MILLER, Associate Justice.
In Noel v. Olds,
Appellants contend that the trial court erred in entering judgment against them and in prohibiting them from having a trial, as plaintiffs, of the issues raised by the
In their motion for judgment on the pleadings, appellants said: "The pleadings in this action are closed; there is no issue as to any material fact; the issues presented by the pleadings are issues of law relating to the meaning and effect to be given to the provisions of the Last Will and Testament of William Hayes Ackland, deceased; * * *." In its judgment entered in response to that motion, the District Court said: "* * * the language of the will is plain and unambiguous on its face. * * *" On that ground, that court declined to permit appellees to amend their counterclaim by incorporating additional evidence of the testator's general charitable intention. Its decision, in favor of appellants, upon the pleadings was based upon the theory that the doctrine of cy pres was not in force in the District of Columbia, not upon the absence of such an intention. It conformed its judgment to that theory, only because it felt bound by dicta, theretofore erroneously uttered by this court. The trial judge stated that in his opinion the present case was one appropriate for application of the cy pres doctrine; he expressed the hope that on appeal our erroneous dicta would be repudiated, and that his judgment would be reversed. Our decision in Number 8352 upheld his conclusion that cy pres was and had been applicable in the District of Columbia. When we came to a consideration of its applicability in this case, we did so against the foregoing background. Not only appellants and the trustees, but also other parties — possible beneficiaries of the trust — were involved. It was appropriate for us — and it will be appropriate for the District Court — to consider both the fact that the testator expressed a general charitable intention, and what the range and scope of that intention may be in order, properly, to guide the trustees in administering the trust. We did this without specifying for which particular reason we examined the language of the will on the one hand and the evidence extrinsic to it on the other. We assumed, as the law contemplates, that if material questions of fact are presented by the pleadings, the remedy by motion for judgment on the pleadings under Rule 12(c) is not available;
But in any event, we made it plain in our opinion that it was not necessary to look to extrinsic evidence to determine that the testator had expressed a general charitable intention. As to that we said: "Moreover, if there were any doubt as to what the testator would have wished in the event which actually occurred, it is removed by other language which he employed in his will. In Item I, he said: `I urge upon my executors and trustees, hereinafter named, to carry out as nearly as possible the spirit of my intentions as expressed herein and as may be expressed to them by other means.' [Italics supplied.] In Item VII(d) 8, he provided: `I hereby give to my trustees full and complete discretion in connection with the administration of my trust estate and in carrying out the directions hereinabove contained, especially those in regard to the construction of the building hereinbefore provided for, and I direct that their decision in regard to any matter arising out of their administration shall be binding and conclusive upon all concerned.' Here is express language directing the trustees to look to other sources, well known both to testator and the trustees, to guide them in carrying out the spirit of his intentions. Such language would be without meaning if his purpose had been merely to make a gift to Duke University as a single beneficiary. It seems obvious, instead, that here was prevision of the possibility which actually eventuated and provision for the course to be followed by his trustees if it did."