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June 30, 1972

WACHOVIA BANK AND TRUST COMPANY, N.A., Trustee Under the Last Will and Testament of John W. Turrentine, et al., Plaintiffs,
Anna M. BUCHANAN et al., Defendants

Parker, District Judge.

The opinion of the court was delivered by: PARKER

PARKER, District Judge.

 In these proceedings the trustee under a testamentary trust and the executor under the will seek construction of certain provisions of the trust instrument and instructions as to whether the trustee may administer the trust without reference to racial instructions imposed by the settlor. The trust provided scholarships in the form of grants and loans to "white boys and girls" attending the University of North Carolina.

 The matter was heard on plaintiffs' motion for summary judgment construing the will. The issues presented to the Court for determination are whether under the facts of this case the Court should invoke the doctrines of cy pres or deviation, upholding the trust by striking certain illegal racial restrictions from the instrument without violating the testator's general charitable intent or whether the trust should fail and the testator held to have died intestate as to his residuary estate. Plaintiffs urge that the Court should strike the illegal racial restriction from the provisions of the trust by invoking those doctrines. On the other hand the defendants contend that this is a proper case for consideration of extrinsic evidence to show that the testator's general intent was such as to preclude application of the cy pres doctrine or deviation. Also, they contend that even if extrinsic evidence is inappropriate the will itself fails to manifest any general charitable intent; that the illegality of the trust provision existed at the time it was executed and as a consequence the trust fails. Finally, they argue that the plaintiffs are violating the in terrorem clause of the will by seeking an elimination of the illegal racial proscriptions. They seek judgment dismissing the complaint and declaring that the trust fails and reverts to the heirs at law and next of kin of the testator.

 After a review of the trust instrument, the pleadings and other memoranda of the parties the Court concludes that a general charitable intent is found in the trust instrument and that there is adequate justification for granting to plaintiffs the requested relief.

 Plaintiffs are the Wachovia Bank and Trust Company, trustee, of the State of North Carolina and Fred W. Morrison, executor under the Will of John W. Turrentine. The testator died in 1966. His will, dated September 13, 1960, was admitted to probate immediately following his death and thereafter letters testamentary were issued to Mr. Morrison. The named defendants are nephews and nieces of the decedent, his sole heirs at law and next of kin. However, all of the defendants have not appeared to contest the relief sought by the plaintiffs. The District of Columbia sought, and was granted, leave to intervene as a defendant. *fn1" The Attorney General of North Carolina, as Attorney General of the State and supervisor of charitable trusts for the State, was granted leave by the Court to participate as amicus curiae.

 By the terms of the residuary clause of the will, the testator left the great bulk of his estate to the Wachovia Bank and Trust Company, in trust, with the income therefrom to be used to provide ". . . scholarships in the form of grants and loans at the Consolidated University of North Carolina . . . to white boys and girls who reside in Alamance County . . . whose ambition and desire it is to attend said University but who would not be financially able to do so without such grant or loan. " *fn2" The awardees of the scholarships were to be selected by a committee appointed by an Administrative Group comprised principally of persons holding elective or appointed public positions including the President and three Chancellors of the Consolidated University of North Carolina, the President of the Burlington City Board of Education, the Superintendent of Schools of the City of Burlington, North Carolina, and the Superintendent of Schools of Alamance County, North Carolina. Also included was a representative of the Wachovia Bank and Trust Company and during his lifetime, the executor of the will. *fn3"

 The parties are in agreement and the case law is in accord that the Fourteenth Amendment precludes the public officials of North Carolina from administering this trust on a discriminatory basis. Pennsylvania v. Board of Directors, 353 U.S. 230, 77 S. Ct. 806, 1 L. Ed. 2d 792 (1957); Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). Nor would the substitution of persons from the private sector for the public officials satisfy the constitutional requirements. Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966). The plaintiffs therefore urge that the doctrine of cy pres or deviation be invoked allowing the trustees to administer the trust and provide scholarships to students, otherwise qualified, without regard to racial restrictions.

 In the Restatement the doctrine of cy pres is stated:

If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor. *fn4"

 This rule is well-settled in the District of Columbia and has often been applied to preserve charitable dispositions which otherwise would have failed. Fay v. Hunster, 86 U.S. App. D.C. 224, 181 F.2d 289 (1950); Shoemaker et al. v. American Security & Trust Co. et al., 82 U.S. App. D.C. 270, 163 F.2d 585 (1947); Noel v. Olds, 78 U.S. App. D.C. 155, 138 F.2d 581 (1943).

 A review of several provisions of the trust instrument reflect clearly the dominant general charitable intent of Mr. Turrentine. After providing for scholarship grants and loans in paragraph IV (b)(1), in a later paragraph, IV (b)(6), he provides a more detailed statement.

It is my purpose and desire that in awarding scholarships consideration be given only to applicants whose financial status would not permit them to attend the Consolidated University of North Carolina without said scholarships, the purpose of this Foundation being to make the splendid facilities of said University available to a larger percentage of ambitious young people who otherwise would be deprived of these advantages because of financial limitations, and to whom these scholarships would be the deciding factor as to whether or not they can enter the said University. . . (emphasis added)

 In Worcester County Trust Co. v. Grand Knight, 325 Mass. 748, 92 N.E. 2d 579, 582 (1950) a settlor's purpose was declared as ". . . to encourage the literary and elocutionary efforts of students . . . " That declaration of purpose, far less descriptive than that of Mr. Turrentine's ...

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