Pruner's Estate.

• Docket Number: No. 7553.
• Decision Date: 29 August 1934
• Citation: 21D.&C.502
• Parties: Pruner's Estate.
• Court: Pennsylvania District and County Court

Page 502

21 D.&C. 502

Pruner's Estate.

No. 7553.

The Judicial Districts of Pennsylvania.

August 29, 1934.

Wills — Interpretation — Meaning of words — Presumption of use in ordinary sense — Charitable trust — "Friendless children" — Loss of parent or parents by death or abandonment — Direction for placement at specified age — Necessity for immediate action — Territorial limitation of beneficiaries — "Town" — Corporate boundaries — Postoffice delivery limits — Violation of testator's directions — Effect on continuance of trust — Reversion of corpus to heirs at law — Correction of abuses.

1. In the absence of a clear intention to the contrary, the presumption is that testator used the words employed in his will in their usual and ordinary sense.

2. A testamentary direction to found a home for "friendless children", followed by a statement that it is not to be for "pauper children but for children who have no parents", will be construed to provide a home for children deprived of one or both parents, either by death or by abandonment.

3. A direction in a testamentary instrument, creating a charitable trust to found a home for friendless children, that the inmates "are not to be under 5 years of age and when they arrive at 12 years of age places are to be obtained for them by the board of managers", imposes upon that body the duty of exercising good faith and reasonable diligence in procuring a home for each child as soon after reaching the age of 12 years as reasonably possible, but, pending such placement, the child should be permitted to stay in the home and should be maintained as theretofore.

4. A requirement of a testamentary trust creating a home for friendless children, that the inmates shall be from designated "towns", will be construed to permit the admission of children from all points within the territorial limits served by free delivery (not rural free delivery) from postoffices within those municipalities, and not merely those residing within the corporate limits, to which testator has referred elsewhere in the will in appropriate language.

5. A testamentary charitable trust will not be declared inoperative, so as to entitle testator's heirs at law to the corpus, because of alleged mismanagement or operation not in conformity with the terms of its creation, so long as it is possible, in the opinion of the court, to remedy such abuses and carry out the testator's intention.

Petition for termination of trust and award of corpus to petitioners. O.C. of Centre County.

James C. Furst, for petitioners.

N.B. Spangler and R.H. Gilbert, for respondent.

FLEMING, P.J., August 29, 1934.

This case is before us upon the petition of the children and legal representatives of Sallie M. Hayes, deceased, praying that the trust established by the last will and testament of E.J. Pruner, late of the Borough of Bellefonte, deceased, creating what is known as the "Pruner Orphanage" be declared inoperative and that the trust funds and property of the same be vested in the petitioners. Answers have been filed and testimony taken. From such testimony we make the following

Findings of fact

1. The decedent, E.J. Pruner, died on or about May 14, 1904, having first made his last will and testament, bearing date November 9, 1896, which was duly probated in Centre County, and letters testamentary thereon issued to The Fidelity Trust Company of Philadelphia, Pa., on September 27, 1904.

2. By said last will and testament, the decedent provided as follows:

"I give and bequeath in Trust to the Corporation of Tyrone and the Corporation of Bellefonte, Pa., the old Homestead which I own at Bellefonte, Pa., for a Home for friendless children and for the purpose of endowing said Home I bequeath in Trust forever to the Corporation of the Borough of Tyrone, Pa. and the Corporation of the Borough of Bellefonte, Pa. the Brick Building on Penna Avenue near Juniata River known as the Pruner Block and also the Block corner Penna Avenue & 11th Street known as the Hoover Block and also my land in the State of North Dakota and my land in State of Kansas and my land in Taylor Worth & Rush Township, Centre Co. Pa. for the purpose of an endowment to said School. The childrent sent to said Home are not to be under five years of age and when they arrive at 12 years of age places are to be obtained for them by the Board of Managers of the Home. When there is an excess of Revenue for the support of Friendless Children from the Towns of Tyrone and Bellefonte then Friendless Children can be admitted from Altoona, Pa. It is distinctly to be understood that this Home is not to be a Home for Pauper Children but for children who have no parents. I appoint the Fidelity Trust and Safe Deposit Co. of Phila my Executor and to carry out the provisions of this Will."

3. A codicil or codicils were added thereto as follows:

"Should there be any Reasons why the Borough of Tyrone and the Borough of Bellefonte Cannot Carry out the provisions of this will then the property for said Home is bequeathed to my niece Sallie M. Hayes

                                                      E.J. PRUNER
                

as I have stated on page 8th of this will should there exist any reasons why the Borough of Tyrone and the Borough of Bellefonte Cannot Carry out the provisions of this Will in relation to the Home for Friendless Children then the Property that was bequeathed to the Borough of Tyrone and Borough of Bellefonte for the purpose of a Home if such becomes invalidated from any cause then said Real Estate is bequeathed absolutely to my niece Sallie M. Hayes of Bellefonte, Pa. and all legacies that may revert back to Estate of E.J. Pruner are for the benefit of the Home for Friendless Children provided said Borough of Tyrone and Borough of Bellefonte Can Carry out the provisions of the Will and if they cannot then all legacies that Revert back to Estate of E.J. Pruner to be vested in Sallie M. Hayes

                                                      E.J. PRUNER
                

The Houses on Penna Avenue Tyrone Pa near Paper Mill I give in Trust to Clara R. Moyer she to receive the Rents and Income from the same during her natural life. She keeping the same in Repair and Paying the Taxes on the same and at the Death of Clara R. Moyer the two Houses to Revert back to Estate of E.J. Pruner and to go to the Home for Friendless Children provided they the Corporation of Tyrone & Bellefonte can accept the same and carry out the provisions of this will & otherwise if they cannot the two Houses to go to My Niece Sallie M. Hayes of Bellefonte, Pa."

4. The Borough of Tyrone and the Borough of Bellefonte duly accepted the said trust, took over the trust funds and property as provided in the will, and have been and still are operating the E.J. Pruner Home for Friendless Children in the Pruner homestead, situated on Pine Street, in the Borough of Bellefonte, Centre County, Pa.

5. Children have been admitted to the said Home for Friendless Children who were not residents of the Boroughs of Tyrone and Bellefonte, in the sense that they did not reside within the actual legal limits of the said municipalities, but such children were residents of the immediate vicinity thereof.

6. Children have been cared for and maintained in the said Home for Friendless Children after they have reached the age of 12 years.

7. Children have been admitted to the said Home for Friendless Children after they have reached the age of 12 years.

8. None of the children so admitted have been pauper children, in the sense that they had prior thereto become public charges.

9. Such children admitted have been friendless children, in the sense that they have been without either or both parents.

10. No evidence of mismanagement has been shown.

11. Bona fide and diligent efforts have been made by the board of managers of said Home for Friendless Children to place children in permanent homes upon their attaining the age of 12 years.

Discussion

Thompson, Construction of Wills, 2, sec. 2, says:

"There is a substantial difference between rules governing the interpretation and rules governing the construction of dispositive provisions in a written instrument. Interpretation is employed for the purpose of ascertaining the true sense of any form of words, while construction involves the drawing of conclusions regarding subjects that are not always included in the direct expression. Before construction of a will can ever take place, interpretation must be resorted to, if there is a doubt as to the testator's meaning. The meaning of the testator's words must be ascertained by interpretation before there can be a judicial construction of his will. It is only when interpretation is finished that construction begins. In interpretation it is the duty of the court to bring the written expression of the testator in harmony with the intention. If the language employed by the testator is plain and unambiguous, no rules of construction are required to aid in its interpretation, and the usual and ordinary meaning will be given to the words and terms unless a contrary meaning be clearly shown by the context." (Citing Wood v. Schoen, 216 Pa. 425.)

Furthermore, we find in Long's Estate, 228 Pa. 594, that it is held that in the absence of a clear expression of intention to the contrary, the presumption is that the testator used the words in which he expressed himself in his will in their strict and primary acceptation and ordinary sense, as called for by the whole instrument.

The intent of the testator that a home for "friendless" children should be established is clear. This intent is shown throughout the whole instrument, running down to the last codicil wherein he directs real estate originally devised for life to Clara Moyer to pass to the home for friendless children at her death. It cannot be said that testator's interest in this project lessened as additions were made to the original will. His requirement was that children should not...