
    Hugh McAuley & William Beard v. Robert Wilson, Executor of William Henderson. John Henderson and others v. Robert Wilson, Executor of William Henderson.
    From Mecklenburg.
    The doctrine of execution cy pres does not prevail in this state, and if the intention oí a testator cannot be literally fulfilled, a trust results for the heir, or next of kin.
    Where a testator bequeathed property in trust, for the support of a Minister of the Associate Seceding Party, “who shall preach at the Seceding Congregation Meeting House, called Gilead,” and a majority of that Congregation being of a different denomination, refused to permit a Minister of the Associate Seceding Party, to officiate in their Church. It was held that a trust resulted, although the Associate Seceding Party offerc d to build another Church near the one mentioned by the testator.
    The Plaintiffs McJlnley and Beard, as e< Trustees of the Congregation of Gilead,” filed their bill, in which they averred that William Henderson, in company with several other persons, in the year 1791. erected a Meeting House at the place described by him in his will, hereinafter set forth ; that the land upon which the Church was built, was conveyed to William Henderson and others, in trust for the members of the dissociate Reformed Synod, belonging to the Presbyterian Congregation of Gilead. That some time, after the erection of the Meeting House, Henderson and others, who had contributed to build it, separated from the communion of the Associate Reformed Synod, and became member.1; of a religious society called the Associate Seceding Presbyterians. That after this separation, the Congregation of Gilead became divided into two societies, one called the Associate Seceders, and the other the. Associate Reformed Seceders. That as the Meeting House was built at the joint expense of both these denomisations, it was agreed between them that each might use it for the purpose of public worship. —That Henderson duiy made and published his last will, and appointed the Defendant Wilson his executor, who proved the same. That thereby, among other things, Sic devised as follows :
    "The tract of land that I now live on, lying on the Catawba River, containing throe hundred acres, and also fisheries;, its my will and pi .asme that my executors hereafter named, do within six months after my decease, cause the afori-s del tract of land to be sold to the highest, bidder, Jie their directs the notice of the sale, and the terms, and the security to be taken) and my will is, that the money accruing from tile sale of the land, shall be laid out in purchasing shares in the State Bank of North-Carolina, or purchasing shares in the United. States Bank, and the profits to go towards paying a Minister of the Gospel who shall preach at the Seceding Congregation Meeting House, called Gilead, in said county, on the great road leading from Charlotte to Beattie’s Ford, the party called the Associate Seceding Party.”
    
    > — That the Plaintiffs had been duly elected trustees oí the dissociate Receding Congregation, who they contended were entitled to the use and occupation of Gilead Meeting House, equally with the Associate Reformed. But if in this they were mistaken, they stated that they had procured a conveyance to them, as Trustees of the Associate Seceding Congregation of Gilead, of one acre of land, and were about to erect upon it a house for the use of that congregation, within six poles of the Meeting House described by the devisor in his will.
    The prayer of the bill was for an account, and that the charity created by the will might be established, and the interest of the fund be paid to the. Plaintiffs to support a Minister to preach in the old M -cting House, or that the trusts of the will ¡night be executed, cy presv by appropriating the interest of the fund to the support of a Minister to preach in the new Meeting House.
    The Plaintiffs John Henderson and others, were the heirs at law ami next of kin to William Henderson. In their bill they set forth the above clause of their ancestor5» will-They averred that the land on which the Meeting House a{. Q¡iea(] waa built, belonged to the Associate Reformed presj)yferians. That the Associate Seceding Presbyterians (]¡(] not exist as a body at Gilead, and had no right to the use of the house. They insisted that there was no possibility of carrying the devise into effect, and prayed for an account of the trust fund, and that the executors might be directed to pay it over to them.
    The Defendant, the executor of William Henderson, in ids answers, admitted a sale of the land mentioned in the will, for the sum of 7440 dollars, rendered an account, and submitted to any decree, by which he would be indemnified and protected.
    Replications were filed, and testimony taken, explana» tory of the differences between the Associate Seceding and the Associate Reformed Churches, and of the sepa» rate existence of botii. — -Attached to one of the depositions was an exhibit iti these words :
    “ Gilead Church, July, 1823.
    
      "At a meeting of this Society, agreeably to public notice given for that purpose, Resolved that this Church be newly roofed and securely inclosed, with iron fastenings to the windows, doors, &c. and that this Church or Meeting House be kept for the sole and exclusive use of this congregation and our present P .stor, or some Minister of the Associate Reformed Synod. And that our present session or Elders are authorised and required to have the sole direction of this business.”
    The cause was argued at June Term, 1827, by Gaston for the Plaintiff-; McAuley and Beard; Wilson and Badger for the heirs, and Seawell for the Executor.
    Cur. vui.t adv.
   Henderson, Judge.

— This is not a devise to a religious congregation, within either the words or the spirit of the act of 1796, {Rev. ch. 457.) The property is not given to the congregation, to be used by them as they may think proper, for their use and benefit j but it is given for a special purpose, in which to be sure, they are interested,, but ara not the owners, to-wit, to pay preacher of a certain sect, to preach to the congregation called Gilead. They take therefore as trustees, or cestui que trusts, («Stirh is matter of indifference, She objection yot being to the form) for a specific purpose, and are bound to apply the funds to that, and to i.e ether ase.

The validity of the devise depends on the- question, whether the devisees are accountable to any oho, for the due execution of the trust $ for if they are sot, it is void, and tiieteis a resulting trust for the heirs at law, or next of kiss. If there is any osie «ho can compel Sits due execution of the trust, that is,’the proper application of the trust fund, according to the directions of the devisor, then it is a valid trust, at least so muck of it as is necessary to answer the intent of the founder. If there be more than is necessary for that purpose, the excess results to the heirs at law, or next of kin. For we do oof, as they tío In England, apply it to oilier objects of a similar kind, by what is called the doctrine of ey pres*

We are relieved from the consideration of the ques don, whether there is in this case, any persom competent •';« enfos co the due execution of the trust j for we think :Ua'í those for whose benefit it was intended, have refused, and still refuse, to accept tlio, testator’s bounty.— We certainly cannot impose it on them, for the congregation have the right to employ their own preacher, and to pay him in their own way. The testator has left us no guide to ascertain what Is to be done in such an event. Nor do we know, but from conjecture, whether as the congregation, who have the appointment of the Minister and the control over the Church, at Gilead, have refused to accept his bounty, it was his desire that it should be given to a part of the congregation who accord with Mm in religious sentiments, and who ars willing to build another Church near to the Church at Gilead, and employ the funds in paying a preacher of that sect, directed by the testator» It is very probable that the testator would have directed this» had he foreseen the refusal, as the thing nest best to that which he most wished. But he has not said so, and it is out of the power of this Court to speak for him. We cannot dispose of the property of the decease by undertaking to conjecture what would have been his will, provided he had foreseen what has since happened, which has thwarted his intent as expressed. If I was left to conjecture, I would say such was his will, but my argument to prove it would result in nothing like certainty. It would be this, that as the thing offered to be substituted, bears a very strong resemblance to that directed, which cannot be performed, it is probable he would have accepted the substitute, because it comes near to the thing directed. But, it may be, that every circumstance in which the proposed substitute, differs from the original directed, may have been the testator’s sole object in making the bequest, viz. a wish to have a preacher of his tenets to preach to the whole congregation at Gilead, and thereby bring them over to bis faith, and prevent the dissemination, in that Church of what he deemed unsound doctrines. I do not say that most probably this was his intent; it is sufficient if it may have been, or any thing else but the precise proposition made by the Plaintiffs. If I were left to my own conjectures, I would say that in the events which have happened, the proposition made by the Plaintiffs is the thing which be would have directed ; for it is fair to presume that bis object was the dissemination of the doctrines of his faith ; that he selected the Church at Gilead as the place of preaching, and the congregation there as the one to be preached to; but that they were pointed out only as the means of effecting the end. But if these means failed, the end was not to be lost, but the next best means, and those bearing the strongest resemblance to those pointed out, should be resorted to. This reasoning is all fair, and if we were correct in the object, would be satisfactory ground for a decree in favor o i! the Plaintiffs. But when we recollect that we assume the object which he had in view, that it is incapable of proof, for he who only can speak in regard to it has spoken for the last time, by this his last will, to which only wo can look for his intent, and on this subject that he is silent, we must remain iu ignorance of his intent further than he has declared it, and this furnishes only ground of conjecture, on which we cannot act.

Hall Judge.

— It would seem, that the object of the testator was to reconcile and unite in principle, the two sects, one of which was called ie the associate seceding party,” the other •'*' the associate reformed party.” To the first party the testator belonged; the Church of Gilead belonged to the latter. The testator directs that his property shall be formed into a fund to pay a Preach cr of his own religious principles, to preach atibe Church of Gilead. That Church have rejected any benefit that intended for them by that devise ; they will not accept of it. The. testator’s own party, the associate seceding Presbyterians, pray the benefit of it, and that it may bo vested, nj pres, in a Church erected by them very near to the Church of Gilead. This we think cannot be done 5 51s the object of the testator cannot be effected, we cannot direct the fund to be applied to any other.

Per Curiam.

— Let the bill of the Plaintiffs, McJhiley and Beard, fie dismissed, and on the bill of the heirs at law and next of kin, let an account be taken, and let all costs be paid out of the fund.  