Wilkey's Estate.

• Docket Number: no. 3522 of 1935.
• Decision Date: 17 December 1937
• Citation: 30D.&C.561
• Parties: Wilkey's Estate.
• Court: Pennsylvania District and County Court

30 D.&C. 561

Wilkey's Estate.

no. 3522 of 1935.

The Judicial Districts of Pennsylvania.

December 17, 1937.

Wills — Construction — Gift for erection of memorial church on family lot — Inability to carry out bequest — Cy pres — Act of May 23, 1895 — Erection of church for existing congregation seven blocks away — Erection of chapel in conjunction with existing church three blocks away.

1. The doctrine that when an essential condition precedent to a gift is impossible of performance the gift fails, has no application in the case of a testamentary bequest for a charitable use, which is governed by the Cy Pres Act of May 23, 1895, P.L. 114.

2. The heirs at law and next of kin of a testatrix have no standing to claim the residue of her estate on the ground that her direction for the disposition thereof to a charity cannot be carried out, for, even if this were so, the residue would, under the Act of May 23, 1895, P.L. 114, escheat to the public treasury.

3. Where a testatrix provides that all of the assets of her estate, except one lot, are to be converted into cash and given to a named church body to erect a church of a specified type on the remaining lot as a memorial to her family, and it is impossible for her instructions to be carried out because the lot is taken for public purposes by eminent domain and because the total value of the estate is insufficient

to erect a church of the type specified, the residue, including sums received as compensation for the seizure of the lot, will be awarded to the church body for such disposition as may be approved by the court as most nearly approaching the testatrix's desires.

4. A sum bequeathed for the purpose of erecting a memorial church on a specified lot will be awarded, if it is impossible to carry out the testatrix's wishes, for the erection of a church on a lot approximately seven squares from that designated by the testatrix, for a congregation which has no building and which is willing that the church shall bear the testatrix's name, rather than to another congregation of the same faith which has a church only three squares from the lot designated by the testatrix, which would use the funds for the erection of a chapel to bear testatrix's name, if it appears that the testatrix's primary desire was the erection of a new church to bear her name rather than the erection of an appurtenant building to an existing church bearing a different name.

Exceptions to adjudication. O.C. of Philadelphia County.

Before Van Dusen, P.J., Stearne, Sinkler, Klein, Bolger, Ladner, JJ., and Marx, P.J., twenty-third judicial district.

The facts appear from the following extracts from the adjudication of

MARX, P.J., twenty-third judicial district, specially presiding, auditing judge.— Margaret L. Wilkey died on April 2, 1934, unmarried and without issue. . . .

By her will the testatrix gave to the trustees of the First Presbyterian Church of Frankford, Philadelphia, $200, free of tax, as a memorial to her uncle and aunt, Thomas Wilkey and Sarah Wilkey; $500, free of tax, to the trustees of Bethesda Presbyterian Church at Frankford Avenue and Berks Street, Philadelphia; and the residue of her estate to "the Trustees of the Presbytery of Philadelphia of the Presbyterian Church in the United States of America, for the following purposes, to wit:

"To raze the Stone Farm House building situate on my ground at the corner of B and Westmoreland Streets in the City of Philadelphia, which has been the home of my family for generations, and to erect on the site a suitable Church Building to be known as The Wilkey Memorial Presbyterian Church.The amount to be expended for the building to be decided upon by my Executors and Trustees, hereinafter named, and The Trustees of the Presbytery of Philadelphia of the Presbyterian Church in the United States of America.

"It is my desire that the entire plot of ground fronting on Westmoreland Street, B Street and Kip Street shall be used solely for the purpose of the Church; the dwelling now occupied by me to be the Manse for the use of the Pastors.If at all feasible, it is my desire that the stones from the Farm House Building be incorporated into the Church Building; and it is my desire that the architectural design and appearance of the building shall conform as nearly as possible with that of the First Presbyterian Church of Frankford at Frankford Avenue and Church Street, in the City of Philadelphia.In order to further the intent of this my will, I do hereby order and direct my Executors and Trustees, hereinafter named, to sell all of my real estate (except that at Westmoreland B and Kip Streets) for the best price that can be obtained therefor, hereby giving to my said Executors and Trustees full power and authority to make, execute and deliver to the purchaser or purchasers of such real estate, good and sufficient deed or deeds of conveyance therefor, without any liability on the part of the purchaser or purchasers to see to the application of the purchase money; and to hold the proceeds of such sale or sales on deposit in the Kensington National Bank in the City of Philadelphia, IN TRUST, however, to disburse the same as shall become necessary in the erection of the Church Building and other expenses contingent thereto.And any suplus moneys remaining, I desire shall be turned over to The Trustees of the Presbytery of Philadelphia of the Presbyterian Church in the United States of America to be set apart as an endowment fund to be known as The Wilkey Memorial Endowment Fund; this fund to be administered at the discretion of The Trustees of the Presbytery of Philadelphia of the Presbyterian Church in the United States of America, for the benefit of the Wilkey Memorial Presbyterian Church.". . .

We find here a paramount purpose to build and endow a Wilkey Memorial Presbyterian Church.Subordinate purposes are expressed by desires, mere precatory provisions.The site designated is the plot bounded by Westmoreland and B Streets.

It is admitted that the testatrix owned only an undivided half of the real estate set apart to this purpose; the ground has been appropriated by the school district, to school purposes and damages will approximate $20,000.A total of approximately $34,000 will pass under this gift.A church similar to the First Presbyterian Church of Frankford would probably cost $100,000.It is contended that there can be no compliance with the testamentary requirements and the gift must fail.

The paramount purpose of a charitable or religious gift has never been permitted to fail because compliance in a subordinate designation was impossible.

In Nauman et al. v. Weidman, 182 Pa. 263, the Supreme Court, Mitchell, J., said (p. 266): "There are classes of cases where the object of the trust has come to an end, or conditions have so changed as to require change of location, etc., in which courts of equity will decree sale and supervise the application of the proceeds to the same uses".(SeeHamilton et al. v. The John C. Mercer Home, 228 Pa. 410.)

In Kramph's Estate, 228 Pa. 455, 461, the will directed the establishment of a university within the limits of the consolidated City of Philadelphia.It was held the conditions of the trust were fulfilled by the establishment of the institution at Bryn Athyn, outside the city limits.

In Curran's Estate, 310 Pa. 434, the requirement that the institution be in Philadelphia or adjacent to it was held not mandatory but subordinate to the paramount purpose of the trust, and the fund was given to the use of Wilson College, 150 miles from Philadelphia.

In Toner's Estate, 260 Pa. 49, the testator directed the erection of an industrial school for boys, by the Benedictine Society, on his farm in Westmoreland County.The society refused the trust, and the Catholic Diocese of Pittsburgh, alternative beneficiary under the same terms, chose to sell part of the land and remove the institution to Pittsburgh.The lower court permitted sale and removal and the Supreme Court affirmed.

In Mears' Estate, 299 Pa. 217, testator gave the residue of his estate to Harvard College for the establishment of courses covering treatment of the defective and criminal classes by surgical procedures.Harvard College declined the bequest.Residuary interests sought a decree voiding the gift.This was declined; the Supreme Court affirmed, saying, p. 220: ". . . neither the trustee named, nor the plan decedent mentioned to effectuate his intention, constitute the substance of his gift, and . . . the law regards the kernel rather than the shell".The intended use was not a gift to Harvard College, nor the establishment of a course of lectures by that institution, but the "promotion of a great humanitarian cause".

In Hoff's Estate, 315 Pa. 286, the gift went to the maintenance of the "Annie Wootten Wing" of Reading Hospital.Before the gift became effective, the hospital, including that wing, had been demolished and the land sold.A new hospital was erected by the hospital corporation, in Reading, about two and...