Powell Estate

• Decision Date: 02 June 1950
• Docket Number: 1495 of 1942
• Citation: Powell Estate, 71 Pa. D. & C. 51 (Pa. Commw. Ct. 1950)
• Parties: Powell Estate
• Court: Pennsylvania Commonwealth Court

71 Pa. D. & C. 51

Powell Estate

No. 1495 of 1942

Common Pleas Court of Philadelphia County, Pennsylvania, Orphans Division

June 2, 1950

Exceptions to opinion of hearing judge.

Frank F. Truscott, city solicitor, and Joseph P Gaffney, Jr., assistant city solicitor, for exceptants.

William J. Fuchs, David F. Maxwell and Edmonds, Obermayer & Rebmann, contra.

Before Sinkler, P. J., Klein, Bolger, Ladner, Hunter and Boland, JJ.

OPINION

The facts appear from the following opinion of

KLEIN J., Hearing Judge.

Edward Powell, a resident of Philadelphia, died April 22, 1941, leaving a will dated October 8, 1917, and eight codicils thereto.He made the following provisions in his will for the creation of a trust fund which he designated the " Edward Powell Fund" :

" ITEM 12 -- Of late years it has appeared to me that the blessings and privileges of American Citizenship have not been valued at their true worth and are not appreciated as they were in years past, and with the desire to help change and improve this condition, especially in the City of Philadelphia, and as an incentive to others to give their best services to the end that any man or woman who resides here may be proud to say, " I am a citizen of no mean country" .I am moved to make the following bequest.

" I give and bequeath to the City of Philadelphia, in the State of Pennsylvania, United States of America, the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS in par value of the average securities, excluding the stock of the Powell Knitting Company, which may come into the hands of my Executors at the time of my decease, said average to be agreed upon by my Executors and the representatives of said City of Philadelphia, IN TRUST to, for and upon the following conditions, uses and purposes:

" The fund created by this bequest of ONE HUNDRED AND FIFTY THOUSAND DOLLARS shall be called, named and known as the " EDWARD POWELL FUND", the principal thereof to be maintained at said sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS, and in the event of said principal sum, by reason of depreciation in the value of the securities in which it may be invested, or from any other cause, should become less than said sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS, then such deficiency shall be made up by applying the income, or so much thereof as may be necessary to bring it up to the said original amount.

" The income from this principal sum shall be allowed to accumulate for the term of four years from the date the said fund shall come into the hands of the Trustee, and at the expiration of said period shall be divided into two equal parts, to be awarded distributed and disposed of as follows:

" The then Mayor of the City of Philadelphia shall appoint a committee of three citizens of Philadelphia, who at the time of their appointment shall hold no public or political office or appointment and be as far as possible free from any and all sectarian or political influences, which said Committee shall by a majority vote cause said income to be divided into two equal parts and award the same in manner following, that is to say:

" One equal half part of said income unto any citizen of the City of Philadelphia, irrespective of sex, race, creed or color, who shall have in the judgment of a majority of said Committee by his or her individual efforts and personal application to the Manufacturing and Commercial interests of the City of Philadelphia in the previous four years, succeeded in producing the best results for the benefit and prosperity of the City of Philadelphia in that line.

" And the remaining one equal half part of said income unto any citizen of the City of Philadelphia, irrespective of sex, race, creed or color, who shall have in the judgment of a majority of said Committee by his or her individual efforts and personal application to the Civic interests of the City of Philadelphia in the previous four years, succeeded in producing the best results for the benefit and prosperity of the City of Philadelphia in that line.

" The Committee shall have prepared suitable medals or decorations to be given to the persons receiving the awards, the expense of which shall be paid out of the income, which medals or decorations shall have engraved thereon the name of the person to whom the award is made with suitable inscription stating the purposes of said award, to the end that it may encourage any and all legitimate efforts on behalf of the citizens of Philadelphia for its improvement and prosperity.

" That the said medals or decorations, together with the sums awarded, shall be publicly delivered to the recipient by the then Mayor of the City of Philadelphia in the City Hall, or other public place in the said City of Philadelphia to be selected by him for that purpose.

" If after due and proper investigation, inquiry and full consideration, said Committee shall be unable to find a sufficient number of citizens duly qualified to enable them to make all of said awards, then such part of said income which cannot be awarded shall be added to and become a part of the principal sum, the income from such enlarged or increased fund to be used for future awards.

" In no case shall the date or time of making the awards be changed, that is to say, the first award shall be made four years after the fund comes into the hands of the Trustee and every four years thereafter, except in case the principal sum should from any cause fall below the original sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS and thereafter every four years from the date of the last award; so that a full period of four years shall have elapsed between the awards.

" If the City of Philadelphia, named as Trustee should decline to accept said Trust, or if for any reason the said Trust should be held to be inoperative or impossible of execution in accordance with the terms and conditions under which it is given, or if the Committee or Committees named under the terms thereof should be unable for a period of Twelve years to find anyone duly qualified to receive said award and a period of twelve years should elapse without any award or awards being made under the terms of said trust, then said trust shall terminate and end and the said principal sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS together with any and all additions thereto, shall revert to and become a part of my residuary estate."

On November 30, 1923, he executed the fourth codicil to his will by which he modified the above quoted provisions of his will.The codicil starts with this language: " I, Edward Powell, of the City of Philadelphia, Manufacturer..." and then provides:

" ITEM 1 -- In my original will heretofore mentioned in Item 12, I bequeathed to the City of Philadelphia under certain limitations and conditions, uses and purposes the sum of One Hundred and Fifty Thousand Dollars in average par value of the securities in the hands of my executors In Trust the income to be used for the benefit of the manufacturing commercial and civic interests of the City.Since that time a prominent citizen of the City has by gift anticipated that portion of the bequest relating to the civic interest of the City which makes it almost necessary to change and reconstitute the said bequest and to confine its uses to the manufacturing and commercial interests of the City.I, therefore, reconstitute the said bequest as follows: the sum of one hundred thousand dollars in securities of average par value remaining in the hands of my executors shall be bequeathed to the City of Philadelphia under the same conditions, limitations and uses except that the income derived from the same shall be applied exclusively to the manufacturing and commercial interests of the City in the same manner as contemplated in the aforesaid Item 12."

Testator's widow, Ida W. Powell, and the Girard Trust Company filed an account as executors and the same was confirmed by adjudication of Stearne, J., dated December 11, 1942.Pursuant to this adjudication, the executors, on January 10, 1943, paid the City of Philadelphia as trustee, the sum of $ 100,000.

On May 22, 1948, the Mayor of the City of Philadelphia appointed a committee of three residents of the city to make the award.The committee consists of William M. Hollenback, Philip Klein and Walter T. Grosscup.This committee announced its intention of making an award at the end of the year 1948 and of limiting its consideration of possible eligible candidates for the award, to persons residing and voting within the geographical limits of the City of Philadelphia.

The executors, together with testator's children, filed a petition for a declaratory judgment construing the testamentary provisions under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, as amended.They contend: (1) that testator did not intend to limit the recipients of the award to residents within the geographical city limits of Philadelphia and, (2) that the committee has no authority to make the award at this time.

A responsive answer has been filed by the City of Philadelphia and the committee appointed by the mayor, whereupon, the matter came on for hearing before me on November 14, 1949.

I.Must Recipient of Award Be a Resident of the City of Philadelphia?

Let us first concern ourselves with the meaning of the phrase " citizen of the City of Philadelphia", as used by Edward Powell, testator.

The City of Philadelphia contends that this is a term of clear definite and well understood meaning, viz., a person resident within the boundaries of the city and enjoying the rights and privileges of its body politic.Petitioners, on the other hand, contend that the language used by testator is ambiguous and the word " citizen" is not a word...