In re Trexler Orphans' Home.

• Docket Number: Sept. T., 1931, No. 217.
• Decision Date: 02 January 1933
• Citation: 19D.&C.231
• Parties: In re Trexler Orphans' Home.
• Court: Pennsylvania District and County Court

19 D.&C. 231

In re Trexler Orphans' Home.

Sept. T., 1931, No. 217.

The Judicial Districts of Pennsylvania.

January 2, 1933.

Corporations — Charitable corporation — Orphans' home — Dissolution — Distribution of assets — Fund received from decedent's estate — Jurisdiction — Common pleas — Orphans' court — Cy pres doctrine — Restrictions on use of fund.

1. A court of common pleas, upon dissolving a corporation of the first class in accordance with the Act of April 9, 1856, P.L. 293, has jurisdiction to dispose of its assets, including funds received from a decedent's estate, even though as to such funds the orphans' court may have concurrent jurisdiction.

2. Where a testator left the residue of his estate in trust to found a Protestant home for orphans in the city of his domicile, and, the trustees of the corporation formed for that purpose having determined that the fund is insufficient, the court is asked to dispose of the corpus under the cy pres doctrine, it must be awarded to an institution which meets testator's every requirement, although it has other charitable purposes, without considering the relative merits of institutions otherwise qualified but not located within the said city; the principal so awarded must be kept invested as a trust fund and the income used only for the care of orphans.

Petition to dissolve corporation. C.P. Lehigh Co.

Butz & Rupp, for petitioner.

William S. Hudders, for Good Shepherd Home.

O.E. Boyle, Daniel Miller, George M. Lutz and Charles K. Derr, for Bethany Orphans' Home.

Oliver W. Frey, for Lutheran Orphans' Home in Berks County.

Groman & Rapoport and H.J. Hartzog, for Children's Home of Bethlehem and Allentown.

Butz & Rupp, for Children's Aid Society of Pennsylvania.

RENO, P.J., January 2, 1933.

The Henry A. Trexler Orphans' Home is a corporation of the first class.Its petition praying for a dissolution is before us.It avers, inter alia, that by decree of the orphans' court of this county it received a fund hereinafter described and that the purpose for which it was received has altogether failed.Accordingly it prays, as stated, for an order of dissolution and authorizing it to distribute its fund "so that it may not be diverted from the objects and purposes set forth in the charter of petitioner and in the will of the testator."In short it asks the court, pursuant to the cy pres doctrine, to apply its fund to a purpose consistent with its charter and the will of the original donor of the fund.

At various times leave was granted to the following corporations to intervene: The Children's Home of Bethlehem and Allentown, the Bethany Orphans' Home, the Children's Aid Society of Pennsylvania, the Lutheran Orphans' Home in Berks County, and the Good Shepherd Home.The Attorney General also granted permission to each of these to intervene in the proceedings.

Testimony was taken in relation to the claims of these several institutions and from it the following facts have been formulated.

Finding of Facts

(a) General

1.Henry A. Trexler, a citizen of the City of Allentown, County of Lehigh, State of Pennsylvania, died January 28, 1905.

2.By his last will and testament dated 1897(without month or day), and duly probated February 17, 1905, he devised his residuary estate, after several life estates, "in trust to the Mayor of the City of Allentown, Pennsylvania, to be used immediately to found a Protestant Orphans' Home to be located in the City of Allentown, Pennsylvania."

3.The life estates terminated in 1914, and Hon. Charles W. Rinn was then mayor of the City of Allentown.

4.The Henry A. Trexler Orphans' Home was incorporated by decree of the Court of Common Pleas of Lehigh County on June 7, 1915, "to establish and maintain a home for orphan children of Protestant parents and to provide for their care, training and education."

5.Charles W. Rinn, the mayor of the City of Allentown, reported "that he is now unwilling to administer said trust upon his own responsibility" and as a result of proceedings in the Orphans' Court of Lehigh County, which need not be here outlined or detailed, the residuum of the estate of Henry A. Trexler, deceased, was, pursuant to the decree of that court, paid "to the Henry A. Trexler Orphans' Home [the corporation mentioned in paragraph 4, supra] for the purpose of immediately founding a Protestant orphans' home and for carrying out the provisions of the will of the deceased in reference to said trust so far as the same can be ascertained and carried into effect consistent with law and equity."

6.The Henry A. Trexler Orphans' Home received the fund in December 1915 and since that date has canvassed and debated many plans for the establishment of an orphans' home and is now "of the opinion that the funds in its hands are entirely inadequate for the establishment of a home pursuant to the intention of the testator and the purposes expressed in the charter of said corporation, and that a survey of the charities in the City of Allentown and the community needs establish the fact that it is unlikely that the funds and property in the hands of the corporation could be wisely used to build a home and to maintain the same, since prudence would require the accumulation of a large endowment fund to insure the permanency of the home, and there is no likelihood that such an endowment fund could be raised by popular subscription or otherwise in the City of Allentown."

7.At a meeting of the corporation on August 21, 1931, the following resolution was adopted:

"Resolved, after the most careful thought and deliberation, and the discussion of various suggestions, that it is the unanimous opinion of the Board of Directors of the Henry A. Trexler Orphans' Home, that the assets in the hands of the corporation, amounting in the aggregate to the sum of $103,384.68, are insufficient in amount to warrant an undertaking to build a home for Protestant orphan children, within the intent of the will of Henry A. Trexler, deceased, and the purposes for which the corporation was formed;

"That if any home were erected a large fund should be established properly to endow the same to provide an annual income to carry on the work of such a home;

"That after a careful survey of conditions in the City of Allentown and the activities of existing charities, the board is of the opinion that it is not likely that a home, such as was intended by the testator and contemplated in the purposes of the corporation, can be established in the City of Allentown for many years to come;

"That a proper application be now made to the Court of Common Pleas of Lehigh County to surrender the charter of the corporation, requesting that it be now liquidated and that the property of the corporation be distributed as the court may deem best, and as nearly as may be to carry out the purposes of the corporation and the charitable intent of Henry A. Trexler, deceased, as set forth in his will."

8.The corporation has the following assets: Real estate, $20,000; personal property, $83,384.68; total, $103,384.68.

(b) The Good Shepherd Home

1.The Good Shepherd Home was organized on February 21, 1908, when the first orphan child was taken into the parsonage of the present superintendent, the Rev.Dr. John Raker, at No. 630 St. John Street, Allentown, Pa.On April 1, 1908, the first property was purchased for the use of the home at Sixth and St. John Streets, Allentown, Pa.The home still occupies that site and adjacent property since purchased.The property now consists of a tract of land on St. John Street, between Fifth and Sixth Streets and extending to Chester Street on the rear.Upon that property are two buildings for children and cottages for girls, babies, and old people.In addition to this property, the home also owns a farm of approximately 156 acres and other unimproved land on Fifth Street between Chester and Cleveland Streets near the property on St. John Street already described.

2.The home was incorporated on November 15, 1909, by a decree of the Court of Common Pleas of Lehigh County and therein it is set forth that the purpose of the said corporation is: "The said corporation is formed for the purpose of providing a Christian home for crippled orphans, infant orphans, destitute children, old people, and aged or disabled ministers."

3.The Good Shepherd Home is affiliated with the Ministerium of Pennsylvania, which is the governing body of the United Lutheran Church in America and has ecclesiastical authority over the churches in the eastern part of Pennsylvania.The superintendent is an ordained minister of the Lutheran Church and its board of trustees contains members of that denomination.

4.The purpose of the Good Shepherd Home is to provide a Christian home for orphan children, crippled orphan children, destitute children, old people and aged and disabled ministers.The benefits of the home are not restricted to children of Lutheran parents.There are presently in the home 15 children who are of Lutheran parents, 10 of Reformed parentage, 5 of Mennonite, 4 of Methodist, 3 of Evangelical, 2 of Baptist, 1 of United Brethern, 3 of Roman Catholic 2 of Greek Catholic, 1 of Hungarian Catholic and 17 children whose parental religious affiliations are unknown.

5.There are presently 63 children and 32 old people in the institution.Of the children 28 are crippled.Twenty-eight of the total number of children are from the City of Allentown.During the 25 years of its existence the home has helped almost six hundred needy children and about sixty old people.

6.In addition to providing support and maintenance, the Good Shepherd Home provides an education for them by sending them to the public schools of the City of Allentown, including the high school, and in some instances to private business colleges and to Muhlenberg College.At present one of its charges is a student at the Mt. Airy Lutheran Theological Seminary.Those children who are not able to...