aged white men in memory of her deceased husband. In holding that the bequest was enforceable as a charitable trust and not an attempt to create a memorial the court employed its equitable powers and struck the word "white" and declared, ". . . we believe the [trial] court was within its equitable powers in deleting the word 'white' from the trust. . . ." (440 S.W. 2d at 725).
Defendants press the argument that neither cy pres nor deviation are applicable because the doctrines are limited to situations where conditions have changed. Such requirements, however, are unnecessary. The doctrines are applicable even through the particular purpose fails at the outset.
One of the main contentions of the next of kin is that extrinsic evidence should be considered to explain the circumstances under which the will of the testator was drafted and executed. The decisions of this Circuit, however, are to the contrary. In Noel v. Olds, 78 U.S. App. D.C. 155, 138 F.2d 581 (1943) the Court in applying the cy pres doctrine, reached the conclusion that a general charitable intent was found only upon a consideration of the terms of the testator's will. And later in a proceeding involving the same trust instrument, Olds v. Rollins College, 84 U.S. App. D.C. 299, 173 F.2d 639 (1948) in commenting on the possibility of considering extrinsic evidence to demonstrate the testator's intent the Court observed that such ". . . would . . . give testamentary effect to nontestamentary expressions, which we are neither permitted nor prepared to do." 84 U.S. App. D.C. at 304, 173 F.2d at 644. Other decisions of our Circuit Court, Fay v. Hunster, 86 U.S. App. D.C. 224, 181 F.2d 289 (1950); Shoemaker v. American Security and Trust Co., 82 U.S. App. D.C. 270, 163 F.2d 585 (1947) do not reflect a departure from such holdings.
Nor does the Court find persuasive the defendants' argument that the illegality of the racial restriction existed at the time of execution of the will, thus, the trust fails. Assuming, arguendo, that the trust provision was illegal when drafted and executed in 1960, it does not necessarily follow that the trust failed in toto and reverted to the heirs and next of kin. First, by use of the equitable doctrines of deviation and cy pres the trust can be salvaged as discussed above. Second, the entire trust is not illegal. It is just the racial restriction. This may be analogized to a deed with a restrictive racial covenant. The deed is still a viable document. The restrictive covenant is unenforceable and may be repudiated by the filing of a corrective deed.
Similarly, the administration of a trust with a racially restrictive provision is illegal but such illegality need not be fatal. In addition to the above reasons, this Court feels that there are sufficient differences between the facts in Pennsylvania v. Board of Directors, 353 U.S. 230, 77 S. Ct. 806, 1 L. Ed. 2d 792 (1957) and those in this case to conclude that the earlier decision would not necessarily mean that this trust provision was illegal per se in 1960. While Board of Directors supports the position that state action involved in the administration of a trust with racial restrictions violates the Fourteenth Amendment, further clarification was needed to discuss which type of action (i.e. state v. private) was involved in a situation where other than a state agency was administering the trust. It is questionable whether that decision would have summarily disposed of the Turrentine trust as being illegal since a state agency is not directly involved in the administration of the illegal Turrentine trust. It was not until the 1960's that a series of decisions established definitely the illegality of the type of trust provision before the Court.
It was also suggested by defendants that the in terrorem clause precludes plaintiffs from seeking relief. Such a clause, however, does not prevent this Court from removing illegal provisions and validating the remainder of the trust. It has been held that actions for construction of a will or declaratory relief should not be construed as a contest of the will. Such clauses are strictly construed against forfeiture. See Morrison v. Reed, 6 N.J. Super. 598, 70 A. 2d 799 (1950); Kolb v. Levy, 110 So. 2d 25 (Fla. App. 1959); George v. George, 283 Ky. 381, 141 S.W. 2d 558 (1940).
This Court has considered the remaining arguments urged by the defendants and sees no necessity for further discussion since the foregoing are considered controlling in this matter.
Mr. Turrentine's dominant and overriding purpose was to aid charity generally and to provide scholarship assistance to financially deprived students who were seeking or might seek attendance at the University of North Carolina. In contrast with this larger purpose the racial limitation is one of minor significance.
Having found a general charitable intent and in utilizing cy pres and deviation the plaintiffs are granted summary judgment.
During the course of the proceeding Mr. Kent D. Thorup, a member of the bar of this Court pursuant to the provisions of the Soldiers' and Sailors' Relief Act of 1940, was appointed to represent the defendant Charles R. Carroll who was then a member of the Armed Forces of the United States. That counsel was requested to and filed in this proceeding a statement of services rendered which the Court has considered in the accompanying order.