator would desire it to go in some other charity, and then take a step further, and say that the testator meant that the Court should select an object for the testator, which he omitted effectually to do for himself. Therefore, a bequest for religious charity must, like others, be to some definite purpose, and to some body or association of persons, having a legal existence, and with capacity to take. Or, at the least, it must be to some such body, on which the Legislature shall, within a reasonable time, confer a capacity to take. The Revised Statute, c. 99, authorises religious societies to choose trustees, and vests them with power to purchase and hold the churches, glebes and land, and to receive gifts of any kind, for the use of the society or congregation: provided, that no single congregation shall hold land to a greater annual value than $400, or in quantity more than 2000 acres. That has been extended, by an act of the last Assembly, 1844, c. 47, which allows the church or sect in the aggregate, as the Conference, Synod, or Convention, representing a religious denomination in the State, to appoint trustees, who may receive donations, and take and hold property, real or personal, in trust for the church within this State. So far, therefore, there is a capacity in religious congregations of particular denominations, and, now, in the aggregate church of the several denominations, to take property for the religious uses of the congregation or church. And it is probable, that a gift to build a church at a particular place, for the purpose of forming or constituting a church of any one known denomination, might be sustained in favor of a congregation regularly though newly organized. But it is clear, the statutes throughout have only those religious charities or purchases in their purview, which are made to or for the benefit in severalty of some church, sect or society, known as a denomination. For the Legislature was fully aware of the existence of various sects or churches in the State, and of their general utility and harmonious action, when each moves in its own orbit, and is sustained by its own members; and, therefore, the requisite provision is made for securing the place of worship of each, and supplying such income from donations or purchases as the Legislature deemed adequate for keeping the congregation together, and enabling each church to fulfil its functions of benevolence and instruction of its members, and of such persons as should resort thither for spiritual edification. But there is no provision for donations, to be employed in any general system of diffusing the knowledge of christianity throughout the earth. That is left to those, who choose to administer their own means in such charities, or in their life-times to trust to others, in whose hands they place the funds: for in those cases the acts are personal or the confidence is so, and there is no call for the aid of the Court to compel the parties to their duty. Wherever the aid of the Court is invoked, there must appear some right in the person, who applies, or for whose benefit it is sought, to support a gift by will. In the present case, it is impossible, from any thing appearing in the will, to conjecture how, by whom, or in whose favour, these sums of money were to be administered. What kind of "foreign missions," whether diplomatic or religious, or, if the latter, of what sect, or to what countries, no man can say. So, likewise, of the "home mission." The gift to the "poor saints" is equally indefinite. If the testator had told us, who were meant by him by that description, the persons thus meant should have the benefit of the bequests, however much below the description of saints they might fall. But it is impossible at this day, and in this country, to say, judicially, that this or that man is a saint, or even a Christian; much less can a bequest be supported for all poor saints indefinitely, that is, who are in the world. The poor of a County or City are proper objects of such a charity; for the objects of bounty are readily known, and their number easily ascertained, and the gift is in fact to the public. But "poor saints," if it could be known who they are at all, are not mentioned in the will, as of any County, nor country; but, if any can take, all such persons, throughout the world, are to share in it; which is preposterous.
      We think, therefore, that the several bequests must be declared to be too indefinite and void, and that the plaintiffs are entitled to an account, except Bridges and Duncan. They appear, upon the answer and exhibits, to have received their shares of the estate, and, at all events, for a consideration expressed, have given releases of any demand for a further share of the estate; and therefore the bill must be dismissed as to them.
      PER CURIAM. Decreed accordingly.

Return to the Orange Co. NC Research File


Return to Index to Duncan Research Files in North Carolina

Return to The Genealogy Bug's Home Page