249 Pa. 469 | Pa. | 1915
Opinion by
This case involves the construction of the will of Peter L. Kimberly, deceased, who died June 4, 1905. The Orphans’ Court of Mercer County distributed seventy-seven per centum of the estate to named beneficiaries, and that portion is not affected by the present appeal. By the third “paragraph” or item of his will, the testator, after certain specific legacies and annuities, gave the residue of his estate to three trustees previously named therein, with direction, power and authority “to use and apply the same, to such charitable uses, objects and purposes, as they may from time to time select or deem most desirable; hereby giving to them the full and absolute power to select and apply the whole of said rest, residue and remainder......so to be received, to charitable uses, objects and purposes, as fully and.completely as I myself could do if living; provided, however, that
The Orphans’ Court upheld the provision just quoted as a valid trust. David W. Kimberly, the appellant, contends, as he did in the court below, (1) that the bequest to the trustees for charitable purposes was void for uncertainty, and (2) that the will created a permanent unincorporated charitable association, consisting of the trustees and their successors, with an annual income greater than allowed by law.
Counsel for the appellant, in his printed argument, frankly admits that the line of decisions of this court, “of which Dulles’s Est., 218 Pa. 162, and Mann v. Mullen, 84 Pa. 297, are fairly representative,” rules his first contention against him; but he urges a reconsideration of the point in question. After giving heed to the numerous cases from other jurisdictions, some of which are in conflict with our own decisions, we are not moved to depart from the doctrine of Dulles’s Est., supra; there the language of the will in regard to the residuary estate was: “I do hereby direct my said executors to pay over, appropriate, dispose of and distribute the same......to and among such religious, charitable and benevolent purposes and objects or persons or institutions as I shall specify in writing......or in default of such written direction left by me, then.....I do hereby give and grant unto my said executors and the survivor of them full and unlimited power and authority to pay over, appropriate, dispose of and distribute the said rest, residue and remainder of my estate to and among such religious, charitable and benevolent purposes and objects or institutions, as in their discretion shall be best and proper.....” In that case, as in this, the testator left no written directions, and the appropriation and distribution of the residuary estate for charitable purposes fell to the discretion of the trustees named in the will; we there said (p. 164): “If the testatrix had made the writing referred to and named the objects, persons or institu
We are not impressed with the contention that the general gift for charitable purposes, in the third item of the testator’s will, constitutes the trustees therein named a permanent unincorporated charitable association. The testator’s evident intention was merely to create a trust for charitable purposes and vest in his trustees a broad discretion to select the particular objects of the charity, with power to distribute the fund, both principal and income, accordingly, within such reasonable period as in their judgment might seem best. There is nothing in the manner in which the fund has been administered to date which suggests any other interpretation ; but even if there were, the conduct of the trustees could not alter the plain meaning of the will. The fact that, in other parts of the will, the testator gave certain powers to his “executors and trustees” to borrow money, and to incorporate companies, does not indicate an intention to create an unincorporated association in
There is a grave question whether the appellant at bar has the legal right to raise some of the contentions insisted upon by him; but it is not necessary to discuss that point, since, as already indicated, we see no merit in his appeal.
The assignments of error are overruled and the decree of the court below is affirmed, costs to be paid out of the funds of the residuary estate.