Written by: Laird Minor, Eamon Flynn
The Lawsuit
A suit was brought against Clemson University over its “life trustees” serving on their board of trustees. NOLAS Trading Co. and John Sloan, taking over from his father, Ned Sloan, brought suit against Clemson over these trustees. Plaintiffs argued that these trustees violated the South Carolina Constitution of 1895, which states that no public officer, other than officers of the militia or notaries public, can serve for life or for good behavior.
Thomas Clemson’s will states, “The university shall be under the management and control of a board of thirteen trustees, composed of the seven members nominated by the will and their successors, and six members to be elected by the General Assembly in joint assembly.” The will was accepted by the State legislature in 1894, a year before it adopted the South Carolina Constitution of 1895, which prohibits the appointment of public officers, such as the life trustees mentioned in the will.
Clemson defended the life trustees on their board by claiming that even if the appointment of life trustees is unconstitutional, the will that established the trustees is governed by charitable trust law and the doctrine of equitable deviation. Because of this, Clemson believes South Carolina probate law prevents the General Assembly from altering its trust and that any changes to the trust must be approved by a court of equity. A South Carolina law states, “(a) The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor’s probable intention.” SC Code §62-7-401. This creates an opportunity for the courts to weigh in on this issue and make a change to the trust.
What The Courts Can Do
The Court of Appeals or the South Carolina Supreme Court could reform the will if they find the life trustees section to be unconstitutional. The life trustees section could be interpreted to provide that those trustees would serve the same 4-year term as the state-appointed trustees. The Court of Appeals or the Supreme Court could also interpret the will to provide that the vacancies of the life trustees should be filled in the same manner as the other trustees. This interpretation would have the life trustees nominate a candidate, and the General Assembly would ratify the nominees.
There are other potential ways the Courts could interpret the will, and their decision could make substantial changes to Clemson University’s Board of Trustees.
To look at the will itself, click on the link below: