Funck's Estate
| Decision Date | 19 March 1901 |
| Docket Number | 53-1900 |
| Parties | Funck's Estate |
| Court | Pennsylvania Superior Court |
Argued October 24, 1900 [Syllabus Matter]
Appeal by Martin Funck, from decree of O. C. Lebanon Co., ordering sale of real estate in the estate of John Funck, deceased.
Petition of Daniel Funck, trustee, to sell land.
From the record it appeared that John Funck died in 1865, seized among other lands of a farm, situate in the township of North Lebanon, on which was located a small cemetery, twenty-two feet by forty-six feet, which had been used for burial purposes since about 1795, and on which about fourteen bodies had been interred, including the wife of John Funck, who died in 1857, and was the last one buried there.
Subsequent to the death of John Funck, his will, dated May 12, 1863, was admitted to probate and contained, inter alia, the following:
Shortly before his death he directed that he should be buried elsewhere, and also requested that his children after his death should disinter his wife, and reinter her in the place wherein he had chosen to be buried. This was done. The fourteen other bodies interred in this burial ground were removed in 1896.
In 1896 the burial ground had become surrounded by blast furnaces, cinder banks, ore roasters and quarries. Other facts appear by the opinion of the Superior Court.
The court in an opinion by Ehrgood, P. J., found in favor of the petitioner and entered the following decree:
And now, January 2, 1900, upon due consideration, the court award to Daniel Funck, trustee, etc., an order of private sale, authorizing and empowering him to sell and convey unto the said Lackawanna Iron & Steel Company the said tract or land and the lane approaching thereto in fee, free and discharged of any and all trust, charity or use, and divested of all right of way thereto, created by the said last will and testament of the said John Funck, deceased. The said Daniel Funck to enter into security, in the sum of $ 600, with two sufficient sureties, to be approved by the court, conditional for the faithful application of the proceeds of such sale, to the uses and purposes of the trust aforesaid, as may hereafter be ordered and decreed by the court. It is further ordered that the costs of this proceeding, including counsel fee for the petitioner, shall be paid by the Lackawanna Iron & Steel Company.
Error assigned was the decree of the court.
Bassler Boyer, for appellants. -- This is a trust for charitable uses: Smith's Est., 181 Pa. 109; Perry on Trusts, sec. 706; Wright v. Linn, 9 Pa. 433.
A conveyance of land to trustees, for a charitable use, does not create a conditional estate, but only a trust for the charitable use, not liable to be defeated by nonuser or alienation, in the absence of an express condition: Wright v. Linn, 9 Pa. 433; Sellers M. E. Church's Petition, 139 Pa. 61.
The contingency permitting a private sale could not arise in this case. The court could not be of opinion, with the offer in the answer before it, that a bid of $ 300 was a better price than a thoroughly secured offer of $ 500; and the court, very prudently, refrains from saying in its opinion, that $ 300 is a better price than $ 500, by saying nothing about it, and making the order to sell for the $ 300. This alone, if there were authority to interfere with this charitable trust, which we deny, would be sufficient error to avoid the decree and require a reversal.
Thomas H. Capp, for appellee. -- The cy pres doctrine is one under which courts of chancery act, when a gift for charitable uses cannot be applied according to the exact intention of the donor. In such cases the courts will apply the gift, as nearly as possible (cy pres), in conformity with the presumed general intention of the donor: Perry on Trusts (3d. ed.), sec. 737; Philadelphia v. The Heirs of Stephen Girard, 45 Pa. 9; Bispham's Equity, sec. 126; Barr v. Weld, 24 Pa. 84; Brendle v. German Reformed Congregation of Jackson Twp., 33 Pa. 415; Burton's App., 57 Pa. 213.
A sale is frequently the best mode of executing the trust: Sellers M. E. Churchs' Petition, 139 Pa. 61; Mercer Home, 162 Pa. 232.
Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.
The will of John Funck reserved the small burial ground, 22X46 feet in size, and the narrow strip of ground leading therefrom to the lane located upon his land, out of the operation of the power to sell real estate conferred upon the executors. The express denial to the executors of the power to sell has no bearing upon the nature of the estate created by the devise of the burial ground. The burial ground was devised to " Daniel Funck, and his heirs in fee in trust and for the use of a burial ground forever." There was a direction that after the death of Daniel some other suitable person should be appointed by the orphans' court of Lebanon county as trustee, in his stead. The will contained a provision that $ 100 of the purchase money of the farm to be sold by the executors should remain a charge thereon, and the interest accruing should be paid to the trustee, and by him applied to keep the burial ground and fence in good repair and order. The will contained this designation of the future beneficiaries of this trust: " It is my will and I do further order and direct that at any time hereafter forever all my relations shall have the privilege to bury their and my kindred here, free of cost, if they wish to do so." At the time of the death of the testator the remains of the dead bodies of some of his kindred and others not of his blood had been interred and remained in this lot. The body of his wife was buried there at the date of the will, but he subsequently directed his children to cause her body to be removed and buried beside his own in a cemetery, where, in accordance with his direction, he was afterwards buried. The will contained no provision for a reversion of the land to the heirs of the devisor, and no limitation of its uses other than those contained in the paragraphs above quoted. There was no reservation to said heirs of the right to enter for condition broken, or for misuser or nonuser.
The estate acquired by Daniel Funck was a fee simple, in trust for a charitable use; and not a base fee, subject to a condition: Griffitts v. Cope, 17 Pa. 96; Barr v Weld, 24 Pa. 84; First M. E. Church of Columbia v. Old Columbia Public Ground Company, 103 Pa. 608; Jones v. Renshaw, 130 Pa. 327, 18 A. 651; Smith's Estate, 181 Pa. 109, 37 A. 114. The heirs of John Funck have no interest, direct or remote, in the property, and the standing of the appellants to question the regularity of the decree of the court below is entirely dependent upon their interests as beneficiaries under the trust: Petition of Sellers M. E. Church, 139 Pa. 61, 21 A. 145; Mercer Home, 162 Pa. 232, 29 A. 731; Nauman v. Weidman, 182 Pa. 263, 37 A. 863; Gumbert's Appeal, 110 Pa. 496, 1 A. 437. The considerations which led the testator to make this disposition of the land are of no moment, but the purpose and object of the devise must determine its character: Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553. The purpose and object of this testator was, (1) to protect from intrusion and preserve from neglect the last resting places of those already buried in this lot; (2) to provide a place where his relations might have the privilege to bury his and their kindred, free of cost, if they wished to do so. The will of John Funck was executed in 1863, and he died in 1865. The last interment in the burial ground, prior to his death, was in 1857, and since that time no body has been buried there; none of the proposed beneficiaries under the trust have ever sought...
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