Appeal by plaintiffs from judgment entered 4 November 2002 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 17 November 2003.
Maupin Taylor & Ellis, P.A., by Charles L. Steel, IV, M. Keith
Kapp, Tyler L. Randolph, and Kevin W. Benedict, for plaintiff-
Robinson, Bradshaw & Hinson, P.A., by Robert W. Fuller, for
plaintiff-appellee E.A. Morris Charitable Foundation.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Debbie W.
Harden, for plaintiff-appellee Wachovia Bank of North
Teague, Campbell, Dennis & Gorham, L.L.P., by George W.
Dennis, III, and Jacob H. Wellman, for plaintiff-appellee John
Attorney General Roy Cooper, by Assistant Attorney General Kay
This appeal arises from a suit filed by plaintiffs (Mary
Morris, Joseph Morris, and Cornelia Wily) seeking to change the
remainder beneficiary of four trusts. Two of these trusts were
established in 1993 by E.A. Morris; the other two were established
in 1999 by Mary Morris. Each trust names one of the plaintiffs as
lifetime income beneficiary, and all four trusts name the E.A.
Morris Charitable Foundation (the Foundation) as the charitable
remainder beneficiary. Plaintiffs appeal from the trial court's
dismissal of their lawsuit, pursuant to N.C.R. Civ. P. 12(b)(6)
(2003). We affirm the trial court.
The relevant facts are these: The Foundation, which was
created by Mr. E.A. Morris in 1980, has no members and is governed
by its board of directors. E.A. Morris was involved with the
Foundation until his death in 1998, and the initial board of
directors included several members of the Morris family.
Plaintiffs filed suit on 7 August 2002, twenty years after E.A.
Morris established the Foundation. They alleged that, after the
trust instruments were executed naming the Foundation as remainder
beneficiary, the board of directors made various changes to the
Foundation's administration, management, and pattern of charitable
giving. Plaintiffs asserted that as a result of these changes,
the charitable intentions of [E.A.] Morris and Mary C. Morris have
become impossible and impractical [sic] of fulfillment.
Plaintiffs asked the trial court to (1) assume jurisdiction over
the matter under N.C.G.S. § 36A-53; (2) find that the charitable
remainder interests set forth in the trusts at issue had becomeimpossible or impracticable to carry out due to the change in
control of the E.A. Morris Charitable Foundation, and; (3) reform
the trust agreements. We note that plaintiffs filed a related suit
against several members of the Foundation's board of directors,
seeking their removal from the board and other relief, which is
also decided this date. See Morris v. Thomas, __ N.C. App. __, __
S.E.2d __ (2003).
On 15 August 2002 the Foundation moved to dismiss plaintiff's
claim for reformation of the trust agreement, pursuant to N.C.R.
Civ. P. Rule 12(b)(1) and Rule 12(b)(6). Defendant Thomas joined
the Foundation's motion to dismiss on 21 October 2002. On 4
November 2002 the trial court granted the defendants' motions to
dismiss plaintiffs' complaint for failing to state a claim upon
which relief can be granted and dismissed plaintiffs' action with
prejudice, taxing costs to plaintiffs. From this order, plaintiffs
 The trial court dismissed plaintiffs' complaint under Rule
12(b)(6) of the North Carolina Rules of Civil Procedure. A motion
to dismiss is the usual and proper method of testing the legal
sufficiency of the complaint. For the purpose of the motion, the
well-pleaded material allegations of the complaint are taken as
admitted; but conclusions of law or unwarranted deductions of fact
are not admitted. Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d
161, 163 (1970) (citation omitted). Dismissal of a complaint
under Rule 12(b)(6) is proper when one of the following three
conditions is satisfied: (1) when the complaint on its face revealsthat no law supports plaintiff's claim; (2) when the complaint on
its face reveals the absence of fact sufficient to make a good
claim; (3) when some fact disclosed in the complaint necessarily
defeats plaintiff's claim. Jackson v. Bumgardner, 318 N.C. 172,
175, 347 S.E.2d 743, 745 (1986) (citation omitted). Further, on
a motion to dismiss pursuant to Rule 12(b)(6) . . . [t]he complaint
must be liberally construed, and the court should not dismiss the
complaint unless it appears beyond a doubt that the plaintiff could
not prove any set of facts to support his claim which would entitle
him to relief. Block v. County of Person, 141 N.C. App. 273,
277-78, 540 S.E.2d 415, 419 (2000).
Plaintiffs' complaint sought relief under N.C.G.S. § 36A-53
(2003), which provides in relevant part:
If a trust for charity is or becomes illegal,
or impossible or impracticable of fulfillment
. . . and if the settlor, or testator,
manifested a general intention to devote the
property to charity, any judge of the superior
court may . . . order an administration of the
trust, devise or bequest as nearly as possible
to fulfill the manifested general charitable
intention of the settlor or testator. . . .
G.S. § 36A-53(a). This statute expressly [gives] the courts the
power to apply the cy pres
doctrine to charitable trusts. YWCA v.
, 281 N.C. 485, 489, 189 S.E.2d 169, 171 (1972). The cy pres
doctrine derives its meaning from the Anglo-French phrase cy pres
, meaning 'near as possible,' and allows a court, in
the event that the purpose set forth in a charitable trust becomes
impossible, illegal or impracticable to redirect the bequest to a
purpose as near as possible to that originally selected by thesettlor of the trust. Id.
(citation omitted). However, the
statute applies only when three conditions have been met: (1) the
testator manifested a general charitable intent; (2) the trust has
become illegal, impossible, or impracticable; (3) the testator has
not provided for an alternative disposition if the trust fails.
Trustees of Wagner Trust v. Barium Springs Home for Children
N.C. App. 136, 146, 401 S.E.2d 807, 813, aff'd in part, rev'd in
part on other grounds
, 330 N.C. 187, 409 S.E.2d 913 (1991)
(citation omitted). In the instant case, the dispositive issue is
whether the disposition of the remainder beneficiary interest to
the Foundation has become impossible, or impracticable.
Impossible is defined as not possible; that cannot be done,
occur, or exist, while impracticable is defined as impossible
in practice. Oxford Encyclopedic English Dictionary 709 (Judy
Pearsall & Bill Trumble, eds., 2nd ed. 1995). Thus, '[i]f the
failed gift was to or for a charitable institution which never
existed, or has ceased to exist, or is too vaguely described to be
identified, the court will . . . deliver the principal to another
like institution[.]' Riverton Area Fire Protection District v.
Riverton Volunteer Fire Department
, 208 Ill. App. 3d 944, 950, 153
Ill. Dec. 165, 566 N.E.2d 1015, 1019 (1991) (quoting G. Bogert,
Trusts and Trustees § 442, at  ([Rev.] 2d ed. ). See
Board of Trustees of UNC-CH v. Heirs of Prince
, 311 N.C. 644, 646,
655, 319 S.E.2d 239, 241, 247 (1984) (where testatrix left funds
for the purpose of erecting a building for the Carolina
Playmakers Court holds that construction of the new dramatic artsfacility . . . expressly made 'impracticable' the achievement of
However, [a] donor who brings into existence a charitable
institution must recognize that most institutions are likely to
change with time[.] Trustees of Dartmouth College v. Quincy
Mass. 521, 533-34, 258 N.E.2d 745, 753 (1970). Thus, the general
rule is that, in the absence of an express restriction or condition
contained in the trust instrument itself, if the intended
beneficiary continues to function at the time the bequest is to
take effect, the trust is not impossible or impracticable to
effectuate. Trustees of Wagner Trust v. Barium Springs Home for
, 102 N.C. App. 136, 401 S.E.2d 807 (1991). In this
regard, the analysis in Wagner Trust, id.
is instructive. The
settlor therein established a trust in 1942, naming his wife as
lifetime income beneficiary and a local hospital as remainder
beneficiary. The trust provided that, if the hospital was no
longer in existence at the time of distribution of the remainder
assets, the alternate remainder beneficiary was the Barium Springs
orphanage. In 1988, when a declaratory judgment action was filed
to determine the proper distribution of funds, Barium Springs was
no longer an orphanage, but instead operated a program of working
exclusively with troubled, alienated and disturbed adolescents, for
which treatment was not provided free of charge. Id
. at 140, 401
S.E.2d at 810. Upon this evidence, the trial court found that the
purpose, function, and services of Barium Springs have changed and
concluded that the testator's intention regarding Barium Springs
[was] 'impossible or impracticable to fulfill.' Id.
at 143, 401S.E.2d at 811. This Court reversed, noting that the will does not
specify any condition requiring the institution to continue to
function in the identical capacity in which it operated as of the
death of the testator. Nonetheless, the trial court . . .
apparently impl[ied] a condition that it not deviate from its
precise function at the time of the execution of the will[.] Id.
at 144, 401 S.E.2d at 812. The Court rejected this interpretation,
[T]here is no express condition in the will
requiring that Barium Springs remain the same
and we will not imply such a condition
. . .
[because] a charitable organization would
[then] be required to function in the exact
same capacity as it did at the time the trust
was created. . . . [C]haritable institutions
would be unable to adapt to the changing needs
of society . . . [S]uch an implied condition
would lead to difficult determinations as to
how much change is permitted
and whether the
charitable organization has changed to such an
extent that it is no longer the charitable
institution the testator intended to benefit.
We do not wish to resort to such line-drawing.
at 145, 401 S.E.2d at 812 (emphasis added).
Plaintiffs argue that the purpose of the trusts, and the
charitable intention of the settlors, are 'ambiguous' and should be
determined by reference to plaintiffs' allegations regarding their
personal understanding of the settlors' wishes. Plaintiffs
misstate the law in this regard. The issue of the settlor's
intent pertains not
to the question of whether the trust has
become impossible or impracticable to carry out, but instead to
whether or not the settlor evinced a general charitable intent.
Extrinsic evidence regarding the testator's actions and statements
while alive may be relevant to the determination of this issue. See Board of Trustees of UNC-CH
, 311 N.C. 644, 319 S.E.2d 239
(comparing the evidence of testator's general charitable intent to
that of the testator in Wilson v. Church
, 284 N.C. 284, 200 S.E.2d
769 (1973)). However, the holding of Wagner Trust, id.
this Court will not look beyond the express language of the trust
instrument itself in determining whether the trust is impossible or
will neither read between the lines to imply
unstated conditions, nor engage in assessments of how much a
beneficiary may change before it is disqualified from serving as
remainder beneficiary. In the instant case, the trust instruments
do not contain any restrictions or conditions pertaining to the
management, administration, or distribution of funds by the
Nor would the changes alleged by plaintiffs make it impossible
or impracticable for the Foundation to carry out its stated
mission. Plaintiffs herein asserted that the Foundation's board of
directors (1) voted to remove Mary and Joseph Morris from the
board; (2) made certain administrative changes, including, e.g.,
using a different bank, hiring a different law firm to represent
the Foundation, and changing the location of the Foundation's
office; (3) made decisions with which plaintiffs disagreed, such as
increasing the compensation paid to the Foundation's president, and
revising the Foundation's bylaws, and; (4) distributed income to
several organizations to which neither [E.A.] Morris nor the
Morris family had any interest. On this basis, they allege that
it is impossible or impracticable for the trust to carry out its
charitable purpose if the Foundation is the remainder beneficiary. However, the purposes for which the Foundation was established are
very general and contemplate gifts to a wide variety of nonprofits.
Though not included in the record of this case, we take judicial
notice of the Articles of Incorporation of the Foundation, included
in the record of Morris v. Thomas,
___ N.C. App. ___, ___ S.E.2d
___ (COA03-237 filed 16 December 2003), also decided this date.
See Sugg v. Field
, 139 N.C. App. 160, 163, 532 S.E.2d 843, 845
(a court . . . may take judicial notice of its own records
in an interrelated proceeding involving the same parties). The
Articles of the Foundation state, in relevant part, the following:
. . . .
3. The purpose for which the Corporation is
organized is to operate exclusively for
charitable, religious, educational and
; and in carrying out such
purpose the Corporation shall . . . make
distributions and donations as determined from
time to time by the Board of Directors to the
(a) To colleges, universities and other
, . . .
(b) To hospitals and organizations engaged in
,. . .
(c) To churches and other religious
,. . .
(d) To such other organizations as determined
from time to time by the Board of Directors of
the Corporation. . . .
(emphasis added). The only other restriction on the Foundation's
choice of recipients is that said recipient [must] qualif[y] as an
exempt organization under [§] 501(c)(3) of the [IRS] Code. We
conclude that the Foundation's ability to carry out its generalized
purpose is not jeopardized, much less rendered impossible or
impracticable, by changes in, e.g.,
management style, office
location, or selection of particular charitable recipients. Plaintiffs' complaint establishes that the Foundation
continues to exist and to make charitable distributions. We
conclude that the complaint on its face reveals that no law
supports plaintiff's claim[,] Bumgardner
, 318 N.C. at 175, 347
S.E.2d at 745, and that the trial court did not err by granting
defendants' Rule 12(b)(6) motion. This assignment of error is
 Plaintiffs also present several new theories of relief on
appeal, including (1) direct relief under the Declaratory Judgment
Act, (2) the doctrine of equitable approximation, (3) the
doctrine of deviation, and (4) relief under G.S. § 36A-23.1.
[Plaintiffs] raise th[ese] issue[s] for the first time on appeal
to this Court. This Court has long held that issues and theories
of a case not raised below will not be considered on appeal, and
th[ese] issue[s are] not properly before this Court. Westminster
Homes, Inc. v. Town of Cary Zoning Bd. of Adjust.,
354 N.C. 298,
309, 554 S.E.2d 634, 641 (2001) (citation omitted). These issues
are not properly before us.
The trial court's dismissal of plaintiffs' complaint is
Chief Judge EAGLES and Judge McGEE concur.
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