Anderson's Estate

• Decision Date: 28 February 1921
• Docket Number: 358,207
• Citation: 269 Pa. 535,112 A. 766
• Parties: Anderson's Estate
• Court: Pennsylvania Supreme Court

112 A. 766

269 Pa. 535

Anderson's Estate

Nos. 207, 358

Supreme Court of Pennsylvania

February 28, 1921

Argued February 8, 1921

Appeal, Nos. 207 and 358, Jan. T., 1921, by E.M. Anderson et al., from decree of O.C. Chester Co., No. 8448, appointing trustee in estate of Joseph Anderson, deceased. Affirmed.

Petition for appointment of trustee. Before HAUSE, J.

The opinion of the Supreme Court states the facts.

The court entered a decree appointing a trustee.

Geo. F Anderson and Harry I. Anderson, next of kin and administrators d.b.n.c.t.a., and Eber M. Anderson, next of kin, appealed.

Error assigned was above decree, quoting it.

The decree of the court below is affirmed and the appeals are dismissed at the costs of the respective appellants.

John J Sullivan and George B. Johnson, with them George S. Dewees, for appellants, cited as to powers of the administrators d.b.n.c.t.a.: Evans v. Chew, 71 Pa. 47; Sheets's Est., 215 Pa. 164; Sears v. Scranton Trust Co., 228 Pa. 126.

Where a trustee has, under the instrument creating the trust, the alternative of applying the fund to a charitable purpose or to a purpose which is not regarded as charitable within the technical meaning of that term, the trust will not be enforced: 5 Ruling Case Law, p. 341, par. 72; Hadley v. Forsee, 14 L.R.A. (N.S.) 90.

Harris L. Sproat, for appellee. -- Testator having created a trust for charity, then, although he expressly conferred upon his "executors or the survivor of them" the power to distribute for such purpose "as in their judgment may seem best," nevertheless, upon the death of the executors leaving undistributed trust assets, jurisdiction to fill the vacancy in the trusteeship is conferred upon the court by the Act of 1895: De Silver's Est., 211 Pa. 459; Dulles's Est., 218 Pa. 162; Toner's Est., 260 Pa. 49.

Where a bequest is indelibly stamped with a trust, the property will not revert to the heirs of the grantor, even though the trustee fail or the object of the trust ceases to exist: Cowan's Est., 16 Pa. C.C.R. 518; Tenth Presbyterian Church, 8 Pa. Dist. R. 323; Com. v. Connellsburg Boro., 25 Pa. C.C.R. 433.

Before MOSCHZISKER, C.J., FRAZER, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

With the consent of the attorney general, a petition was filed in the court below, under the Act of May 23, 1895, P.L. 114, averring that testator had owned a property in West Chester, Pennsylvania, which became part of his residuary estate; that his executors had all died leaving it unsold, though testator had authorized them to sell it, and as to the proceeds had provided as follows: "I direct my said executors or the survivor of them to distribute said residue among such institutions or do such acts of charity therewith as in their judgment may seem best"; and prayed the appointment of a trustee to sell the property and distribute its proceeds as provided by the will. The heirs at law objected: (1st) Because the above quoted clause was void; and (2d) Because, if valid, the powers given to the executors enure to the administrators d.b.n.c.t.a. The court below overruled the objections, appointed a trustee, and these two appeals followed.

The first objection is founded on the claim that, under the clause above quoted, the executors had power to make distribution among "institutions" which are not charitable in their nature; that doing "acts of charity" are not necessarily making charitable gifts within the meaning of the statute; and hence since it was possible, in either event, for the executors to have appropriated the proceeds to other than "religious, charitable, literary or scientific" uses, the gift was void under the principle that where power is given to distribute to other than such uses, the trust will not be enforced: 5 Ruling Case Law 341. It may be conceded this principle is correctly stated, but it is inapplicable here, since we agree with the court below...