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...
