Evans v. Abney

PETITIONER:Reverend E.S. Evans et al.
RESPONDENT:Guyton G. Abney et al.
LOCATION:Baconsfield Park

DOCKET NO.: 60
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 396 US 435 (1970)
ARGUED: Nov 12, 1969 / Nov 13, 1969
DECIDED: Jan 26, 1970
GRANTED: May 05, 1969

ADVOCATES:
Frank C. Jones – for the respondents
James M. Nabritt III – for the petitioners
Louis F. Claiborne – Deputy Solicitor General, for the United States as amicus curiae, urging reversal

Facts of the case

In 1911, U.S. Senator A. O. Bacon conveyed land to the city of Macon, Georgia through a testamentary trust for the purpose of providing a park for white persons only. The city operated the park in that manner, but after passage of the Fourteenth Amendment, people of all races were permitted to use the park. The managers of the park attempted to have the city removed as the trustee because it could no longer legally enforce racial segregation. The U.S. Supreme Court ruled in favor of African American citizens who intervened, holding that the public nature of the park required that it be treated as a public institution subject to the Fourteenth Amendment regardless of who owned the park. The trustees of Bacon’s estate then moved for a ruling that the trust was unenforceable, because racial segregation was no longer permitted, so the property should revert to Bacon’s heirs. The trail court granted the motion, holding that racial segregation was an integral part of the trust, so the court could not simply amend the trust. The Supreme Court of Georgia affirmed.

Question

When an individual leaves land in a testamentary trust for use by whites only, are the Fourteenth Amendment rights of African Americans infringed if the court orders the land to revert back to the individual’s heirs rather than amend the trust to allow use by people of all races?

Warren E. Burger:

Number 60, Evans and others against Abney and others.

Mr. Nabrit you may proceed whenever you’re ready.

James M. Nabrit, III,:

Mr. Chief Justice and may it please the Court.

This case is here on certiorari to review a judgment of the Supreme Court of Georgia.

It is a sequel to Evans versus Newton decided here in January 1966.

The issue then as well as the Georgia Courts could substitute private trustees for the City of Macon in order to permit a municipal park given to the city in a will probated in 1914 to continue to be operated only for white people as the testator directed.

That part of the controversy was settled by this Court’s decision which is now the law of the case, that the park is subject to the Fourteenth Amendment prohibition of racial discrimination.

The issue now is different, I think radically different.

It is whether the decision of this Court can practically — can be practically frustrated and subverted by the holding now here, the holding of the Georgia Courts that a municipal park is forfeited and reverts to the heirs of the long dead testator merely because the constitution in this Court’s decision requires that the city admit negroes to the park along with whites.

The petitioners are negro citizens of Macon who argue that Baconsfield Park must be operated as a public park without racial discrimination and we contend for several reasons that the Georgia Court’s ruling, that the public must forfeit this park to the testator’s estate violates the federal constitution, specifically, the Supremacy Clause of article six and the Equal Protection Clause of the Fourteenth Amendment.

Now the factual record in this case is also radically different in that it is much more complete than the record in Evans against Newton.

Let me briefly describe the background of the case.

Augustus Octavius Bacon died in 1914.

He had been elected to four terms in the United States Senate and he was also a distinguished lawyer who, it is relevant to, of note, had published a digest of the opinions of the Judges of the Supreme Court in 1872.

He wrote his 32-page will in his own hand in 1911 and that Will left Bacon’s farm and trust to his wife and surviving daughter during their lives, and after their deaths, in trust for and I quote “The sole perpetual and unending use, benefit and enjoyment of the white women, white girls, white boys and white children of the City of Macon.

The Will made no provision for any reversion of the property and it was not a conditional gift.

Rather Bacon conveyed to the city and again I quote, “all right, title and interest in and to said property here and before described and bounded both legal and equitable, including all remainders and reversions in every estate in the same of whatsoever kind.”

Bacon’s will provide that the land should be forever used and enjoyed as a park and pleasure ground and he said that under no circumstances should it be sold or alienated or dedicated to any other use.

The will mentioned that he wanted the park to be a memorial for his two dead sons that he had no descendants baring the name Bacon and he stipulated that the park should forever be known as Baconsfield.

Now as my adversary has emphasized, Bacon quite plainly stated that he did not want negroes to use this park, and this was not he said because of any unkindness or want of consideration for negroes but because he thought that the two races should be separate in social relations and should not occupy the same recreation grounds.

So we cheerfully concede that it violates Bacon’s solemn intent for negroes to use this park but we also want it to be clear that it equally violates Bacon’s intent to destroy the park and revert it to his heirs but he never contemplated this situation.

His will contains nothing to indicate that Bacon prefer that his park be destroyed and revert to his heirs rather than to have negroes use it.

His intent on this question cannot be known, it’s unknowable and that’s conceded in the opinion below in the brief and opposition to certiorari.

Now the city acquired Baconsfield actually in 1920, but buying the heir’s interest during the life of Bacon’s surviving daughter for an annuity for $1,665.00 yearly.

The city paid that to the heirs for 25 years and it ultimately cost the city over $41,000.00.

Incidentally that 1920 deed indicates that the total land involved was a 117.7 acres at 1917, 1920.

Since 1920 —

Potter Stewart:

The effect of that was simply to accelerate the transfer of the property to the city, am I correct?

James M. Nabrit, III,:

That’s right, Bacon’s surviving daughter didn’t die until 1944.

Potter Stewart:

And so it accelerated that.

James M. Nabrit, III,:

So the city would not have had this park until 1944 if Bacon’s Will had been followed literally but they got the park in 1920 and since then, it has been of the — that’s in those in the fifty years since then there has been a vast and direct investment of public funds.

Of course the property has been tax-exempt for this nearly fifty years and that represents a large subsidy but beyond this, the basic development and landscaping of this park was done by the WPA the Works Progress Administration and Agency of the United States.

The City Parks Superintendent testified that until the time he went out there with the WPA work as mere set him out he said.

“Baconsfield was a wilderness to use his word, this was around 1935.”

It was just a wilderness and the WPA met under his supervision work for a year, or more than a year, cutting down the underbrush, laying out the pass, digging the ponds, building benches and transforming Baconsfield from a wilderness into a usable park.

Warren E. Burger:

Do you know of any reason Mr. Nabrit why the — assuming a reversion would be otherwise valid which of course we haven’t come to yet.

Do you know of any reason why the reversion couldn’t be subjected to the lien of all this costs?

James M. Nabrit, III,:

I have not — I have no knowledge as to what the United States policy is on that.

Warren E. Burger:

I assume that the —

James M. Nabrit, III,:

There are specific statutory rights that the United States might have which I’m going to come to particularly with regard to the clubhouse building that the WPA built, a major building on the property and in that case the Mayor of the city and the Treasurer of the city made specific assurances to the United States that this property would not be released by the city during its useful life of the improvements and further, amazingly, that there would be no discrimination in this park property of the city, the city solemnly swore that this property was for the public at large in 1939.

The conception of the public didn’t include negroes apparently.

I didn’t mean to evade your question about the land but —

Warren E. Burger:

I can well say it too and —

James M. Nabrit, III,:

I think there might be one.

Warren E. Burger:

As a litigation matter I can see why the person, the clients you represent would not undertake to raise that question.

James M. Nabrit, III,:

I don’t — if there’s a — I don’t know that — my client’s contribution has been the contribution of tax payers generally to this park, city taxpayers and federal taxpayers and in all these capacities they have an investment in this park.

The roads through the park were built by the city, there’s a swimming pool out there that cost the city a hundred thousand dollars.

There’s a bath house that cost $40,000.00 in 1948, $17,000.00 worth of improvements added to that in subsequent years.

All these was taxpayers money invested in this property and all of it’s been reverted by the judgment below stands.

The — when we inspected this clubhouse building I mentioned a moment ago with Superior Court’s permission, my colleague, William Alexander found the WPA plaque, all this WPA buildings have a plaque, you know.

My colleague found this WPA plaque with only with some difficulty on that women’s clubhouse because someone had hung a mirror over it during a redecoration so another plaque coding the racial limitation in Bacon’s will was rather prominently displayed.

I think there’s no little irony in that considering the solemn assurances of none discrimination that the city official sign.

All the maintenance in this park until 1964 was done by the City Park Department.

They treated this just like any other park and the man who had been superintendent for — since 1915 testified.

He treated Baconsfield like all the rest of his parks.

The only exception was that some of the thrust income was used to add, to help beautify Baconsfield in addition to city funds.

The thrust property I quickly want to mention that’s been reverted also includes a shopping center across this street from this park and furnishes $5.00 or $7,000.00 a year annually.

This was income for the thrust, it also includes a $131,000.00 or more in cash or bonds in the bank that they got for the highway condemned further the property but this case involves — this case involves more than who gets this money when it’s the people they ask.

It involves principle.

It involves whether or not the law is going to — they are going to perpetuate this kind or racism.

James M. Nabrit, III,:

When negroes began using Baconsfield in 1963 the city concluded that it could not exclude them from the park and that was obviously correct since this Court had ruled as early as 1955, park segregation was unconstitutional and it ruled in 1957 that a municipal trust couldn’t be discriminatory in the Girard College case, Pennsylvania against the Board of City trust and the city’s answer in this case in the Superior Court stating that they couldn’t discriminate was filed.

It happens the day that this district Court decided right against Georgia where the Court invalidated Savannah’s effort that keeps negroes out of the city park.

When the Georgia Courts approve the city’s resignation to — to attempt to continue the park as an all-white facility, this Court reversed.

So now in response, the Georgia Courts have ruled that the trust failed and accordingly returned to our arguments.

We are given —

Hugo L. Black:

Did you said they have rule?

What did you say that Georgia Supreme Court had now ruled?

James M. Nabrit, III,:

That the trust has failed and I’m about to argue why I think that decision of Georgia law violates the command of the federal constitution.

Hugo L. Black:

With what consequence do they say that trust has failed?

James M. Nabrit, III,:

They say that the trust has failed and that accordingly the land and the other assets revert to the donor’s estate as a resulting trust and that therefore it’s to be distributed as part of his estate in accordance with the Will provision of the residual estate.

Now I think each of the four arguments we make is sufficient to justify a reversal.

Let me identify the four arguments each in a sense or two before beginning to develop the first one.

The first point is, that the decision below which forfeits public property applies a sanction against a federal interest and violates doctrines of national supremacy running all the way back to McCulloch against Maryland.

This forfeiture has affected in a way it happens which also discourages desegregation and is done without any justification.

The second point we will make is that, since nothing has happened —

John M. Harlan II:

Can I ask you a question, would you be making that argument if they are going to specific or ordinary clause in the will?

James M. Nabrit, III,:

Well, Mr. Justice Harlan, I think that the reason — that I would argue if I had to face that more difficult question that our legal system, that our Courts can’t be used by dead men to perpetuate their bigotry in the law, and that racism has to die with the bigot and that the legal system can’t give it perpetuity.

So I don’t believe, if I had the case here, that I would concede or I believe that I would argue, that racist trust can’t be enforced but I don’t think that case is here.

John M. Harlan II:

Perhaps that case here?

James M. Nabrit, III,:

No.

Warren E. Burger:

Suppose we — since we have you stopped for a moment, suppose you have a case that case here where — that donor in 1925 or 30 had given land for use as an airport and for no other purpose.

With either whether private reversion clause in the gift or subject to a state reversion by law and then time passed and the city grew and the airplanes got bigger and neither the runways and by rezoning became illegal to run an airport at that place so that you have a comparable posture illegal to use it for the original purpose.

Would you — do you see any parallel there or is that a totally different kind of problem?

James M. Nabrit, III,:

The way we analyze this case, Mr. Chief Justice and this has to do with the second argument I was going to summarize, is that that hasn’t quite happened here.

We don’t think the uses, that the purpose of the trust has become illegal in our case.

The park is still there for the white women and children, the boys of Macon to play in.

Nothing has happened which keeps them the beneficiaries from getting the benefit of the trust.

Now something has happened which keeps them from getting the sole use and Bacon wanted them to have the sole use to be sure but he didn’t —

Warren E. Burger:

But the purpose described in the limitation is illegal now, is it not?

James M. Nabrit, III,:

No I think not.

James M. Nabrit, III,:

The purpose of providing a park for the white women and children can still be fulfilled.

They cannot have sole use of it.

Negroes have to be admitted too but the point is, that negro use in this kind of a situation at least where you have a vast park land, negro use doesn’t diminish the white use.

It’s not a case like, as for example where you have a trust fund and if it went to one group, it had to be divided with another group, the only amount left for the first group would be diminished.

That kind of trust was the — if a trust for whites only had been declared, scholarship funds had been declared unconstitutional when Evans against Newton, it would be plain that the whites would have less if they had to share it with the blacks but that’s not true in a public park.

There’s nothing that’s happened.

The white children of Macon today are in fact using Baconsfield Park because it was a state as in effect and the park is there open to public today.

So I think it’s not like an airport where the runways are too short for the planes.

The park is big enough for everybody now.

The third argument and I — let me make an overall point.

I think there is nothing special about Trust Law that exempts it from the command of the Equal Protection clause.

Not as the fact that the law involved is common law and that statute law place it outside the reach of the constitution.

We think this point is amply established by the decision last termed in Presbyterian Church against the Hall church where the Court unanimously concluded that Georgia Courts deciding a common law trust law must do so in conformity with the First Amendment guarantees made applicable to the states by the Fourteenth Amendment.

Innumerous cases and all — in different context make the point of our common law.

Judge May law being subject to the Fourteenth Amendment.

New York Times against Sullivan makes that point in very plain language.

The state’s libel law has to march the Fourteenth Amendment and Edwards against South Carolina involving a common law crime illustrates the same idea in another context.

Of course trust law is normally a matter for state determination.

Of course Georgia has the last word in defining its common law trust as a general matter but that only opens the question we submit of whether the law is settled by Georgia conforms to the command of the constitution as to that question that I address myself with these four arguments.

Our first argument as I indicated is rooted in the fundamental proposition announced in McCulloch against Maryland in 1890.

The states have no power to take action hostile to a national interest not even as then when using the basic taxing problem may they penalize a federal interest.

And we think the decision below violates the command of federal supremacy, not because this Court’s mandate has been directly flouted, but rather because the state has decreed that valuable city property must be forfeited entirely on the ground that the constitution and the decision of this Court require that the city admit negroes to Baconsfield.

We complain not that there will still be segregation.

We can’t know how the heirs will use the land.

We complain about the fact of the forfeiture itself and this valuable facility which is valuable to the taxpayers in part because of its — of the original value and in part because the taxpayers have added to it in multiple ways, is being taken away solely to prevent negroes from using this park.

This is a direct drastic sanction against compliance with what the constitution compelled and this Court’s decision compel.

Now here the sanction has the added characteristic and the added impact of discouraging this desegregation just as in the Prince Edward County School closing case.

The case — the closing of the park conveys to negroes unmistakably the plain message that if you will search your Fourteenth Amendment rights it won’t get you anything.

All you’ll do is destroy the parks for everyone and that obviously discourages compliance with the constitution.

That might be our — the only possible justification that might be offered for such a forfeiture would be a clear direction by attesting that Bacon made no such choice.

James M. Nabrit, III,:

The Georgia Courts made this choice.

Our respondents argue that the trust fails automatically on January 17, 1966, the day the moment this Court announced its decision.

That’s a groundless and artificial argument.

They never adopted it until a month — more than a month later.

The minutes of their board meeting at page 346 of the appendix show that in the Board of Marriages of Baconsfield discussing this Court’s decision didn’t conclude that it reverted.

It was only after the Georgia Supreme Court in March that reverted, the disposition became announced for many of them the only sound jurisprudential view is that the Georgia law comes from human decisions and this is the premise on which such basic law is Uriah against Tompkins stands.

I have talked a little bit about our second argument, the fact that nothing’s happened which prevents white women and children from using the park and the point we make in our brief is that the only manner in which the State Court could have logically reached its conclusion that the uses of the trust have failed is by a legal premise, an implicit legal premise, that negro use as a matter of law diminishes the white use because negroes are per se offensive or obnoxious.

And such a ground we say, imposes a badge of inferiority on blacks which the Fourteenth Amendment prohibits.

We do not contend that this was consciously the theory adopted.

It never said anything like that.

What we contend is that’s the only logical foundation on which the conclusion can rest.

The case might be more difficult if the court below had not have had no alternative under its law but it play — but there were no Georgia decisions.

No one has come up with any settled Georgia case law that forced this resolve.

The side place statute offer plain alternative and the only case that has ever been cited, it is not cited, the respondents don’t cite it here but they didn’t — in the court below.

This is Adams against Bass case, but in 1855 Georgia refused to apply cy pres to resettle slaves in certain states on the grounds of that particular states would not receive them and that’s the only case they’ve found.

It is before the civil war amendments and in any event it had to be read in the light of the Georgia law which made it illegal to free a slave.

Our third argument which I will not have time to argue because I would like to reserve some of my time but I will state it.

It follows the reasoning in Mr. Justice White’s concurring opinion in evidence against Newton, we add to that only that this Georgia law in 1905 which provided for racially oriented parks it facilitated testators making brands of this kind but beyond that we think that the law plainly encouraged racial discrimination, and it — as Mr. Justice White’s opinion in 1966 stated, we think incurably taints the racial condition in the trust and we think that tainted provision should not be given any effect, should not be even be given effect in effecting the reverter.

Byron R. White:

Mr. Nabrit would it have been illegal for him to, for the testator to have left the park for joint use of whites and negroes?

James M. Nabrit, III,:

I think it’s still, as to judges the white women and children and negro women and children I think there is plainly no authorization for it so —

Byron R. White:

You mean as a matter of trust law or —

James M. Nabrit, III,:

No, well I am talking about 69504 now.

Byron R. White:

But was there a law against whites and negroes using public parks together?

James M. Nabrit, III,:

I am — I have not found a law making it a crime, statewide.

There were certainly local laws of that kind.

That was one in the Holmes case, Holmes against –I know of none applying to, to make it in 1914 ,1912.

But well let me amend that.

Section 69505 which is the companion to 69504 made it the obligation of the city to use its police powers to enforce the racial condition in Bacon’s trust.

So as soon as the city accepted Bacon’s trust, Bacon’s command the racism did become the law of Macon and for that reason additionally we urge that the case ought to be treated like an invalid city code.

Thank you.

Warren E. Burger:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice and may it please the Court.

It seems to us relevant that this case is both a Wills case and a packs case neither one alone but both together.

And yet it is not a case about how to construe a will nor is it even a case about which restrictions in Wills should be enforced nor even which racial restrictions are bad at which to be ignored.

We are dealing with a racial restriction made some years ago, half a century ago, and the question is, what effect, if any, can be given to it now, half a century later, in light of the constitutional rule which has become clearer in that span of time but importantly also we are dealing with the provision in the will that affects not any sort of property but public property, a public facility of some substance here in the city of Macon.

And in that sense we are concerned with the question whether a public facility shall be closed because the rule of non-discrimination has been held to apply to it as this Court held two terms ago.

We are not saying simply that State Courts can never enforce a restrictive covenant or restrictive provision in the will.

We are saying rather that a provision which has been held unenforceable.

No question about that at this point.

This is not Shelly and Kraemer.

The Court has held that this restrictive covenant with respect to this park cannot be enforced.

So the question is rather whether indirect effect can be given to that provision by decreeing a reversion, the effect of which is to withdraw a public facility from the municipality which otherwise enjoyed it and from all the people in it, and to do so with the inevitable impact that effect of discouraging those who in similar circumstances would sue to gain entry as they have a constitutional right to do when we are dealing with this sought public facility.

We might rest on the proposition that when this factors coincide, the State Court cannot effectuate a racial covenant by decreeing a reversion even if the testator had provided specifically that that should be the result in the event that segregation were no longer possible in this public facility.

It seems to us however that this case is a good deal easier because here clearly the State Court had alternatives.

We are not faced with Senator Bacon’s clear intent that in these circumstances there shall be a reversion.

Nor are we faced with a state law that does not provide for some accommodation when the exact intention of the testator is impossible.

We’re not faced with one of those few states where cy pres is not the law.

Here we have a Georgia law which on its face seems to permit carrying out the dominant purpose of the testator and varying some of his incidental provisions when they become impossible of performance as here the racial limitation has become impossible at the foremost.

The case is easy both because it seems obvious that the Georgia Courts had options and because having options and having seemed to strain, the injury is all the greater to those who — because of whose threatened presence in the park, the park is closed.

Whenever the stage is seen to strain on the face of it in order to prevent the rule of desegregation from going into effect, obviously the injury to those excluded is all the greater and the discouragement in like circumstances is clear.

Warren E. Burger:

What would you think Mr. Claiborne about the hypothetical case I suggested to Mr. Nabrit, if the illegality which was used to trigger a reversion was a rezoning which had made the use of the land no longer legal and permissible as an airport?

Louis F. Claiborne:

I would think there were two answers Mr. Chief Justice.

The ones Mr. Nabrit gave which is that in that circumstance there was no way of approximating the purpose of the testator in providing funds for an airport.

Warren E. Burger:

Now are you talking about some form of cy pres?

Louis F. Claiborne:

In that circumstance cy pres would not seem to offer an obvious alternative but more importantly from the point of view of this Court there it seems to me there’ll be no federal constitutional question there because there is no denial of equal protection in those circumstances.

Here we’re dealing not merely with withdrawal from the public of a public facility which injures everybody.

We are dealing with a withdrawal of a public facility on account of race which in both concrete and other ways injures a particular class of citizens.

Warren E. Burger:

But it injures them all equally, does it not here?

I think in several respects it does not injure them all equally Mr. Chief Justice.

First it is — I think plain that the least advantage members of the community have the greater need for the park and therefore suffer more by its closure.

Warren E. Burger:

But that is a small part of our argument.

It does favor discrimination and discourage challenges to discrimination in comparable circumstances when challenging the exclusionary policy of any public facility which is subject to this sort of condition and when the result is that the facility is closed and you gain nothing by your efforts, obviously this has been a discouragement to the exercise of the constitutional right to seek entry on a non discriminatory basis to public facilities.

And finally there is always the injury which results when the state puts its power, its prestige, its official declaration, on the side of discrimination and sends in effect the entry of these negroes to this park would be so obnoxious that we presume Senator Bacon would have closed his park rather than to have allowed them in.

The case would be —

Hugo L. Black:

May I ask you, suppose Senator Bacon, the day after he died, this Court had ended down an opinion that the park could not be run as this one he directed it be run and his heirs had two days later raised the question on it in challenge.Would you like to make the same arguments you are making now?

Louis F. Claiborne:

I think the —

Hugo L. Black:

Then so dedicated to the public that it couldn’t be withdrawn.

I think that argument might be available Mr. Justice Black.

I think this case is far stronger because the park has operated for half a century as a public facility which not only increases the injury which results from its closure, the implications involved in that closure on account of race, but also in the traditional terms of the cy pres doctrine, the effort to continue a Will which has taken effect, which has been in existence for some time is recognized as being much stronger than in the event —

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Louis F. Claiborne:

— when it is simply declared at the beginning that the trust has failed.

Hugo L. Black:

You mean constitutional this far?

What provision of the constitution will make it strong there to you?

Louis F. Claiborne:

That there I think it’s only in terms of the injury, Mr. Justice Black, but also in terms of the options available to the estate after all, constitutional law is some measure a question of possibilities and alternatives when the alternatives are evenly balanced, it may be that the constitution views the act as neutral.

When withdrawing a public facility after half a century is done for the sole purpose of avoiding a mixing of the races in that public area.

It seems all the more a reflection of an official policy against desegregation and that is constitutionally relevant.

This case, it seems to us in the end when we talk about the Georgia Court having preferred one option to another, we don’t of course impugn the individual judges to judge the Courts involved.

The case would be perfectly clear, I suggest if the Georgia Courts had been applying a federal, a state statute which provide it in these terms whenever a racial restriction is included in the Will which establishes a public facility notwithstanding any indication as to the testator’s intent as to what should happen when that racial restriction that can no longer be enforced, there shall be a reversion.

That would be the clearest indication of the state’s singling out this condition as critical as distinguished from all the other circumstances where cy pres would be applied.

That is really this case.

For these reasons we suggest that the judgment below should be reversed.

Warren E. Burger:

Mr. Jones you have only about three minutes, do you wish to outline a few preliminary matters for us?

Frank C. Jones:

Yes, I’ll take advantage of that opportunity.

Mr. Chief Justice, and may it please the Court.

The case for the respondents can be stated very simply I believe.

Senator Bacon devised his property in trust with the sole and exclusive benefit of the white women and children of the city of Macon.

This Court decided in Evans versus Newton that Baconsfield cannot be operated in accordance with that racial restriction, either by the city of Macon is trustee or by private trustees, excepting and acting in accordance with that decision.

The Supreme Court of Georgia then held that under state law, the sole purpose for which this trust was created applying several rules of construction under state law had failed that the trust terminated for that reason without regard to the racial limitation in the slightest.

And because of a state statute providing that whenever a trust failed for any reason, a resulting lack of trust is implied for the benefit of the donor or testator or his heirs because of that statute again having nothing to do with race or discrimination in any respect, this property reverts under state law back to the heirs.

Hugo L. Black:

How long is that statute applied?

Frank C. Jones:

Your honor it is a statute of long vintage.

It’s certainly predated 1911 when this will was made.

So far as I know its been in the Georgia Law for a hundred years or more.

I could get the exact date if the Court would like to have it.

It’s a statute of long-standing.

So our position may it please the court, the decision of the Georgia Supreme Court involved nothing more than the application of state law to a state will and is completely consistent with the holding of this court in Evans versus Newton.

We say that no constitutional rights of the petitioners in this case have been denied and respectfully urge that the Supreme Court of Georgia decision should be availed.

I’ll complete my argument tomorrow sir.