108 A.2d 214 Page 1 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

Supreme Court of Pennsylvania. ESTATE of John McKEE, Deceased. Appeal of Lucretia McGee BELL, Appellant.

(No. 225). Appeal of Marion McKee Timmons TURNER, Appellant.

(No. 226). Appeal of Mary McGee TIGNER, Appellant.

(No. 227). Appeal of Michael A. PACHUTA, Administrator of the Estate of Edgar Boyd McGee, Deceased, Appellant.

(No. 228). Sept. 27, 1954.

Proceeding on account of trustee of testamentary trust. Testator's descendants interposed claims. The Orphans' Court of Philadelphia County, at No. 654 of 1902, Robert O. Bolger, J., affirmed the account and held that where testamentary trust directed the institution of an interracial naval college for the education of white and negro orphan boys, but institution of the college proved impossible and no satisfactory institution appeared to claim the fund, scholarships would be awarded to white and negro orphan boys seeking an education similar to that which testator had intended to provide, and fund would be so utilized until the institution of the college envisaged became practicable, and claimants appealed. The Supreme Court, at Nos. 225, 226, 227, and 228, January Term, 1953, affirmed on the Orphans' Court's opinion.

Decree affirmed.

West Headnotes

[1] Trusts 390 325

390 Trusts 390VI Accounting and Compensation of Trustee 390k3 25 k. Evidence. Most Cited Cases

In proceeding on account of trustee of testamentary trust, which was established in contemplation of founding a naval school with income from trusts, evidence established that the fund was grossly inadequate to fulfill the specified purpose.

[2] Wills 409 740(1)

409 Wills 409VII Rights and Liabilities of Devisees and Legatees 409VI I(A) Nature of Title and Rights in General 409k740 Conveyances, Agreements, and Other Transactions Between Devisees and Legatees 409k740(1) k. In general. Most Cited Cases

In proceeding on account of trustee of testamentary trust, wherein testator's descendants asserted claims, evidence established questioned document to be a release by testator's grandchildren of claims against estate.

[3] Trusts 390 325

390 Trusts

390VI Accounting and Compensation of Trustee

390k3 25 k. Evidence. Most Cited Cases

In proceeding on account of trustee of testamentary trust, wherein testator's descendants asserted claims, document by which testator's grandchildren, the claimant's ancestors, relinquished claims to estate, was relevant and admissible.

[4] Wills 409 740(1)

409 Wills 409VII Rights and Liabilities of Devisees and Legatees 409VI I(A) Nature of Title and Rights in General 409k740 Conveyances, Agreements, and Other Transactions Between Devisees and Legatees 409k740(1) k. In general. Most Cited Cases

Deed of release signed by testator's grandchildren was effective to bar any claim for annuities bequeathed to grandchildren.

108 A.2d 214 Page 2 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

[5] Descent and Distribution 124 21

124 Descent and Distribution 124II Persons Entitled and Their Respective Shares 124II( A) Heirs and Next of Kin 124k20 Kindred 124k21 k. Consanguinity and affinity. Most Cited Cases

Heirs and next of kin under the intestate law are ascertained and determined as of the date of the decedent's death, not at the time of actual distribution.

[6] Descent and Distribution 124 26

124 Descent and Distribution 124II Persons Entitled and Their Respective Shares 124II( A) Heirs and Next of Kin 124k25 Descendants 124k26 k. Children in general. Most Cited Cases

Descent and Distribution 124 28

124 Descent and Distribution 124II Persons Entitled and Their Respective Shares 124II( A) Heirs and Next of Kin 124k25 Descendants 124k28 k. Issue of children deceased be fore intestate. Most Cited Cases

Where testator was survived by a daughter, this daughter's children, and the child of deceased daughter, only the surviving daughter and the child of the deceased daughter were heirs and next of kin under the intestate law.

[7] Descent and Distribution 124 72

124 Descent and Distribution 124III Rights and Liabilities of Heirs and Distributees 124III (A) Natur e and Establishment of Rights in General 124k72 k. Renunciation or release of rights. Most Cited Cases

Wills 409 717(1)

409 Wills 409VII Rights and Liabilities of Devisees and Legatees 409VI I(A) Nature of Title and Rights in General 409k717 Acceptance or Renunciation or Disclaimer of Devise or Legacy 409k717(1) k. In general. Most Cited Cases (Formerly 409k717)

Where a testator's heirs and next of kin effectively relinquish all claims to testator's estate, either under will or under intestate law, those who claim from or through the relinquishers are similarly barred, irrespective of whether they join in the relinquishment.

[8] Descent and Distribution 124 82

124 Descent and Distribution 124III Rights and Liabilities of Heirs and Distributees 124III (A) Natur e and Establishment of Rights in General 124k82 k. Conveyances and other transactions between heirs and distributees. Most Cited Cases

Wills 409 740(4)

409 Wills 409VII Rights and Liabilities of Devisees and Legatees 409VI I(A) Nature of Title and Rights in General 409k740 Conveyances, Agreements, and Other Transactions Between Devisees and Legatees 409k740(4) k. Construction and operation. Most Cited Cases

Where the descendants of testator's next of kin relinquished claim to testator's estate, those who claimed from or through them were bound by terms of the relinquishment.

[9] Descent and Distribution 124

82

124 Descent and Distribution 124III Rights and Liabilities of Heirs and Distributees 124III (A) Natur e and Establishment of Rights in General

108 A.2d 214 Page 3 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

124k82 k. Conveyances and other transactions between heirs and distributees. Most Cited Cases

Wills 409 740(4)

409 Wills 409VII Rights and Liabilities of Devisees and Legatees 409VI I(A) Nature of Title and Rights in General 409k740 Conveyances, Agreements, and Other Transactions Between Devisees and Legatees 409k740(4) k. Construction and operation. Most Cited Cases

Where testator's heirs and next of kin, and their living descendants joined in deed of release whereby they relinquished claims to testator's estate, whether the release extended to claims under the intestate law as well as under will depended upon the intent of the heirs and next of kin.

[10] Descent and Distribution 124 82

124 Descent and Distribution 124III Rights and Liabilities of Heirs and Distributees 124III (A) Natur e and Establishment of Rights in General 124k82 k. Conveyances and other transactions between heirs and distributees. Most Cited Cases

Wills 409 740(4)

409 Wills 409VII Rights and Liabilities of Devisees and Legatees 409VI I(A) Nature of Title and Rights in General 409k740 Conveyances, Agreements, and Other Transactions Between Devisees and Legatees 409k740(4) k. Construction and operation. Most Cited Cases

In proceeding on account of trustee of testamentary trust, against which testator's descendants asserted claims, evidence established that deed of release, signed by testator's heirs and next of kin and their then living descendants, was intended to release claims under intestate law as well as under will.

[11] Descent and Distribution 124

82

124 Descent and Distribution 124III Rights and Liabilities of Heirs and Distributees 124III (A) Natur e and Establishment of Rights in General 124k82 k. Conveyances and other transactions between heirs and distributees. Most Cited Cases

Wills 409 740(4)

409 Wills 409VII Rights and Liabilities of Devisees and Legatees 409VI I(A) Nature of Title and Rights in General 409k740 Conveyances, Agreements, and Other Transactions Between Devisees and Legatees 409k740(4) k. Construction and operation. Most Cited Cases

Where testator's heirs and next of kin signed deed of release which was intended to release claims against testator's estate under intestate laws as well as under will, for substantial consideration, the deed barred the signatories and their descendants.

[12] Evidence 157 290

157 Evidence 157VIII Declarations 157VI II(C) As to Pedigree, Birth, and Relation ship 157k289 Declarations by Members of Family 157k290 k. In general. Most Cited Cases

The known kin of the decedent were competent to testify as to pedigree and the establishment of the family tree.

[13] Stipulations 363 4

363 Stipulations

363k4 k. Capacity and authority to enter into stipulation. Most Cited Cases

Trusts 390 291

390 Trusts 108 A.2d 214 Page 4 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

390VI Accounting and Compensation of Trustee 390k2 91 k. Who entitled to require accounting. Most Cited Cases

Where testator's known kin were barred from certain claims to estate by their ancestors' deed of release, they were without standing in proceeding on account of trustee of testamentary trust and had no authority to stipulate that persons claiming kinship were descendants of testator's son.

[14] Children Out-Of-Wedlock 76H 3

76H Children Out-Of-Wedlock 76HI Status in General 76Hk2 Evide nce 76Hk3 k. Presumptions. Most Cited Cases (Formerly 205Ak3 Illegitimate Children, 53k3 Bastards) Son born during lawful wedlock was presumptively legitimate.

[15] Descent and Distribution 124 71(4)

124 Descent and Distribution 124III Rights and Liabilities of Heirs and Distributees 124III (A) Natur e and Establishment of Rights in General 124k71 Establishment and Determination of Heirship or Right to Share in Distribution 124k71(4) k. Presumptions and burden of proof. Most Cited Cases

Where rights of inheritance are concerned, and especially after lapse of many years, a burden rests upon persons claiming kinship to a decedent to prove their claim by a fair preponderance of trustworthy and satisfying evidence.

[16] Descent and Distribution 124 71(6)

124 Descent and Distribution 124III Rights and Liabilities of Heirs and Distributees 124III (A) Natur e and Establishment of Rights in General 124k71 Establishment and Determination of

Heirship or Right to Share in Distribution

124k71(6) k. Sufficiency of evidence. Most Cited Cases

In proceeding on account of trustee of testamentary trust, wherein testator's descendants asserted claims, evidence established that certain claimants were descendants of testator's legitimate son, who had predeceased testator.

[17] Wills 409 849

409 Wills 409VII Rights and Liabilities of Devisees and Legatees 409VI I(O) Void, Lapsed, and Forfeited Devises and Bequests, and Property and Interests Undisposed of 409k849 k. Disposition or devolution in general. Most Cited Cases

Where a testator's other descendants are barred from claiming estate, testator's greatgrandchildren, descendants of a predeceasing son, will be entitled to divide estate in case of intestacy.

[18] Wills 409 680

409 Wills 409VI Construction 409VI (H) Estate s in Trust and Powers 409VI(H)2 Construction of Testamentary Trusts 409k680 k. In general. Most Cited Cases

Will which created a residuary trust indicated an intent that provisions relating to use of trust fund for building and for accumulation of a contingency fund were to run concurrently with provision for institution of a school, and institution of school was not contingent upon fulfillment of other provisions.

[19] Perpetuities 298 4(15.1)

298 Perpetuities 298k4 Creation of Future Estates in General 298k4 (15) Trust Estates 298k4(15.1) k. In general. Most Cited Cases (Formerly 298k4(15))

Perpetuities 298 8(8)

108 A.2d 214 Page 5 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

298 Perpetuities 298k8 Remoteness of Gifts to Charities 298k8 (8) k. Accumulations for charitable pur poses. Most Cited Cases

Will which created a trust and directed that on death of grandchildren who were living at testator's death, trust fund should be used to institute and maintain a school, and which did not limit institution of school on any other contingency, did not violate the rule against perpetuities or the statute against accumulations. 20 P.S. § 301.6(5); Act April 14, 1931, 20 P.S. § 3251 note.

[20] Charities 75 21(1)

75 Charities

75I Creation, Existence and Validity

75k21 Certai nty as to Beneficiaries

75k21(1) k. In general. Most Cited Cases

That will which created charitable trusts did not name cestui que trust did not render it void, since the Commonwealth will enforce charitable trusts.

[21] Charities 75 44

75 Charities 75II Construction, Administration, and Enforcement 75k44 k. Visitation. Most Cited Cases The state serves as a visitor to all charitable institutions.

[22] Charities 75 42

75 Charities 75II Construction, Administration, and Enforcement 75k42 k. Supervision by public officers. Most Cited Cases

Property given to charity becomes in a measure public property which the state protects by inspection.

[23] Charities 75 44

75 Charities 75II Construction, Administration, and Enforcement 75k44 k. Visitation. Most Cited Cases The Orphans' Court may at any time, under its visitorial powers, require trustees of charitable trusts to

render an accounting in order to enforce terms of trust.

[24] Perpetuities 298 8(2)

298 Perpetuities 298k8 Remoteness of Gifts to Charities 298k8 (2) k. Gifts on condition. Most Cited Cases (Formerly 298k8(3)) A gift to charity to vest in interest upon a remote contingency is void under the rule against perpetuities.

[25] Perpetuities 298 4(12)

298 Perpetuities 298k4 Creation of Future Estates in General 298k4 (12) k. Postponement of enjoyment of es tate or interest. Most Cited Cases

The rule against perpetuities is not concerned with mere possession and enjoyment; the time of vesting in ownership or interest is the criterion.

[26] Wills 409 629

409 Wills 409VI Construction 409VI (F) Veste d or Contingent Estates and Interests 409k629 k. Construction in favor of vesting. Most Cited Cases

A testator's intention that a gift should be contingent must appear plainly, manifestly and indisputedly, otherwise the estate is always held to be vested.

[27] Estates in Property 154 1

154 Estates in Property

154k1 k. Nature and incidents in general. Most Cited Cases

There is a strong presumption in favor of vesting.

[28] Estates in Property 154

1

154 Estates in Property

154k1 k. Nature and incidents in general. Most Cited Cases

The law inclines to treat the whole interest as vested and not as contingent and therefore, in case of doubt 108 A.2d 214 Page 6 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

or mere probability it declares interests vested.

[29] Charities 75 31

75 Charities 75II Construction, Administration, and Enforcement 75k31 k. General rules of construction. Most Cited Cases

Charities are favorites of the law.

[30] Perpetuities 298 4(15.1)

298 Perpetuities 298k4 Creation of Future Estates in General 298k4 (15) Trust Estates 298k4(15.1) k. In general. Most Cited Cases (Formerly 298k4(15))

Perpetuities 298 8(8)

298 Perpetuities 298k8 Remoteness of Gifts to Charities 298k8 (8) k. Accumulations for charitable pur poses. Most Cited Cases

Will which created charitable trust which was to become effective upon death of life beneficiaries would be construed, in absence of a contrary intention, as vesting on testator's death, and thus outside the statute against accumulations and the rule against perpetuities. 20 P.S. § 301.6(5); Act April 14, 1931, 20 P.S. § 3251 note.

[31] Charities 75 12

75 Charities

75I Creation, Existence and Validity

75k9 Purpo ses of Gift

75k12 k. Education. Most Cited Cases

That testamentary trust for the founding of a school made provisions to perpetuate testator's name and to glorify his memory did not vitiate the charitable nature of the trust.

[32] Charities 75 37(3)

75 Charities 75II Construction, Administration, and Enforcement

75k37 Application of Doctrine of Cy Pres 75k37(3) k. Impossibility or impracticability of literal compliance with trust. Most Cited Cases (Formerly 75k37)

The purposes contemplated by a testamentary trust for institution of interracial naval college were (1) education of poor white and colored orphan boys, (2) from the ages of 12 to 18 years, (3) that they should live together, (4) that their education should be nautical in character, and (5) that a college bearing testator's name should be established, and impossibility of establishment of college did not defeat all purposes of will.

[33] Wills 409 470(3)

409 Wills 409VI Construction 409VI (A) Gener al Rules 409k468 Separate Clauses or Parts 409k470 Co nstruction as a Whole 409k470(3) k. Particular wills or provisions. Most Cited Cases (Formerly 409k470) In construing will, intention of testator is to be ascertained from four corners of will.

[34] Charities 75 37(3)

75 Charities 75II Construction, Administration, and Enforcement 75k37 Application of Doctrine of Cy Pres 75k37(3) k. Impossibility or impracticability of literal compliance with trust. Most Cited Cases (Formerly 75k37)

That will which created testamentary trust for institution of a college directed that the money should not be used for any other purpose did not require that no expressed purposes should be carried out unless all could be fulfilled, and fact that founding college was impossible did not preclude application of the money to educational purposes.

[35] Trusts 390 166(1)

390 Trusts 390III Appointment, Qualification, and Tenure of 108 A.2d 214 Page 7 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

Trustee

390k1 64 Remo val

390k166 Grounds

390k166(1) k. In general. Most Cited Cases

In conveyances on condition, the grantor may enter for condition broken, but in conveyances in trust the proper remedy for breach of trust is the appointment of a new trustee.

[36] Trusts 390 140(2)

390 Trusts 390II Construction and Operation 390II( B) Estate or Interest of Trustee and of Ces tui Que Trust 390k139 Extent of Estate or Interest of Cestui Que Trust 390k140 Express Trusts in General 390k140(2) k. Conditions and limitations in general. Most Cited Cases

Statements in a trust instrument negativing a use for any other purpose will not create a defeasible estate unless they are accompanied by restraints upon alienation, forfeiture or reverter clauses, and in absence of such clauses, the negating provisions will be regarded as superfluous.

[37] Charities 75 37(3)

75 Charities 75II Construction, Administration, and Enforcement 75k37 Application of Doctrine of Cy Pres 75k37(3) k. Impossibility or impracticability of literal compliance with trust. Most Cited Cases (Formerly 75k37)

Where testator left property in trust for the charitable and patriotic use of instituting an interracial naval college, and did not include in will written restraints upon alienation or clauses of forfeiture or reverter, the gift to the trustees was in fee simple, and did not fail upon the impossibility of instituting the college as directed.

[38] Charities 75 27

75 Charities

75I Creation, Existence and Validity 75k27 k. Persons entitled to question validity of gift. Most Cited Cases

Where testator who left property in trust for institution of a school had a general charitable intent, his next of kin had no standing to claim the estate. 10 P.S. §§ 13-15; 20 P.S. § 301.1 et seq.; 20 P.S. c. 2, Appendix, §

196.

[39] Charities 75 44

75 Charities

75II Construction, Administration, and Enforcement

75k44 k. Visitation. Most Cited Cases

Where specific charitable purpose of testamentary trust failed, and fund was to be applied to related charitable purposes, the Orphans' Court was bound to retain visitorial powers and a measure of control over the fund, and thus would avoid awarding principal to claimants beyond its jurisdiction.

[40] Trusts 390 58

390 Trusts

390I Creation, Existence, and Validity

390I(A) Expre ss Trusts

390k58 k. Modification. Most Cited Cases

In a closed trust, other assets cannot be added even by the settlor or testator, but in an open end trust, such augmentation is possible.

[41] Charities 75 37(8)

75 Charities 75II Construction, Administration, and Enforcement 75k37 Application of Doctrine of Cy Pres 75k37(8) k. Manner of application. Most Cited Cases

(Formerly 75k37)

Where testator created trust for foundation of an interracial naval college, with general charitable intent, and founding of the college proved impossible, the fund could, under cy pres, be added to other funds for the accomplishment or approximate fulfillment of the purposes, under some other auspices or management, if necessary.

108 A.2d 214 Page 8 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

[42] Charities 75 37(8)

75 Charities 75II Construction, Administration, and Enforcement 75k37 Application of Doctrine of Cy Pres 75k37(8) k. Manner of application. Most Cited Cases

(Formerly 75k37)

Where testamentary trust directed the institution of an interracial naval college for the education of white and Negro orphan boys, but institution of the college proved impossible and no satisfactory institution appeared to claim the fund, scholarships would be awarded to white and Negro orphan boys seeking an education similar to that which testator had intended to provide, and fund would be so utilized until the institution of the college envisaged became practicable.

The following is the opinion of Judge Bolger in the court below:

Sur account entitled Third Account of His Eminence, Dennis J. Dougherty, Cardinal Archbishop of Philadephia, Succeeding Trustee under the will of John McKee, Deceased.

Before Bolger, J.

This account was called for audit

November 3, 1947

October 3, 1951

Counsel appeared as follows:

November 8, 1951

Gerald Ronon, Esq., and James E. Gallagher, Jr., Esq., for His Eminence, Dennis J. Dougherty, Cardinal Archbishop of Philadelphia, Trustee, the accountant, and later for Most Reverend John F. O'Hara, C. S. C., Archbishop of Philadelphia.

F. Gilman Spencer, Esq., Special Deputy Attorney General, Commonwealth of Pennsylvania, for the Attorney General of the Commonwealth of Pennsylvania.

H. Eugene Heine, Esq., and with him Irving F. Berger, Esq., of the New York City Bar, for T. John McKee, grendson of the decedent, and later for Aimee McKee, widow of said T. John McKee, deceased, as executrix of and sole legatee under his will.

Herbert G. Hardin, Esq., and Leslie P. Hill, Esq., for the estate of Dr. Henry Minton (or Harry McKee Minton), deceased grandson of the decedent, and Camilla Johnson, Administratrix, C. T. A. of his estate.

Mercer L. Lewis, Esq., for William McKee Syphax, Abby Jane Syphax Jones, Bismark Douglass Syphax and Lillian McKee Syphax Jackson (surviving children of **218 Douglass Prosser Syphax, grandson of the decedent); also for Helene Greenwich Burton, daughter of Joseph Greenwich, deceased second husband of Abby Ann Syphax, daughter of the decedent; and for the estate of Victor Hurst Syphax, deceased widow of John McKee Syphax, grandson of the decedent.

Joseph C. Waddy, Esq., of Houston, Houston, Hastie and Waddy, of the Washington, D. C., Bar, for Novella Dyson Syphax, widow, and Alma Syphax Scurlock, daughter of Marcellus M. Syphax, deceased grandson of the decedent; and for Nancy Syphax Harris, widow of Ernest F. Syphax, deceased grandson of the decedent.

Thomas J. Clary, Esq., and John F. Thaete, Esq., and with them Benjamin C. Ribman, Esq., of the New York City Bar, for Lucretia McGee Bell, Marian McKee Timmons Turner, Edgar Boyd McGee and Mary McGee Tigner, children of Edgar Boyd McKee, alleged to be a deceased grandson of the decedent, a son of John McKee, Jr., and alleged son of the decedent.

Lewis Tanner Moore, Esq., for Mercy-Douglass Hospital.

George W. McKeag, Esq., for Maine Maritime Academy.

Leroy Humbert, Esq., for John Stephen Durham Fellowship and Scholarship Fund.

Louis F. Floge, Esq., for Pen Ryn Episcopal School at

108 A.2d 214 Page 9 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

Pen Ryn, Andalusia, Bucks County, Pennsylvania.

Laird C. Starkey, Esq., for Spring Garden Institute (automotive Training Center).

Carlyle M. Tucker, Esq., for Moorish Berkshire National Homestead.

D. Alexander Wieland, Esq., and Herbert R. Cain, Jr., Esq., for Lincoln University.

Franklin H. Berry, Esq., of Berry, Whitson and Berry, of Toms River, New Jersey, for Admiral Farragut Academy.

William T. Coleman, Jr., Esq., and Francis L. Van Dusen, Esq., for Downingtown Industrial School and College.

Joseph P. Gaffney, Esq., for the City of Philadelphia, acting by the Board of Directors of City Trusts.

John McKee died on April 6, 1902, and this trust arose under his will dated December 8, 1899, which was duly admitted to probate in Philadelphia County on May 21 1902. After making numerous bequests and devises (which have long since been satisfied and as to which there is now no controversy), he bequeathed certain annuities to his daughter and grandchildren and directed that his residuary estate should be held in trust and, after the deaths of all his children and grandchildren who were living at the time of his decease, used for the purpose of establishing and maintaining a naval school to be known as ‘Colonel John McKee's College.’ In addition, the will provided for an elaborate program of conversion of extensive real estate holdings into income producing property and gave meticulous directions concerning the operation of the school, all of which will be referred to more in detail hereafter. A printed copy of the will is annexed hereto.

When this, the third account of the trustee, came before me for audit on November 3, 1947, counsel for the accountant stated that it was filed because of the death of Dr. Henry McKee Minton, grandson of the decedent, on December 29, 1946, it being thought that he was the last survivor of the testator's children and grandchildren who were living at the time of his (testator's) death. It was stated that the fund in the hands of the trustee consisted of approximately $650,000 in personalty and $150,000 in unconverted real estate, and that the fund was inadequate to carry out the testator's charitable purpose to establish a naval school as specified in the will. The court was therefore requested to exercise its cy pres jurisdiction and to determine, if possible, what other charitable purpose might fit the testamentary intention as expressed in the will.

The audit was continued, and by decree dated November 12, 1947, John Blessing, Esq., was appointed amicus curiae with powers of a Master, with authority to advertise**219 his appointment, conduct hearings and to make such investigation or inquiry as might enable him to make appropriate recommendations to the Court as to the action it should take respecting distribution of the residue of the estate of the decedent. The amicus curiae thereupon proceeded with his duties by advertising his appointment and the purposes thereof in several newspapers of general circulation in the City of Philadelphia, such notice including the time and place fixed for a hearing.

Shortly thereafter, before the date fixed for hearing, a claim was filed by one, T. John McKee, of New York City, who alleged he was a grandchild of the testator, a son of testator's daughter, Abby Ann Syphax, and the selfsame Theophilus M. Syphax named as a grandchild in Item 13(c) of the will. Also, other descendants of the testator, being great-grandchildren, issue of the daughter, Abby Ann Syphax, appeared and laid claim to the whole residuary estate on the broad theory that the cy pres doctrine could not be applied legally and that therefore an intestacy should be declared in their favor.

Thereupon a second decree dated January 16, 1948, was entered confirming the appointment and authority of the amicus curiae and expanding it to include appropriate investigation of the identity of said T. John McKee and any other persons asserting claims to the estate and to make recommendations thereon to the Court.

At a special hearing held in a New York City hos108 A.2d 214 Page 10 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

pital, called for the purpose, the said T. John McKee testified concerning his kinship to the testator. The amicus curiae and all other parties in interest were satisfied that his relationship as the grandson named in the will as Theophilus M. Syphax was sufficiently established, it appearing that he had, by legal proceedings shortly after the death of his grandfather, changed his name to T. John McKee. The amicus curiae, in his report which in annexed hereto, has found as a fact that said T. John McKee was a grandchild of the testator and that he was the same person as the Theophilus M. Syphax named in the will. This fact is not contested and is accordingly adopted by the Court.

Inasmuch as the will directed there should be no distribution of the residuary estate until after the death of testator's last child or grandchild who was living at the time of his death, the appearance of T. John McKee would have delayed this proceeding indefinitely. However, within a few months after the hearing at which he established his identity, T. John McKee died on August 4, 1948, and any interest he might have had in this estate has now vested in his widow, Aimee McKee, who is executrix of and sole legatee under his will. By reason of his death, the whole matter again became ripe for adjudication.

After the death of said T. John McKee, who was clearly the last of testator's children and grandchildren who were living at the time of his death, the amicus curiae proceeded to hold a number of hearings at which testimony and other documentary evidence was produced to establish the testator's family tree. In addition a second series of hearings was held at which further testimony and documentary evidence was adduced by a number of schools and other institutions, each claiming all or part of the residuary estate under an application of the cy pres doctrine. All of the testimony and other evidence produced before the amicus curiae is discussed in detail in a very comprehensive report and supplement thereto filed by him and annexed to this adjudication. The original report of amicus curiae dated June 30, 1950, and the supplement thereto dated March 1, 1952, together with the notes of testimony and other documentary evidence filed therewith, are hereby made a part of this adjudication and are to be considered part of the record in this case.

The surviving descendants of the decedent, on behalf of themselves as well as the estates of their deceased parents, have not only attacked the validity of the provisions of the will concerning establishment of ‘Colonel John McKee's College,’ but they also claim certain annuities bequeathed under Item 13(c) of the will **220 which were never actually paid. In order to fully understand the various contentions of the so-called heirs and next of kin, it is necessary to recite the terms of the McKee will in some detail and give briefly the historical background out of which these claims arise.

After making numerous bequests and revises, as to which there is now no question, the residuary estate was given to Most Reverend Patrick John Ryan, then Archbishop of Philadelphia, and his successor and successors in that office as head of the Roman Catholic Church in the Archdiocese of Philadelphia, and to testator's counsel, Joseph P. McCullen, Esq., in trust upon the various uses and purposes therein set forth and for none other. Under Item 13(c) an annuity of $300 per year was bequeathed to a daughter, Abby Ann Syphax; another annuity of $50 to a grandson, Harry McKee Minton (son of a deceased daughter, Martha Virginia Minton); and, after the death of Abby Ann Syphax, $50 per year to her five children, namely John McKee Syphax, Douglas Prosser Syphax, Marcellus Meade Syphax, Theophilus

M. Syphax and Ernest Francis Syphax. These annuities never were actually paid, reasons for which will be set forth later herein.

Testator directed the accumulation of $20,000 out of income until the death of his youngest grandchild, and thereafter $2,000 added annually from income to be kept as a contingent fund for the benefit of the estate. After the accumulation of this fund and additions, he directed the further accumulation out of income of $75,000 to be held until his twenty-two acre lot on Stonehouse Lane should be paved, curbed and improved as city property, at which time the trustees were directed to erect thereon brick dwelling houses, the cost of which were to be paid out of the $75,000 fund and the increase thereof, any deficit to be made up out of net in108 A.2d 214 Page 11 378 Pa. 607, 108 A.2d 214

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come from the residuary estate. He then directed the erection of stores and dwellings from the income of the estate on other premises owned by him in Philadelphia. His lands in West Virginia, Georgia and Kentucky were directed to be held by the trustees until they could be sold or leased to the advantage of the estate. He forbade the sale at any time of any of his Philadelphia real estate other than that which was specifically authorized in the will. He gave his daughter, Abby Ann Syphax, authority to live in one of his houses, rent free, and the sum of $50 annually for maintenance of her household, in addition to her annuity of $300 as mentioned above.

He directed the erection of an office building for the care of records of his estate on his ground located in Bristol Township, Bucks County, and in Item 24 he provided that, with the exception of the Stonehouse Lane property, his trustees should make no alterations and improvements in his real estate until the death of his children and grandchildren who were living at the date of his death. With reference to his tract of ground of over 4,000 acres in the State of New Jersey, known as McKee City, he directed that it should always be known by that name, and out of said tract he gave, upon the decease of all his children and grandchildren who were living at his death, to the Roman Catholic Bishop of the Diocese in which McKee City was located and to his successor and successors in office a tract of ten acres whereupon he directed the erection of a Roman Catholic Church and rectory, schoolhouse and sisters' convent and a cemetery, all under the control and management of said Bishop. In connection with this it is interesting to note that John McKee was not of the Roman Catholic faith, nor was he a member of that church.

Item 27 of the will provided for the establishment of ‘Colonel John McKee's College’ in these words:

‘In order that such a number of poor colored male orphan children and poor white male orphan children (and by the term ‘orphan’ I mean fatherless children) born in the City of Philadelphia, Pennsylvania, as can be trained in one institution may receive a better education as well as a more comfortable maintenance than they usually receive from the application of the public funds, **221 I order and direct that after the death of all my children and all my grandchildren who may be living at the time of my death, my said trustees shall hold all the said rest, residue and remainder of my estate. * *

* in trust to use the net rents, issues, income and profits thereof for the erection on my large lot of ground at College Wharf Road and Bristol Road in Bristol Township, Bucks County, Pennsylvania, of a durable and substantial fireproof college building with other necessary buildings ample and complete for the health and well-being of at least 200 male children as aforesaid and at a cost not exceeding $100,000 and to be called ‘Colonel John McKee's College’, which name shall be inscribed on a large marble slab in the front wall of said college building and in front of said college building shall be placed a statue of myself.'

He then directed the erection of a stone wall around the college of specified height, thickness and capping. The buildings were not to be constructed until the death of his last surviving child or grandchild living at the time of his death. He thereupon provided for the apparatus, appliances, furniture and supplies for the lodging and instruction of the pupils. The pupils were to be given a thorough naval education similar to that taught at the United States Naval Academy at Annapolis and in the United States War College and Torpedo School so that the college should equip skilled men for service upon the various warships of the United States Navy. He then provided for a test of the pupils' skill and ability in a practical way, permission to be requested of the Secretary of the Navy for the use of government vessels. The college was directed to have a full band of music and drum corps fully equipped; competent instructors, etc., of proved skill and of established moral character to be employed and paid adequate compensation. The students were to be selected only on account of merit and not through favor or intrigue. The college band was to perform at specified times and annually on Memorial Day the scholars with the band were to turn out and parade and decorate testator's grave and the graves of the colored soldiers and sailors in Lebanon and Olive Cemeteries and of the white and colored soldiers and sailors in the Cathedral Cemetery in Philadelphia. In no case was any part of the principal of his estate to be used for the erection and support of the col108 A.2d 214 Page 12 378 Pa. 607, 108 A.2d 214

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lege. The principal was always to be kept intact by the use of income alone. The number of pupils in the college at any one time was not to be more than could be provided for out of the income of the residuary estate and the proportionate number of colored and white orphan children should be kept as nearly equal as possible. The testator then provided in great detail the procedure for the admission of students, their care, the color of their clothes and that the buttons on their coats and caps should be of brass with the name ‘McKee’ embossed on each button. In addition to the special naval training provided for the students, they were also the be instructed in many other branches of science and history, particularly history of the United States, Constitutional Law, drawing, music, philosophy as well as ancient and modern languages. Like Stephen Girard, who predeceased him by about sixty years, the testator provided that ‘by every proper means a pure attachment to our republican institutions and to the sacred rights of conscience as guaranteed by our Constitution shall be formed and fostered in the minds of the scholars.’ After providing that all income not needed for the operation of the college should be added to principal, he directed that the details of construction, equipment and organization of the college, etc., should be left to the discretion of the trustees, but that such detail should conform to and not conflict with the directions of the will. The management of the college was to be by a Board of ten in number elected on the 4th day of March every four years by the pastors of the various Roman Catholic Churches of the Diocese of Philadelphia and the regulations enacted by them were not to conflict with the provisions of the will.

**222 In Item 28, he provided, inter alia, that none of the principal and interest of the residuary devise and bequest should ‘at any time be applied to any other pur-

Principal and Accumulated

Income to June 21, 1952,

(Cash and securities)

Other assets--Real Estate-

City Properties assessed at

Hamiltion Township, Atlantic pose or purposes whatsoever than those herein mentioned and appointed.’ The trustees were directed to render a detailed account annually to the proper Court of this County of the residuary estate and of the state of the college. Simiarly, like information was to be published annually in two or more newspapers in Philadelphia. Provision was then made for the acceptance of gifts by others for the benefit of the college.

In Item 29, the testator provided for the use of his lands in Hamilton Township, Atlantic County, New Jersey, containing clay deposits, the balance of the land to be divided into 50 acre farms with 6 room houses, barns, etc. Testator appointed Most Reverend Patrick John Ryan, Archbishop of Philadelphia (as the head of the Roman Catholic Church in the Archdiocese of Philadelphia) and his attorney, Joseph P. McCullen, Esq., as executors of and trustees under the will.

Based upon the financial condition of the estate as reflected by the account orginally filed and upon consideration of the written opinion of a qualified expert, the amicus curiae found as a fact and all counsel of record agreed that the testator's project for construction and maintenance of Colonel John McKee's College in accordance with the terms of the will is impossible of accomplishment at this time. The amicus curiae therefore recommends in his report that the fund be awarded to be retained by the trustee and the income therefrom used cy pres for certain purposes which will be discussed in detail hereafter.

A more recent estimate of the value of the fund, taken as of June 21, 1952, is as follows:

$ 914,522.17 64,800.00

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County, New Jersey--2059 acres assessed at 22,550.00
Egg Harbor Township, Atlantic County, New Jersey --1050 acres assessed at 12,150.00
Bristol Township, Bucks County, Pennsylvania--66 acres assessed at 9,500.00

Net Income for year ending June 1, 1952-$24,061.34.

[1] This is an increase of approximately $200,000 over the values stated at the time the account was originally called for audit, but under the evidence adduced before the amicus curiae the fund still falls far short of being sufficient to carry out the testamentary plan. I accordingly find as a matter of fact that the fund as presently constituted is grossly inadequate to fulfill the charitable purpose as specified in the will.

The questions raised by the heirs and next of kin are as follows:

  1. Should the annuities bequeathed under Item 13(C) of the will to the five children of Abby Ann Syphax, which were never paid, be now awarded at this late date?

  2. Should an intestacy be declared in favor of the heirs and next of kin in preference to an application of the cy pres doctrine?

In his original report filed June 30, 1950, the amicus curiae recited and discussed in detail the facts surrounding a caveat proceeding which was amicably settld and terminated prior to probate of the McKee will in 1902 (see page 16 et seq. of that report). Briefly, the evidence showed that Abby A. P. Syphax, daughter of the decedent, and Dr. Henry McKee Minton, a grandson, filed a caveat against probate alleging that the testator was of unsound mind at the time he made his will. This proceeding was apparently withdrawn before**223

$1,023,522.17 any formal hearing was had, in consideration of which the two caveators each received $55,000 in cash or property and they released and relinquished any further claims they might have. In addition, Abby A. P. Syphax, the daughter, contracted to secure from her five children a release of their interests. No such release signed by the five children was produced, however, and based largely upon testimony of Thomas Boylan, Esq., who was an office associate of counsel who participated in the proceeding at the time, the amicus curiae concluded that Abby A. P. Syphax never actually carried out her end of the bargain to secure releases from her five children, at least there was no evidence produced to show that any of them ever signed such releases. In spite of this, however, the amicus curiae concluded as a matter of law that the annuities bequeathed under Item 13(C) of the will to the five children of Abby A. P. Syphax should not be awarded because, first, the annuitants must have had knowledge of the terms of the settlement made with their mother, and secondly, in any event they were guilty of laches in not claiming the annuities within a reasonable time after her death. Notwithstanding this, however, it was concluded that the present living descendants of Abby A. P. Syphax (great-grandchildren of the decedent) could inherit as heirs and next of kin in the event that the Court might ultimately declare an intestacy in this estate rather than apply the cy pres doctrine as recommended by the amicus curiae.

Evidence adduced at the hearing before the Auditing Judge on October 3, 1951, disclosed how and under what circumstances the so-called Deed of Release was later discovered. In July, 1951, after the death of 108 A.2d 214 Page 14 378 Pa. 607, 108 A.2d 214

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Thomas Boylan, Esq., certain old papers belonging to the McKee Estate were found in a filing cabinet in his office. These papers were turned over to counsel representing the estate and by him opened and examined. Among them was found the original Deed of Release referred to above, dated June 27, 1902, signed by the original caveators and by all the five children of Abby A.

P. Syphax, namely, John McK. Syphax, Douglas P. Syphax, Marcellus M. Syphax, Theophilus M. Syphax and Raymond J. Burr as guardian for Ernest F. Syphax, who was a minor at the time. The document is under seal, signed by witnesses, and acknowledged before a Notary Public who affixed his seal. Indeed, it is very formal in character and it is quite obvious that it was intentionally prepared and executed in a manner suitable for recording if that should become necessary.

[2] At another hearing before the Auditing Judge on November 8, 1951, the authenticity of the document was established by uncontradicted evidence in the form of testimony submitted by a well-known handwriting expert. Under all the evidence there is no doubt that the document in question is the selfsame ‘release and relinquishment’ which Abby A. P. Syphax promised to secure from her five children at the time of the settlement of the caveat proceeding. The Auditing Judge has no hesitancy in finding such to be the fact.

[3] Any argument that the Deed of Release is not relevant to the present proceeding and should not have been admitted in evidence is without merit. It is part of the res gestae of the case and should not be excluded. At many hearings before the amicus curiae the descendants of Abby A. P. Syphax, in attempting to prove their right to receive the annuities bequeathed to their respective parents under Item 13(C) of the will, made much of the fact that no writing could be found and therefore the assumption was that no release was ever signed. This was an important part of their case, and, if it had not been for other considerations involved, they probably would have prevailed in their contention. Now, since the writing had been located and produced under conditions which leave no doubt as to its authenticity, they cannot be heard to say that it has no relevancy. The Auditing Judge finds, as a matter of law, that the deed in question is relevant and was properly admitted in evidence.

[4] The least that can be said for the deed is that it effectively bars any claim **224 for payment of annuities bequeathed under Item 13(C) of the will. On page 5 it specifically refers to ‘all and every the annuities and sums of money in and by the said will of the said John McKee, given unto them * * *.’ as being part of the interests relinquished and released by those who signed the deed. Unquestionably, the deed, among other things, was intended by all parties in interest to be a final settlement and compromise of any rights or claims the annuitants might then or thereafter have under or by virtue of the will of John McKee. The wording of the deed is too clear on this point to admit of any other interpretation, and further discussion seems entirely unnecessary. The Auditing Judge concludes, as did the amicus curiae in his report, that the annuities bequeathed under Item 13(C) of the will to the five grandchildren named therein should not be awarded at this late date, and the claims made therefor on behalf of the representatives of the deceased annuitants are dismissed.

[5] [6][7] [8][9] We pass now to more serious ques tions having to do with whether or not the Deed of Release is effective to bar all claims by those contending for an intestate distribution of the fund involved. At the outset a point must be made that heirs and next of kin or a decedent under the intestate law are ascertained and determined as of the date of death of the decedent, not necessarily, as here, at the time of actual distribution. Heretofore, in this proceeding, the claimants to an intestate distribution of the fund have been referred to loosely as ‘heirs and next of kin’ of the decedent, whereas in fact they are but descendants who claim only by devolution or devise from or through the original heirs and next of kin. When John McKee died in 1902 admittedly he was survived by a daughter, Abby A. P. Syphax, and a grandson, Dr. Henry McKee Minton (only child of a deceased daughter, Martha Virginia McKee Minton). These two persons were heirs and next of kin. Hence, if the Deed of Release signed by them was intended by them to operate as a complete relinquishment of any interest and a bar to any claim they 108 A.2d 214 Page 15 378 Pa. 607, 108 A.2d 214

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might then or thereafter have in the estate either under the will or under the intestate law, it necessarily follows that those who presently claim from or through them are similarly barred. The fact that the five children of Abby

A. P. Syphax also signed the deed is significant, of course, and they and those now claiming from or through them are bound by its terms. However, Abby A.

P. Syphax and Dr. Henry McKee Minton were heirs and next of kin at the time the deed was executed, and accordingly their intention is the pole star to be followed in arriving at a proper conclusion as to whether there was a release of rights under the intestate law as well as under the will.

As to whether or not it was the intention of Abby

A. P. Syphax and Dr. Henry McKee Minton to forever bar themselves from claiming any interest by way of intestacy, such intention must be gathered from a careful reading of the document in question. The Auditing Judge has read and studied the instrument with great care, and has reached the conclusion that it must have been meant to be a complete and final release and relinquishment by the parties of all their interest both under the will and under the intestate law. The relevant portion of the deed, and the only part from which real intention can be gathered, reads as follows:

‘Witnesseth that the said parties of the first part for and in consideration of the said payments and of the execution and delivery of said notes and conveyances above mentioned and recited, by the said parties of the second part and for and in consideration of the sum of One Dollar unto them in hand paid by the said parties of the second part, the receipt whereof is hereby acknowledged, have assigned, transferred relinquished, granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by these presents do assign, transfer, relinquish, grant, bargain, sell, alien, enfeoff, release and confirm unto the said Patrick John Ryan and Joseph P. McCullen, Executors and Trustees under the Will of John McKee, Deceased, their heirs, executors, administrators,**225 successors and assigns, all the right, title, interest, estate, property, claim and demand of whatsoever nature or kind which the said parties of the first part or any of them now have or might or could have in any way for, in, to and out of the estate real, personal or mixed and whatsoever and wheresoever of which the said John McKee died seized, possessed or entitled to and of, in and to all and every part of the property and estate of the said John McKee, Deceased, whether principal, income or accumulations of income and of, in and to all and every the annuities and sums of money in and by the said will of the said John McKee, Deceased, given unto them the said, Abbie A. P. Syphax (by the name Abby Ann Syphax) Harry McKee Minton, John McKee Syphax, Douglas Prosses Syphax, Marcellus Meade Syphax, Theophilus M. Syphax and Ernest Syphax, as well as in and to the life interest or estate in and by said will given unto the said Abbie A. P. Syphax in and to the premises No. 1355 Patton Street, Philadelphia. Together with all the estate, right, title, interest, property, claim and demand whatsoever and of every sort and kind in law, equity or otherwise howsoever, of, in and to the estate of John McKee, Deceased, and every part thereof.’ (Italics added.)

In this very formal document the heirs and next of kin of John McKee, with full knowledge of their rights and for substantial consideration, relinquished and released all their ‘right, title, interest, estate, property, claim and demand of whatsoever nature or kind’ which they then had or might or could have in any way ‘for, in, to and out of the estate of which John McKee died seized, whether principal, income or accumulations of income.’ No wording could be broader or clearer than this, and it is futile for the present claimants to argue that the parties did not intend the deed to operate as a release of any claims they might have had under the intestate law as well as their interests under the will. True, it might be said that the deed should have expressly mentioned the intestate law if it was intended to encompass that as well as interests under the will, but it is contrary to reason to argue that the comprehensive language employed in the deed does not necessarily imply that such was the intention of the parties.

Another way of looking at it is that if Abby A. P. Syphax and Dr. Henry McKee Minton had been successful in their contest of the will the result would have been an intestacy, in which event each would have re108 A.2d 214 Page 16 378 Pa. 607, 108 A.2d 214

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ceived a portion of the estate as heir and next of kin. That was the result they hoped to achieve when they filed their caveat against probate of the will. By their agreement to settle the contest amicably each received $55,000 which must be said to be consideration and payment in full for what they would have received under the intestate law. Hence, it is unreasonable to suppose that they did not intend to release their rights under the intestate law by signing the Deed of Release. In a manner of speaking, signing of the deed might be considered a sale of their intestate rights.

[10] [11] The Auditing Judge accordingly finds, as a matter of law, that the document in question is effective to bar claims by the heirs and next of kin who were signatory to it, and the present claimants, who would normally inherit from or through the original heirs and next of kin in the event an intestacy were declared, are likewise barred.

During the course of hearings before the amicus curiae, when evidence was being submitted in support of claims by descendants of John McKee to establish his family tree, a group of greatgrandchildren claimed to be descended from one John McKee, Jr., a son who predeceased the decedent leaving one child, Edgar Boyd McKee (or McGee), who survived the decedent but died later leaving four children, the claimants. This claim by the descendants of John McKee, Jr., was at first opposed by the other claimants, but later, after the evidence was in, counsel representing**226 all of the so-called heirs and next of kin entered into a written stipulation wherein they agreed that the descendants of said John McKee, Jr., should be included as a branch of the family tree. The amicus curiae accepted the stipulation of counsel at its face value and found, as a fact, that the three present living children of the deceased grandson, Edgar Boyd McKee, and the estate of the one deceased, would be entitled to fractional interests in case an intestacy should ultimately be declared in this estate. In making this finding, however, the amicus curiae did say that the stipulation of counsel happily saved him from the necessity of passing on the question of the qualifications of the descendants of John McKee, Jr. (see page 42 of the final report).

It therefore appears that the children of the deceased grandson, Edgar Boyd McKee, were constituted parties in interest in this proceeding and placed upon the family tree largely because of the stipulation by counsel representing the estate of Dr. Henry McKee Minton and the descendants of Abby A. P. Syphax. This raises another question: if the estate of Dr. Minton and the descendants of Abby A.P.Syphax have no standing in this proceeding because of the effect of the Deed of Release as noted heretofore, then is the stipulation signed by their counsel admitting the kinship of John McKee, Jr., and Edgar Boyd McKee valid or does it become null and void? The Auditing Judge is of the opinion that the stipulation has no validity under these circumstances, and if the children of Edgar Boyd McKee are in fact found to be kin of the decedent, such finding must be based on the evidence produced in support of their claims, not upon the stipulation of counsel.

[12] It is argued that the stipulation is valid and effective in fixing the testator's family tree because all of the heirs, through their counsel, joined in the stipulation; one of the heirs, T. John McKee, who was a signatory to the Deed of Release, was alive and sui juris at the time of the testator's death; the relationship of all to the testator, other than that of John McKee, Jr., and his descendants, is unquestioned; and therefore under such circumstances the heirs would be competent to testify to the facts which they, through their counsel, spread upon the record by means of the stipulation. The case o f Fuller v. Cole, 33 Pa.Super. 563, is cited as authority for admitting the competency of the known descendants. The competency of the known kin of the decedent to testify as to pedigree and establshment of the family tree is conceded. The truth of the matter is, however, that all of them, in their testimony before the amicus curiae, failed to show any knowledge of the existence of a son, John McKee, Jr., or of a grandson, Edgar Boyd McKee. Indeed through their counsel, they vehemently denied the existence of such a line of descent. T. John McKee, the only grandchild who survived long enough to testify in this proceeding, did not mention the fact that there was a son, John McKee, Jr., or a grandson, Edgar Boyd McKee, although it is true he was not asked directly concerning them; his testimony having been 108 A.2d 214 Page 17 378 Pa. 607, 108 A.2d 214

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given and he having died before the present claimants put in an appearance. Mrs. Camilla Johnson, admittedly not related to the decedent, testified that she was intimately acquainted with the decedent and his family for some years prior to his death, but she never heard him or his children mention the fact that there was a son, John McKee, Jr., or a grandson, Edgar Boyd McKee. A close examination of the testimony of all the known kin of the decedent, as well as that of others who knew him during his lifetime, fails to disclose any intimation that there ever was a son born to the decedent.

The stipulation here in question was but an agreement among counsel to settle their differences in order that they might present a united front in attacking a cy pres application of the fund, and obviously the line of descent emanating in John McKee, Jr., was admitted solely on the strength of the evidence adduced in support of the claim. Clearly, without the stipulation, the testimony of the known descendants and witnesses other than the claimants **227 themselves would not support a finding that the testator ever in fact had a son or that he was survived by a grandson named Edgar Boyd McKee. If those who now claim from and through the son, John McKee, Jr., were obliged to rely wholly upon the testimony and evidence of the other parties in interest their case would indeed be hopeless. If weight were given to the contention that the stipulation is sufficient in itself to constitute the descendants of John McKee, Jr., as participants in distribution in case of intestacy, it would mean that the known kin of the decedent, not having any standing to inherit themselves, yet nevertheless might by agreement name those who are to inherit. This is anomalous and does not lend itself to reason.

[13] In the light of the recently discovered Deed of Release and its adverse effect on the rights of the claimants who, through their counsel, executed the stipulation, the Auditing Judge finds that the parties who joined in the stipulation have no standing in this proceeding, and were therefore without authority to stipulate that John McKee, Jr., was a son of the decedent. The stipulation is not in any way effective to prove kinship of the grandson, Edgar Boyd McKee, and those now claiming from and through him.

This leaves open one remaining question: was Edgar Boyd McKee (or McGee), son of John McKee, Jr., a grandson of our decedent and one of the heirs and next of kin as of the date of death? If so, his present living children and the estate of the one now deceased are the only parties entitled to participate in distribution in the event that an intestacy is declared in this estate, for it is quite clear that they are not barred by the terms of the Deed of Release for the reason that their parent, Edgar Boyd McKee, who was alive and sui juris when the deed was signed, was not a party to it.

[14] That there actually was a John McKee, Jr., cannot be doubted. There are numerous references to him in the documentary evidence adduced, and there is proof in the form of a photograph of him taken from an old family album which for years was in the possession of the decedent's daughter, Martha Virginia McKee Minton, and more recently among the effects of her son, Dr. Henry McKee Minton. The documentary evidence indicates somewhat less than conclusively that he was a son who predeceased the decedent, but paradoxically the testimony of witnesses who knew the decedent and his family in his lifetime and the decedent's will itself tend to disprove the fact.

Certain records of the United States Census Bureau for the years 1860 and 1870, certified copies of which were offered and admitted in evidence, indicate that in those years a John McKee, Jr., was living with and forming part of the family of our decedent in Philadelphia. In the year 1860, the said John McKee, Jr., is noted as being seven years of age, and in the year 1870 his age is given as eighteen years, which would fix his birthdate at or about the year 1853. From other evidence we know that our decedent, John McKee, married Emiline Prosser, his employer's daughter, prior to the year 1847, for it was during that year his daughter, Abby A.

P. Syphax, was born. It is apparent, therefore, that if the decedent did have a son born in the year 1853, such son was born during lawful wedlock and presumptively must have been legitimate.

The foregoing is buttressed by other documentary 108 A.2d 214 Page 18 378 Pa. 607, 108 A.2d 214

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proof: a photostatic copy of two pages from the Philadelphia City Directory for the year 1873, supplied by the Historical Society of Pennsylvania and admitted to be authentic, shows a John McKee, Jr., residing at 1030 Lombard Street, in Philadelphia, the home of our decedent; also an application for a certificate and the certificate itself showing the marriage of one John McKee and Melinda E. Robinson on September 11, 1873, in Alexandria, Virginia. In the application for marriage license it is significantly stated that John McKee, the applicant, was colored, twenty-one years of age, single, occupation ‘driver’, and that his parents' names were ‘Jno & Emaline McKee’. The stated age of twenty-one years would **228 confirm the birthdate previously mentioned, 1853. Other documentary proof and the testimony of one Lucy Katherine Brown, an aged witness, whose testimony was taken at her home in Alexandria, Virginia (pp. 328 to 356 of the notes), show beyond a doubt that our decedent did have deep roots in Alexandria and that he had some interest in and business dealings with John McKee, Jr., after the latter's marriage and during the time he resided there.

The witness, Lucy Katherine Brown, was a lifelong inhabitant of Alexandria, Virginia, having resided on Patrick Street in that city for more than fifty years as a neighbor of the McKee family there. At the time she gave her testimony, she was a woman perhaps one hundred years of age, of faulty memory regarding dates of happenings in the past, unable to walk, and her eyesight was failing. In spite of these physical handicaps, however, she was mentally alert and had a clear recollection of events which undoubtedly have a direct bearing on the question at hand. She was not able to positively identify certain old and faded photographs of the decedent, John McKee, or of John McKee, Jr., or of Rose Melinda McKee (the wife of John, Jr.), but she did recognize a more recent picture of Edgar Boyd McKee and she did identify his four children who appear in the photograph with him.

She had a very clear recollection of John McKee, Jr., coming to Alexandria and of his marriage there with a local girl, Rose Melinda, after which he was in the hauling business and she often saw him on the street with his horse and wagon. She testified that John's father visited Alexandria on at least one occasion to inspect a new wagon he had purchased for John, Jr., and while there he visited the local church which was very old. She was informed by John, Jr., that it was his father who gave him the wagon and that acquaintances she met on the street told her that the ‘old man’ was John's father. She stated that she remembered John having two sisters, Abbie and Martha, and that Abbie came to Alexandria and married ‘Mike’ Syphax there.

The witness further testified that John Jr., and Rose Melinda, his wife, had one child named Edgar, or Boyd; that John did not die in Alexandria, but she knew he had died because Melinda returned home ‘dressed in black’ and she did not see John again after that. She knew that Edgar, John's son, married a local girl named Lena, and that subsequently he died in Alexandria leaving four children whom she identified from the photograph as Lucretia, Marion, Mary and Edgar.

There were also submitted and admitted in evidence two certified photostatic copies of deeds, one showing that the decedent, John McKee, purchased a property on St. Asaph Street, in Alexandria, on October 9, 1869, in trust for his daughter, Abby Ann Prosser Syphax; the other deed showing that the same property was conveyed by John McKee, his daughter and her husband, on May 13, 1879, some ten years later. These deeds have no particular relevance, of course, in proving the relationship of John McKee, Jr., but they do show that the decedent did have some business interests in Alexandria at or about the time John, Jr., took up residence there in 1873, and they show that the decedent would have some reason to visit Alexandria at the time he is alleged to have been there.

Another certified photostatic copy of a deed dated June 7, 1873, shows that John McKee, Jr., purchased a property on Patrick Street, in Alexandria. This was a few months prior to his marriage with Melinda E. Robinson, which took place on September 11, 1873, and undoubtedly the Patrick Street house was occupied by them as a home until his death and for some years thereafter by his widow and son.

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Other documentary proof of the relationship of the present claimants to their parent, Edgar Boyd McKee, and to their grandfather, John McKee, Jr., takes the form of an exemplified photostatic copy of a partition proceeding which occurred in the Circuit Court of the City of Alexandria, Virginia, during the year 1927. That record shows that at the time of his death John **229 McKee, Jr., was the owner of premises 330 North Patrick Street, in Alexandria; that he died ‘several years ago intestate, his widow Melinda died in the summer of 1926, and no administration has been had in either estate, and she left no will, but all of their debts and funeral expenses and the debts against the property have been paid * * *’; that there was one child born to said John and Melinda McKee, by name ‘E. Boyd McGee or McKee’ who also ‘departed this life several years ago intestate, and his wife is Lena McGee or McKee, 48 years old * * *.’ The record also shows that E. Boyd McKee left ‘as his only children and heirs at law (who are parties to this suit) four children, to wit: Lucretia Bell, Marion Nimmons, both adults, Edward McGee or McKee and Mary M. McKee or McGee.’

Proof of the marriage of Edgar B. McKee and Lena Brawner is found in certified copies of the application for marriage license and the license itself, which show that the marriage took place on October 8, 1901, at 2902 ‘O’ Street, N. W., Washington, D. C. The application for license notes the age of Edgar B. McKee at the time as twenty-two years (see pp. 455 and 456 of the notes).

Another piece of cumulative evidence is a photostatic copy of certain pages taken from ‘Richmonds Alexandria Directory’ for the years 1899, 1900, 1901 and 1902, showing that in those years ‘Boyd McKee * * * barber’ and ‘Melinda McKee * * * widow John’ resided together at 330 Patrick Street, in Alexandria. This would seem to indicate that our Edgar Boyd McKee was a barber by trade, and that he resided with his widowed mother, Melinda McKee, in the family residence on Patrick Street during the years mentioned. Curiously, however, Edgar's wife, Lena, whom he married in October 1901, is not listed in the directory as a member of the household in the year 1902.

Also, finally there is in evidence a certified photostatic copy of a record on file in the Circuit Court of the City of Alexandria which shows that Melinda McGee was appointed and qualified as administratrix of the estate of her deceased son, Edgar B. McGee. Attached to that record are found depositions signed by one Walter Hall, who resided near John McGee, Jr., and knew him for a number of years; Lena McGee, widow of Edgar Boyd McGee (or McKee); and Lucretia Bell, one of the daughters of Edgar Boyd McGee. These depositions were made a matter of record in or about March, 1921, and they show conclusively that Edgar Boyd was the only child of John McKee, Jr., and that he was survived by his widow, Lena, and the four children who are the present claimants in this proceeding. This record also explains the discrepancy in the spelling of the family name, it appearing that John, Jr. and his son, Edgar Boyd, always wrote the name ‘McGee’ but that the correct spelling was ‘McKee’ and when the Patrick Street property was first bought by John, Jr. the name was written that way. The testimony of the four children of Edgar Boyd McKee also shows that the name is variously spelled by different members of the family (see pp. 252 et seq. of the notes). The uncontradicted testimony of the four children also shows that their mother, Lena McGee, died on November 20, 1942. In addition, it is to be noted as a matter of record that Edgar Boyd McGee, one of the four children who testified before the amicus curiae on May 19, 1948, died on October 29, 1948, intestate, leaving three minor children who are apparently without guardians. It is assumed that he died a resident of Philadelphia, although it is not so stated.

[15] [16] Wh ere rights of inheritance are concerned, and especially after the lapse of many years, a burden rests upon persons claiming kinship to a decedent to prove their claim ‘by a fair preponderance of trust claim ‘by a fair preponderance of trustworthy and satisfying evidence’. In re Link's Estate (No. 1), 319 Pa. 513, 180

A. 1, the evidence at hand is sufficient to meet this test. A careful reading and study of all the testimony and documentary proof now of record leads to the inescapable conclusion that there was in fact a John McKee, Jr.; that he was a legitimate son of our decedent, John McKee; that he was probably born in the year 1853, and he predeceased the decedent**230 (date of death un108 A.2d 214 Page 20 378 Pa. 607, 108 A.2d 214

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known). Further, said John McKee, Jr., married one Melinda E. Robinson (later known as Melinda Rose McKee), and she survived him dying on January 27, 1927; that one child was born of this marriage, namely Edgar Boyd McKee (or McGee), probably in 1879, and he died on December 8, 1918; that said Edgar Boyd McKee married one Lena Brawner on October 8, 1901, and she survived him dying on November 20, 1942. The said Edgar Boyd McKee, grandson of our decedent, John McKee, was alive and sui juris on April 6, 1902, when the decedent died, and he was therefore one of his heirs and next of kin under the intestate law in force at that time. The said Edgar Boyd McKee died intestate on December 8, 1918, as aforesaid, and his widow, Lena McKee (or McGee), subsequently died intestate on November 20, 1942; and he is now survived by three children, Lucretia McGee Bell, Marion McKee Tim-mons Turner and Mary McGee Tigner. The fourth child, Edgar Boyd McGee, died as aforesaid on October 29, 1948, intestate, and apparently no administration has as yet been raised in his estate.

[17] From the foregoing it is now clear that, if an intestacy should ultimately be declared in this estate in favor of heirs and next of kin or those who now have the right to take from or under them by devolution or devise, their names and fractional interests should be as follows:

Lucretia McGee Bell..... one-fourth

Marion McKee Timmons Turner .....one-fourth

Mary McGee Tigner..... one-fourth

Estate of Edgar Boyd McGee, Deceased, or an administrator of his estate, when duly appointed and qualified to receive the same..... one-fourth.

The Auditing Judge so finds as a matter of fact.

The first ground of alleged invalidity is predicated upon the theory that testator created two residuary estates, the first of which they claim is in paragraph 13th where he disposes of all of the rest, residue of his estate to Most Reverend Patrick John Ryan, Archbishop of Philadelphia * * * and Joseph P. McCullen, in trust for the purposes ‘hereinafter fully set forth and none other’, while the second residuary clause is contained in paragraph 27th, wherein he provides for the creation of Colonel John McKee's College. Climants argue that the college was to be a project separate and apart from all the others and not to be undertaken until those others had been completed; that since the gift for the college is dependent upon prior limitations which are void for remoteness, that gift likewise is void. They further theorize that the accumulated corpus of the first residuary estate was never to vest in any one, but was merely a scheme to create a gigantic private business enterprise devoid of any benevolent purpose. Mr. McKee's testamentary intention cannot be derived properly by a reading of the will in the sequence of its provisions. Apart from specific legacies of various articles of personal property and the direction for payment of debts and funeral expenses, he provided twentyone uses and projects to which his estate or portions thereof should be devoted. He specifically directed that all of the projects and uses mentioned, with the exception of those numbered 4, 5, 7 and 19, should be financed or paid out of income. In the Sixth and Eleventh Items of the will, he directed payments to be made out of income. In other sections, he provided that payments should be made out of the rents, issues, income and profits of his residuary estate. Since the residue was the only portion of the estate that the testator directed to be invested, it is clear that he must have intended all payments directed to be made out of income to be paid out of the income from the residuary estate, even though they may have been written into the will ahead of the residuary clause.

[18] The claimants' argument relegates the testator's charitable purpose as of secondary importance. The argument precludes the vesting in interest in the charity until after the so-called contingent and building funds were accumulated and all real estate improvements finally completed. The will **231 is devoid of such declaration or indication of intention. It is perfectly clear that the accumulation of income for contingencies and for building purposes was intended to run concurrently with the establishment and maintenance of the college after the death of the last surviving grandchild. The Twenty-seventh Item of the will expressly states when 108 A.2d 214 Page 21 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

his college should be built:

‘I order and direct that after the death of all my children and of all my grandchildren who may be living at the time of my decease my said Trustees shall hold all the said rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever, in trust, to use the net rents, issues, income and profits thereof for the erection * * * of a * * * college’.

Nothing contained in the provisions pertaining to the contingent and building funds is inconsistent with the direction to establish the college immediately after the death of the last of testator's children and grandchildren. In fact, in the Sixteenth Item, which provides for the accumulation of the $75,000 building fund, it is stated that the fund should be accumulated out of the net income from the residuary estate ‘not needed for the paying of said annuities and for other purposes of this my will’. A similar limitation in paragraph Seventeen is placed upon the improvement of the Stonehouse Lane property. It is quite clear that these two provisions are purely administrative or investment directions to the trustees, whereas the creation of the college is a dispositive provision.

Testator's dominant purpose was to found a charitable institution, the plans and specifications of which are meticulously set forth. Realizing that his estate might not be sufficiently large of liquid at the time of his death to carry out this purpose, he deliberately fixed the time of its commencement as of the date of death of the last survivor of his children and grandchildren who were living at the time of his decease being careful to stay well within the limit prescribed by the rule against perpetuities, i. e., a life or lives in being at the time of his death and twenty-one years thereafter. At the time he made his will in 1898, his youngest living grandchild was still a minor and it is safe to assume that he contemplated a long period of time before his college would be started; in fact, the elapsed time has been just about fifty years. Having been an investor in real estate for many years and having accumulated a modest fortune in those enterprises, he laid careful testamentary plans to enhance the value of his estate after his death so that there would be sufficient income from his residuary estate to build and maintain his college when the proper time arrived. He obviously had unbounded faith in the future development of real estate in and around Philadelphia, for he directed that none of his holdings should ever be sold but that they should be improved and made ever more productive as the years went on. In this regard he emulated the example set by Stephen Girard in his will made some seventy years before.

With great foresight, he provided for the immediate setting up of a contingent fund out of income to take care of ‘unfortunate contingency and accident’. The initial amount was fixed at $20,000, but this was to be augmented by the addition of $2,000 per year after the death of all of his children until the death of his youngest grandchild. He also provided for the improvement of his large lot of ground on Stonehouse Lane so that it might produce a maximum of income. This he provided by directing the accumulation of a second fund of $75,000 out of income ‘not required * * * for the other purposes of this my Will’, and said that if the Stone-house Lane project should exhaust the fund so accumulated then building should proceed at the expense of other income of the residuary estate. He then stated that after the Stonehouse Lane property had been fully improved, other real estate should be likewise built upon and made income producing, again with the admonition that only income should be used which was ‘not required * * * for the other purposes of this my Will’. Only then did he launch into what **232 might be considered his primary purpose, viz. the establishment and maintenance of his college for poor colored and white orphan boys. He trusted that by careful planning, his college might be both built and maintained out of income, leaving principal perpetually intact. In this respect, his will differs from that of Stephen Girard, which provided for the creation of the college out of principal as soon as practicable after his death. Testator had apparently envisaged the difference between the size of his estate and that of Stephen Girard would be taken care of by the lapse of time covered by the accumulation of income during the lives of his children and grandchildren. Mr. McKee's project was an excellent one and perfectly legal. The record is devoid of evidence to indicate that the accumulation and building pro108 A.2d 214 Page 22 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

grams could not have run concurrently with the building of the college. As the matter now stands, the question is moot. The project to accumulate income and make improvements to real estate has long since been abandoned as being impracticable, and the project to build the college is impossible at this time because of inadequacy of the fund.

[19] This construction of the will eliminates all considerations of violation of the rule against perpetuities and of the statute against accumulations. In City of Philadelphia v. Girard's Heirs, 45 Pa. 9, a perpetual trust for charity was held perfectly valid. See also Lennig's Estate, 154 Pa. 209, 25 A. 1049; Pepper's Estate, 154 Pa. 331, 25 A. 1058; Young v. St. Mark's Lutheran Church, 200 Pa. 332, 49 A. 887; Darlington's Estate, 289 Pa. 297, 137 A. 268. In conclusion, the Act of April 18, 1853, P.L. 503, Section 9, 20 P.S. § 3251, reenacted by the Act of April 14, 1931, P.L. 29, 20 P.S. § 3251 note, specifically states that any donation, bequest, or devise for any literary, scientific, charitable of religious purpose, shall not come within the prohibition of the act. This exemption in favor of charities has been construed and upheld in Re Archambault's Estate, 308 Pa. 549, 162 A. 801, and In re Wanamaker's Estate, 335 Pa. 241, 6 A.2d 852. See also, by analogy, the Estates Act of 1947, P.L. 100, Sec. 6(5), 20 P.S. § 301.6(5).

[20] [21][22] [23] In answer to the argument that the will was void because it lacked a cestui que trust capable of enforcing its terms, it is only necessary to point out that the Commonwealth of Pennsylvania stands in the position of cestui que trust ready and able to enforce any and all of the terms of a charitable trust. The State serves as visitor to all charitable institutions: In re John

C. Mercer Home for Disabled Clergymen of the Presby terian Faith, 162 Pa. 232, 29 A. 731. Property given to charity becomes in a measure public property which the State protects by inspection. Hamilton v. John C. Mer cer Home, 228 Pa. 410, 77 A. 630. In numerous cases our Orphans' Courts have been held possessed of the broad visitorial and supervisory powers of the Commonwealth. In re Toner's Estate, 260 Pa. 49, 103 A. 541; Lehigh University v. Hower, 159 Pa.Super. 84, 46 A.2d 516. The most important illustration of this power is expressed in Wilson v. Board of City Trusts, 324 Pa. 545, 188 A. 588, wherein the Orphans' Court of Philadelphia County was held to have jurisdiction to examine and audit the books of the Board of City Trusts of Philadelphia, the great majority of those trusts being testamentary and charitable. Therefore, this Court can at any time under its visitorial powers require the trustees of this estate to render an accounting in order to enforce the terms of the trust should occasion arise. Furthermore, such an action could be initiated by the Attorney General of the Commonwealth or by any other party claiming an interest. If the argument advanced by the claimants on this score is sound, it would seem that any testamentary gifts in trust to establish a charitable institution must be void, because there is no cestui que trust in existence capable of enforcing its terms. Such argument is untenable.

[24] [25] It is conceded that a gift to charity to vest in interest upon a remote contingency is void under the rule against perpetuities. **233In re Penrose's Estate, 257 Pa. 231, 101 A. 319; Ledwith v. Hurst, 284 Pa. 94, 130 A. 315; Stephan's Estate, 129 Pa.Super. 396, 195 A.

653. However, the charitable gift under the McKee will vested in the charity immediately upon the death of the testator. It is true that possession and enjoyment were postponed until the death of all children and grandchildren of the testator living at the time of his death, but as has been frequently pointed out, the rule against perpetuities is not concerned with mere possession and enjoyment; the time of vesting in ownership or interest is the criterion. In re Lawrence's Estate, 136 Pa. 354, 20

A. 521 , 11 L.R.A. 85; Gageby Estate, 293 Pa. 109, 141

A. 842.

[26] [27][28] [29][30] As to the time of vesting, the prevailing rule is that if a testator's meaning is vague, an interest will be construed as vested rather than contingent. What is required in cases of doubt is not the words of the will admit of a possible, or even reasonable, inference that the testator intended a contingent gift, but that such intention should appear plainly, manifestly and indisputably, otherwise the estate is always held to be vested. In re McCauley's Estate 257 Pa. 377, 101 A. 827; In re Groninger's Estate, 268 Pa. 184, 110 A. 465.

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There is always a strong presumption in favor of vesting. In re Shaw's Estate, 326 Pa. 456, 191 A. 159; Riverside Co. v. Twitchell, 342 Pa. 558, 20 A.2d 768.

The law inclines to treat the whole interest as vested and not as contingent and therefore in case of doubt or mere probability it declares interests vested. Letch worth's Appeal, 30 Pa. 175. Therefore, if a reading of the will of John McKee leaves any doubt as to when his charitable gift was to vest, the law requires immediate vesting so as to avoid the possibility of ownership remaining in abeyance. There is nothing in the provisions for accumulation that is inconsistent with immediate vesting in interest and ownership where the ultimate beneficiary is a charity which is to exist in perpetuity. The fact that no beneficiary is named to receive and enjoy the surplus income earned by the residuary estate until the death of the last surviving grandchild does not violate any rule of law. It is an implied direction to accumulate for the benefit of the charity. Furthermore, vesting in interest must have taken place immediately upon the death of the testator, if for no other reason than that there was no person or interest designated to receive the beneficial enjoyment of the property in the interim between his death and the death of the last grandchild, for the law, like all nature, abhors a vacuum and prefers the immediate vesting so that ownership will not remain suspended. Charities have always been favorites of the law. Therefore, it is concluded that neither the statute against accumulations nor the rule against perpetuities applies.

[31] The next of kin further argue that the testator's real purpose was not charitable, but that he desired the college to be established because of self-glorification and perpetuation of his name and also that the will nowhere evidences a general charitable intent as opposed to a particular purpose which must be carried out in detail or not at all.

In support of the first of these two points, the next of kin point to the fact that the college is to be called ‘Colonel John McKee's College’; that his name is to be inscribed on a large marble slab set in the front of the college building; that a large equestrian statue of himself in full military regalia be placed in front of the college upon which the legend ‘Colonel John McKee, The Founder of this College’ shall be placed; that the student and the band should parade and decorate his grave annually; the students should wear uniforms with brass buttons embossed with the name ‘McKee’, together with other indications to perpetuate his name and glorify his memory.

Colonel McKee's will differs from that of Stephen Girard in the fact that Girard did not require the institution established by his benefaction to bear his name although the trustees of his estate have given it his name. This does not in any sense seriously detract from the realism of the situation, viz., that McKee wanted established an institution of learning for an equal number of colored and white orphan boys. To destroy this charitable purpose because of the **234 obvious attempt by McKee to perpetuate his name would subvert the underlying motive of his benefaction. Self-glorification has been the basis of many benefactions woven of course, just as in the instant case with the requirement that such golrification be attached to a worthy service of mankind in some particular aspect. Our Pennsylvania authorities have met with this argument in other cases and have disposed of it uniformly in favor of the underlying intent. See Daly's Estate, 208 Pa. 58, 57 A. 180; In re Williams' Estate, 353 Pa. 638, 46 A.2d 237; In re Wilkey's Estate, 337 Pa. 129, 10 A.2d 425, 428. See also Restatement of the Law, Trusts, Section 368 , Comment (d) In Wilkey's Estate the Court said:

‘Or course she (testatrix) had also the motive, not uncommonly associated with a purpose otherwise wholly altruistic, to perpetuate her family name by a testamentary memorial’.

In Fire Insurance Patrol v. Boyd, 1888, 120 Pa. 624, 15 A. 553, 554, 1 L.R.A. 417, we find a passage most worthy of repetition in extenso:

‘Who can say that the millionaire who founds a hospital or endows a college, and carves his name thereon in imperishable marble, does so from love of God and love to his fellow, free from the stain of selfishness? Yet is the hospital or the college any the less a public charity because the primary object of the founder 108 A.2d 214 Page 24 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

or donor may have been to gratify his vanity, and hand down to posterity a name which otherwise would have perished with his millions? There is ostentation in giving as well in the other transactions of life. In some instances donations to public charities may be in part due to this cause. In others there may be the expectation of indirect pecuniary gain or return. * * * Coiled up within many a gift to public charity there is a secret motive, known only to the [S]earcher of all hearts. It may be to benefit the donor in this world, or to save his soul in the next. It would be as vain as it would be unprofitable for a human tribunal to speculate upon the motives of men in such cases. Nor is it necessary for any legal purpose. The money which is selfishly given to public charity does as much good as that which is contributed from a higher motive, and in a legal sense the donor must have equal credit therefor.’

I accordingly find this argument of the heirs and next of kin without merit, and therefore dismiss it.

Respecting the suggestion that the will does not as a whole disclose a general charitable intent as distinguished from a particular intent, that the establishment of the college is the particular intent and since that cannot be carried out, the gift cannot be cy pressed and falls. The next of kin point very particularly, inter alia, to several phrases in the will wherein the testator states that the estate shall be devoted to ‘no other purpose’. For instance, that none of the moneys, principal, interest, dividends, rents, issues, income, or profits arising from his residuary estate ‘shall at any time be applied to any other purpose or purposes whatsoever than those herein mentioned and appointed.’

The learned amicus curiae points out in his thorough and scholarly report that such argument is made without giving true effect to the entire pattern of the will and is predicated upon an improper emphasis on certain of its provisions and on a deceptive construction of those provisions divorced from their context. These expressions of the testator do not negate his desire to have his estate devoted to the predominant purpose specified in the will in a manner different from that set forth.

[32] The record indicates that the testator made an earlier will in 1884, fifteen years before he executed his last will, wherein he provided relatively small benefits for his daughter and grandchildren as he did in his last will and directed that his residuary estate should be devoted to the establishment and maintenance of a military school and armory for colored male **235 orphans. Therefore, we know that the present will was not a subject of hurried decision, but came only after mature deliberation and was deeply entrenched in his mind. An examination of other parts of the present will supports the conclusion that he had in mind the general charitable intent because he gave ten acres of his New Jersey real estate for the establishment of a Roman Catholic Church although he was not of that Faith. The pattern of the will follows that of Stephen Girard and the conclusion that McKee or his counsel deliberately copied portions of the Girard will is fairly sustainable. There are many similar provisions in each, such as the opening sentence to paragraph 22 of the Girard will, ‘* * * and I am particularly desirous to provide for such a number of poor male white orphan children, as can be trained in one institution, a better education as well as a more comfortable maintenance than they usually receive from the application of the public funds', should be compared with the same phraseology which appears in Item 27 of the McKee will. Public education at public expense at the time Girard and McKee made their wills was only under the Act of 1818, 7 Sm.L. 53 for ‘indigent orphan children or children of indigent parents residing within the said school sections.’ While Girard restricted his educational opportunities to ‘poor white male orphans', McKee went further and included colored orphans as well. The advanced thinking of this testator is something to be greatly admired and respected. Like Girard, he did not have the advantage of a formal education, and he had the additional handicap of being a member of the colored race which, even in his day, possessed less opportunity for education than white orphan boys did in Girard's day. He furthermore had been a military man and was devoted to the safety of his country and provided, therfore, that the purpose of the education of those benefitting under his will should be preparation for service in the United States Navy. He was far ahead of his time in his thinking in two particular re108 A.2d 214 Page 25 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

spects, that the best way to break down the racial barrier in this country is to have the races know each other and that this objective can best be accomplished when the members of them are poor and young and, therefore, unspoiled by the discriminations and prejudices entertained by most adults, which the same boys might grow into if they did not have the advantage of such education as McKee intended. The fact that the estate is inadequate to presently finance the construction and establishment of the college, as McKee envisaged it, is no reason why the entire benefaction should be stricken down and the estate distributed to the next of kin. Colonel McKee's primary intention, in my opinion, contained several facets which in their order of importance can be delineated as follows: (1) The education of poor white and colored orphan boys; (2) from the ages of 12 to 18 years; (3) that they live together; (4) that the education be nautical in character in order to prepare them for the service of their country; (5) that the college bearing McKee's name should be established. The last purpose, therefore, I place in the position of least importance. More will be said on this subject later on, however, because I am satisfied that through proper efforts such a college might eventually be established because of the interest that McKee's will should arouse in proper circles of this country.

To hold that this benefaction should be stricken down would be unworthy as well as illegal. Although the judicial context of Girard's will did not involve the application of the cy pres doctrine, nevertheless some of the language from the decisions is pertinent. In the City of Philadelphia v. Heirs of Girard, 45 Pa. 9, it was argued that the terms of the will were so fantastic as to be impossible of fulfillment. The Supreme Court of Pennsylvania said of this argument:

‘Possibly some of the directions given for the management of this charity are very unreasonable and even impracticable; but this does not annul the gift. The rule of equity on this subject**236 seems to be clear, that when a definite charity is created, the failure of the particular mode in which it is to be effectuated does not destroy the charity, for equity will substitute another mode, so that the substantial intention shall not depend on the insufficiency of the formal intention.’

The cy pres doctrine was dwelt upon in this decision:

‘And this is the doctrine of cy pres, so far as it has been expressly adopted by us. Not the doctrine ‘grossly revolting to the public sense of justice:’ * * * and ‘carried to the extravagant length that it was formerly in England:’ By which an unlawful or entirely indefinite charity was transformed by the Court of the Crown into one that was lawful and definite, though not at all intended by the donor or testator. But a reasonable doctine, by which a well-defined charity, or one where the means of definition are given, may be enforeced in favor of the general intent, even where the mode or means provided for by the donor fail by reason of their inadequacy or unlawfulness.

‘Our jurisprudence furnishes several illustrations of the doctrine thus restricted * * *. The meaning of the doctrine of cy pres, as received by us, is, that when a definite function or duty is to be performed, and it cannot be done in exact conformity with the scheme of the person or persons who have provided for it, it must be performed with as close approximation to that scheme as reasonably practicable; and so, of course, it must be enforced. It is the doctrine of approximation, and it is not at all confined to the administration of charities, but is equally applicable to all devises and contracts wherein the future is provided for, and it is an essential element of equity jurisprudence.’ (Italics added).

Terms of charitable bequests have frequently been departed from under the cy pres doctrine of Pennsylvania. See In re Daly's Estate, 208 Pa. 58, 57 A. 180; In re Kramph's Estate, 228 Pa. 455, 77 A. 814; Le high University v. Hower, 159 Pa.Super. 84, 46 A.2d 516; Smith's Estate (Philadelphia Fountain Society), 18 Pa.Dist.R. 1024 and the recent action of this Court authorizing the sale of the so-called Girard Estate property in South Philadelphia in defiance of the terms of Girard's will that none of his real estate should ever be sold.

In the consideration of what is a general charitable 108 A.2d 214 Page 26 378 Pa. 607, 108 A.2d 214

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intent, we can well start with the quotation from Vidal

v. Girard's Ex'rs, 2 How. 127, 11 L.Ed. 205: ‘These trusts are of an eleemosynary nature, and charitable uses, in a judicial sense. Donations for the establishment of colleges, schools and seminaries of learning, and especially such as are for the education of orphans and poor scholars are charities in the sense of the common law. The conservative provisions of the statute of 43 Elizabeth, Chap. 4, have been in force in Pennsylvania * * * for the more extensive range of charitable uses which chancery supported before that statute and beyond it.’

In the City of Philadelphia v. Heirs of Girard, supra, our Supreme Court said:

‘Whatever is for the love of God or for the love of our neighbor, free from the stain of everything that is personal, private or selfish, is a gift for charitable uses'. Price v. Maxwell, 4 Casey 23 .

[33] Colonel McKee's intention is to be gathered from the four corners of his will and in any opinion he has impressed upon this fund such a public interest as will authorize the Court to exercise its cy pres powers and award the fund otherwise than to his next of kin or other legatees. In his will he provides that ‘such a number of poor colored male orphan children and poor white male orphan children * * * as can be trained in one institution may receive a better education as well as a more comfortable maintenance than they usually receive from the application of public funds.’ We must, therefore, conclude that his primary motive as stated was the education**237 of orphan children and the fact that such orphan children cannot be educated in the college and therefore through the means that McKee intended does not mean that such children shall be deprived of the type of education that McKee wanted.

[34] Directions by the testator that none of the trust res shall at any time be applied to any other purpose or purposes whatsoever than those mentioned (par. 28, Sec. 1) and other similar phrased do not restrict the gift narrowly to the establishment of the college and exclude their application to the other purposes in the order hereinbefore outlined. The language of the section does not indicate that unless all purposes can be fulfilled, that none shall be carried out. Application of the fund for some of them is all that is required. What is inhibited is their use for some purpose not mentioned in the will.

[35] This gift is in trust for charitable and patriotic purposes. It is distinguished from a gift on condition. In conveyances on condition, the grantor may enter for condition broken, but in conveyances in trust the proper remedy for breach of trust is the appointment of a new trustee. Barr v. Weld, 24 Pa. 84 .

[36] [37] Statements negativing a use for any other purpose, for example, ‘and for no other purpose’, will not create a defeasible estate unless they are accompanied by restraints upon alienation, forfeiture or reverter clauses. In the absence of such clauses, the negating provision will be disregarded as superfluous. Phillips Gas & Oil Co. v. Lingenfelter, 262 Pa. 500, 105 A. 888, 5 A.L.R. 1495, Sapper v. Mathers, 286 Pa. 364, 133 A. 565, 47 A.L.R. 1172, and Borough of West Pittston v. Clear Spring Co., 22 Pa.Dist.R. 190. See Scott on Trusts, 401.2, p. 2126. Distinguished from this line of cases is In re Randall's Estate, 341 Pa. 501, 19 A.2d 272, cited by claimants. There the Court invoked clauses of forfeiture and reverter in the will following a nonuser for 23 years. The reference in this decision to the invalidity of the gift we regard as dicta and not controlling. In Kirk v. King, 3 Pa. 436, real estate was deeded to the employers of a private school for an English school house. After non-user for seventeen years, the Court held the gift was conditional, the main reason being that the school was not a charitable institution. Therefore, it is concluded as a matter of law that the instant gift being for a charitable as well as a patriotic use and there being no restraints upon alienation or clauses of forfeiture or reverter in the will that the gift to the trustees is in fee simple.

Counsel for the next of kin propounds the argument that the property should go to them under the Act of 1885, P.L. 259, 20 P.S. c. 2, Appendix, 196, because the charitable gift fails for uncertainty ‘or for other reason’. They contend that neither the Act of 1889, P.L. 173, 10

P.S. § 14, nor the Act of 1895, P.L. 114, 10 P.S. § 13, repeal the provision of the Act of 1885, supra. They 108 A.2d 214 Page 27 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

maintain, therefore, that in 1902 when the testator died, the law was that in all cases where the testator's charitable intent was so specific that it could not be approximated, the property should go to the heirs at law and next of kin, citing In re Trim's Estate, 168 Pa. 395, 397, 31 A. 1071. They further argue that the re-enactment of the Act of 1855 by the amendment of 1895 did not change the law in this regard, because of the doctrine that re-enactment by amendment does not repeal intervening statutes. In re Toner's Estate, 260 Pa. 49, 57, 103

A. 541, and the Statutory Construction Act of 1937,

P.L.
1019, 46 P.S. § 583. In Hilderbrand's Estate, 47 Pa.Dist. & Co. 537, Northampton County, an award was made to the next of kin because the Court concluded that approximation of the testator's intent was impossible.
At the time of the testator's death in 1902, the statutory law with respect to cy pres was in a state of confusion. There were in force at that time five somewhat conflicting statutes. They are as follows: Act of 1855,
P.L.
328, 10 P.S. § 13; Act of 1876, P.L. 211, 10 P.S. § 15; Act of 1885, P.L. **238 259, 20 P.S. c. 2, Appendix, § 196; Act of 1889, P.L. 173, 10 P.S. § 14; and Act of 1895, P.L. 114, 10 P.S. § 13.

[38] Having found as a matter of law that the will of the testator reveals a general charitable intent, the argument thus presented is without foundation and the claimants, as next of kin, have no standing to claim the estate. In Wilkey's Estate, 1930, 337 Pa. 129, 10 A.2d 425, it was held that where property is given in trust to be applied to a particular charitable purpose and it is or becomes impossible, impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the Court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor and that the heirs of testatrix had no standing to question the disposition of the testatrix's residuary estate. Justice Stern, in reviewing the legislation, said, 337 Pa. at page 135, 10 A.2d at page 428: ‘If * * * the Act of 1885 was not technically repealed, it was at least so devitalized as to make its subsequent operative force practically negligible.’

As to whether or not the Estates Act of 1947, 20

P.S. § 301.1 et seq., which became effective on January 1, 1948, prior to the date of death of T. John McKee, grandson of the testator, and which provides that the Court shall order a distribution of an estate in a manner as nearly as possible to fulfill the intention of the conveyor, whether his charitable intent be general or specific, has any application to the claims of the heirs and next of kin is not decided. However, this legislation, it can be said, points in the direction to which the thinking of both the Legislature as well as the Courts was leading.

Shortly after his appointment, the amicus curiae wrote a letter under date of December 8, 1947, to the Secretary of National Defense, Washington, D. C., requesting from him a list of names and addresses of such schools and institutions as might possibly qualify cy pres under the terms of the will. The reply supplied names of twelve schools which included in their curricula subjects having to do with naval science. These institutions were then notified by the amicus curiae by enclosing proper reprints of the published notice, following which several of them informed the amicus curiae of their intention to appear as claimants. Only four of them actually appeared. No other naval academies appeared as a direct result of the published notice.

The testimony taken before the amicus curiae, which is part of the record before the Auditing Judge, is summarized in his report and from that summary the following is deduced:

Tabor Academy is located at Marion, Massachusetts, on the shore of Buzzard's Bay. It occupies about 25 acres of land and buildings valued at approximately $900,000 and has a student body of 204, consisting of boys only, ranging in age from 13 to 18 or 19 years. The courses of study are at the high school level and the students are given ample instruction in the handling of boats. In the last few years only three colored boys have attended the Academy, but there is no reason why more could not be taken if they meet the required standards. The school offers a heavy majority of the courses of 108 A.2d 214 Page 28 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

study prescribed by the McKee will. Even the remotest compliance with the provisions of the will respecting the election of directors by the pastors of the various Roman Catholic Churches of the City of Philadelphia would be entirely impossible, the Academy being under the supervision of the United States Maritime Commission. The Students are in uniform during the work day. There are no facilities to care for homeless boys throughout the year, particularly during the summer and other vacations.

Maine Maritime Academy, established at Castine, Maine, in 1941, is managed by a Board of nine Trustees appointed by the Governor of the State of Maine. The By-Laws permit admission of out-of-state students, but two-thirds of the total enrollment must at all times be residents of the **239 State of Maine. The enrollment at the present time is limited to 200, enlarged at one time to 270. The Commandant is Captain William W. MacKenzie, while Commander William C. P. Bellinger, a regular naval officer assigned to the Academy by the United States Navy Department, directs the Naval R. O.

T. C. training program. There are no colored boys attending the Academy presently, only two having ever applied for admission. The school would accept colored students without segregation if they were otherwise qualified. Students must be between the ages of 17 and 23 years. All members of the faculty and Board of Trustees are of the white race. Annual cruises are taken aboard a ship owned by the United States Government, but loaned to the Academy for the purpose.

Massachusetts Maritime Academy, located at Hyannis, Massachusetts, and established in 1942, is managed by three commissioners appointed by the Governor of the State of Massachusetts. Applicants must be not less than 17 years of age and not more than 21. Normal enrollment is 200, 172 being the present complement. There is one colored boy in the school at the present time, but there is no discrimination. A white student at the Academy testified from his personal observation that the one colored boy lives with the other students on equal terms; he sleeps in the same dormitory with them, eats at the same table, and attends all classes with them. The students pay no tuition, but the expenses are met by the Commonwealth of Massachusetts with the aid of some federal grants. The curriculum comprehends naval education similar to that taught at the United States Naval Academy at Annapolis.

California Maritime Academy. The Superintendent, Commodore Russell M. Ihrig, U. S. Navy, Retired, presented a claim for $100,000 for the purpose of erecting and equipping a library on the grounds of the Academy, which is located at Valejo, adjacent to San Francisco, California. The school was established by an Act of Legislature of the State of California in 1929, St.1929, p. 1108, and it is under the direct supervision and control of the Department of Education of that State. Courses are the equivalent of those of the United States Naval Academy at Annapolis. Candidates for admission must be between 17 and 23 years of age; must be high school graduates and able to pass rigid physical examinations. This school is equipped to accommodate 200 students, although at the present time there are but 102 in attendance. There are very few boys in the school who reside outside the State. These include no colored boys and there never have been any colored students. Nevertheless, there is no rule or regulation of the Academy or law of the State of California which would exclude colored boys otherwise qualified. Admittedly, this claimant can make no commitment to accept and provide for any fixed quota of Philadelphia orphan boys, either white or colored. The school has a training vessel known as the ‘Golden Bear’, provided by the United States Maritime Commission and it is used exclusively for practical instruction of the students, making an annual training cruise of approximately fifteen weeks, manned entirely by the faculty officers and midshipmen, who perform all duties and stand all watches. This cruise includes visits to foreign ports.

Other additional institutions filed claims for the fund as follows:

Downingtown Industrial School and College (also known as the Downingtown Industrial and Agricultural School) located in East Brandywine Township about two and one-half miles from Downingtown in Chester County, Pennsylvania, has been in operation since 1907 and consists of 110 acres of land and several buildings 108 A.2d 214 Page 29 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

of a temporary character. Some permanent buildings were destroyed by fire in February, 1947. The student body consists of about 100 boys and girls, coming mainly from families of low income in the so-called slum areas of Philadelphia and vicinity. A large proportion of the students are either orphans or fatherless. There are no white boys or girls attending this school presently, but there is nothing in the rules or regulations or in the By-laws which would prevent them from going there **240 if they wished. The age limits are not definitely fixed, but appear to be now as always between 12 and 18 years. The courses of study cover many of the subjects mentioned in McKee's will. The institution does not pretend to be a naval training school, but it offers all of the courses which a boy would need in order to follow a naval career. The curriculum is at the high school level plus a considerable amount of vocational training. The Commonwealth of Pennsylvania subsidizes the school. It presently needs money for capital improvements. Any buildings erected with funds from this estate would be inscribed as memorials to John McKee. It appears that this institution is the only one of its kind in Eastern Pennsylvania which provides board, lodging, care, education and parental guidance to poor, colored, fatherless children from Philadelphia. The school is not restricted to orphans. The institution is non-sectarian, being a State-aided one. The students pay approximately $250 per year and receive as free training $525 in value, the deficiency being borne by the State. The principal of the school testified that after investigation, he found that the United States Navy wants its personnel to be high school graduates and that one of the best ways to train a man for the Navy is to give him vocational training along with his high school education. This school offers training in 54 of 62 listed naval careers. There are two battalions of United States Naval Reserves, one meeting in Chester and the other in Wilmington, both within easy access to the Downingtown School. It is understood that both of these units will accept colored boys from the Downingtown School.

Lincoln University located near Oxford, Chester County, Pennsylvania, 47 miles from Philadelphia, consists of about 18 rather old buildings. The school was founded in 1854 as the Ashmum Institute and in 1865 the name was changed to Lincoln University. Its faculty is 40 in number, 60% of whom are colored and 40% white. There is a very small percentage of white students in attendance at the present time, although at one time in the 1930's the number was as high as 11%. Education is at the college level from the years 17 to 21. The University is neither co-educational nor sectarian. The University, if awarded the funds from this estate, would erect a building and maintain a ‘college’ on the University campus named in honor of John McKee. There are 500 students enrolled presently. The policy has always been inter-racial, presently for poor boys, education being carried on at a minimum cost. The average cost per student is about $640 per year including room, board, tuition, etc. Financial aid is received from the Commonwealth of Pennsylvania and preference in admission is offered to Pennsylvania boys, there being presently 69 boys from the Philadelphia area, representing 13% of the total student body. The University claims instruction in all but one of the subjects specified in the McKee will, but offers no special naval training. Lewis M. Stevens, Esq., one of the prominent Philadelphians on the Board of Directors of the University and its Chairman, stated that the University proposed to build and create a ‘Colonel John McKee College’ in the form of a library and classroom structure at an estimated cost of $300,000, the balance to be used for maintenance and for scholarships, should the fund be awarded to Lincoln University. He also mentioned that the University owns and operates a farm where the boys work.

Spring Garden Institute and Automotive Training Center located at Broad and Spring Garden Streets in Philadelphia, and with an Automotive Training Center in North Philadelphia, accommodating approximately 800 day students and 1,150 evening students at the former, while the Automotive Training Center accommodates 400 day students and 400 evening students. The faculty numbers 118. The student minimum age limit is 16 years with no maximum. The courses are midway between those of a vocational school and a college. There are no dormitory facilities and none for residents the year around. The curriculum includes many of the studies specified in the McKee will, but the 108 A.2d 214 Page 30 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

school makes no pretense of being a naval academy. **241 The type of training, however, is that which is customarily required of non-commissioned officers and skilled men in the naval services. 90% of the school's revenue comes from student tuition fees and the balance from endowment funds and donations. The school is non-sectarian and non-profit. All the officers and members of the Board serve without compensation. At present approximately 15% of the student body is colored and about 5% females. Approximately 45% of the students in the Automotive Training Center are colored. The institute does not include in its curriculum any languages or cultural subjects. Its courses are terminal rather than preparatory.

Morristown Normal and Industrial College located at Morristown, Tennessee, consists of fifteen school buildings and dwelling on 75 acres of land, with a capacity of 400 boarding students, but at present less than

200. The college has been in operation for sixty-eight years under a Charter granted by the State of Tennessee. The faculty and Board of Trustees are both white and colored, but all of the students are colored. The main source of income is tuition fees, but support is furnished by the Methodist Church and contributions from friends. If all of the funds in the McKee Estate were awarded to this claimant, it would change its name to correspond with the prescribed in the McKee will, erect a statue of John McKee and put the students in uniforms. There is no claim that the institution is a naval college. It is co-educational with the ages of students ranging between 12 and 18 and 19 years and instruction is at the high school or junior college level. The curriculum includes substantially all of the courses prescribed in the McKee will. Although the school is largely supported by the Methodist Church, the students are free to attend churches of their own choice and there are no services of any particular religious faith conducted within the school itself. The student body is composed generally of underprivileged and needy boys and girls. It was testified that a few years ago an attempt was made to secure a better representation of white students, but ‘there were some State provisions that would prohibit doing it’. Public opinion and race prejudice are the only elements mitigating against white students attending the school. The school year covers nine months, but there is accommodation for a limited number of students during the summer months and throughout the year. It is not a naval school and its students come from all over the country even from Africa. The school is located in the Northeasterly section of Tennessee about 42 miles from Knoxville and enjoys an excellent reputation among the people of the community.

Mercy-Douglass Hospital located at Fiftieth Street and Woodland Avenue, Philadelphia, was organized originally in 1895. It is presently a consolidation of two separate hospitals. It renders normal hospital service and has a school for nursing. The Hospital is nonsectarian, its staff and Board being made up of both white and Negroes, the same, however, being predominantly colored. It is not a naval school nor primarily an educational institution. The patients treated at the hospital are of mixed races. Dr. Henry Minton, a grandson of the testator, was one of the original founders of Mercy Hospital and one of its most beneficent donors. It is proposed, if the funds are awarded to the hospital from this estate, they would be applied either to the erection of a new building to be called the ‘Colonel McKee Building’ or the establishment of an endowment fund.

Jehovah Jireh Baptist Institutional Church located at Forty-eighth Street and Haverford Avenue, Philadelphia, consists of three buildings. It is of the Baptist denomination, with a congregation of about 400 members of the colored race. Should the church receive funds from the estate, it would build an auditorium as a memorial to John McKee. The church is not an educational institution.

Moroccan Technical Training School and Moorish National Berkshire Homestead. This organization is an adjunct of the Moorish Science Temple of the Divine and **242 National Movement of North America. The main physical plant consists of five buildings on about 16 1/2 acres of land in Great Barrington, Massachusetts, formerly occupied by a school for boys, but now abandoned. The institution also owns 350 acres of land about four miles out of Great Barrington and 250 acres at Woodstock, Connecticut. Its present facilities will ac108 A.2d 214 Page 31 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

commodate about 300 boys, but the school has not yet been put in operation because of a lack of funds. The institution is Moslem, but it takes in all creeds, having an inter-organizational membership of Christians, Jews and all races and creeds. No one is barred. Segregation is not permitted. For the past two years the property has been used for under-privileged youth and old people. The school is not yet in operation, but when organized will accept only underprivileged orphan boys. Should the funds of this estate be awarded to this applicant, it would set up a school and possibly name it after the testator.

In passing judgment upon the merits of the eleven cy pres claimants discussed above, reference must be made initially to the proposed action expressed hereinafter which may result in the final accomplishment of Colonel McKee's purposes in the establishment of a college, if not his own or bearing his name, certainly much more approximating his intention. Every one of the claimants complies substantially with at least some of the testamentary specifications and every one agrees to fulfill others if an award of principal should be made to it, some being more specific than others as to how they propose to carry out the terms of the will. However, as to the major objectives of the testator, all of the claimants frankly admit the impossibility of full compliance. Careful study of the record reveals that the majority of the specific purposes of the will would have to be completely ignored were an award made to one or more of these claimants. This is, no doubt, due to the testator's unique plan. Certainly some of the funds would have to be applied to some other purpose or purposes than those mentioned and appointed in the will. One or more of the claimants would agree to hold a major portion of principal intact and expend income only for the maintenance of college buildings already in existence or to be erected. Likewise, they all would agree to render periodic accountings to this Court and no doubt publish information concerning the state of the trust from time to time. While the amicus curiae indicates that the fund could be awarded in his opinion to one or more of the claimant institutions and in compliance with the provisions of any award could be controlled by the Court, nevertheless he indicates with much justice and wisdom that the principal should not be disposed of at this time because if such principal were awarded all hope of fulfilling one of the most important provisions of the will, namely, the establishment of a college on McKee's property in Bristol Township, Bucks County, Pennsylvania, would be dissipated. He adds, ‘Surely, if any spark of hope remains of building Colonel John McKee's College on the site selected by him for the purpose, that spark should be kept alive and fanned into the flame of reality if at all possible.’

A very interesting part of the report is the discussion respecting those provisions of the will regarding the nature and character of the buildings of the college, the erection of a statute of the testator, dormitory accommodations and many others. Of equal interest are the observations respecting the provisions having to do with the student body, curriculum and management, the clothing of the students, the band of music-some of these, he points out, are practically impossible of accomplishment.

Of the four naval academy claimants, only Tabor Academy meets fully the requirements of the will as to age limitations, the students there being admitted between the ages of 13 and 14 and graduate at about 18 or 19. This aspect of the testator's purposes is most important, for while he indicated that curriculum of his college should be based upon that of the United States Naval Academy at Annapolis, he nevertheless, in my opinion, intended education to be at the high school level rather than at **243 the college level. It is most important that none of the naval academy claimants now has or ever had any appreciable number of Negro students. The reasonable explanation is offered that they never had any large number of applications by Negro boys, although some who applied may have been denied admission because of inability to pass the rigid physical or mental examinations. These academies are practically all under State regulation and in each instance the State law prohibits, or at least does not sanction segregation or discrimination between the races. The Auditing Judge agrees with the amicus curiae in his conviction that any of these institutions could and undoubtedly would accept a limited number of Negro boys who 108 A.2d 214 Page 32 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

would qualify for admission and that they would all be given the same treatment as other students; nevertheless none of the claimants now has any substantial number of Negro students much less a student body composed of an equal number of white and Negro boys. Furthermore, it does not appear that the students at any of these schools are fatherless orphans or drawn from the poorer classes. In view of the fact that John McKee, the testator, lived a major portion of his life in Philadelphia and died here, I do not believe it was his intention to relieve the tax burdens of the people of other States by providing funds for students in their institutions, but that he intended such tax relief or assistance to aid his native State. He clearly intended to confine his benefaction to the residents and taxpayers of Philadelphia.

[39] The amicus curiae points out very properly that any direct award of principal to one or more of the claimants from outside the Commonwealth of Pennsylvania would entail the loss of control of the fund by this Court; that future accountings, if any, would probably be in some foreign jurisdiction; that this is important because this Court should retain visitorial powers and a measure of control over the fund by attaching conditions to its award requiring periodic accountings. The Court, therefore, accepts and adopts the suggestion of the amicus curiae that no part of principal or income be awarded to any of the naval academies considered above.

The claims of the Downingtown School, Lincoln University, Spring Garden Institute and the Morristown College are very impressive and worthy of the utmost consideration. While they are not naval schools, they are educational institutions of established standing and worth. The first three are located in Pennsylvania and hence within the jurisdiction of the Court. Furthermore, they more or less serve the Philadelphia area. Morristown College is outside the Commonwealth and, therefore, subject to the objection that any award to it might entail loss of control of the fund by this Court. The principal objection to the Downingtown School, Lincoln University and the Morristown College is that the student bodies are so overwhelmingly Negro that they do not fulfill one of the testator's dominant intentions that the student body be of an equal number of Negro and white boys. Furthermore, they do not provide for the naval training testator prescribed. None of the claimants is truly inter-racial. Every one is either predominantly white or all Negro. While they all deny any taint of intolerance, discrimination or segregation, none conforms to the high interracial standard set by the testator. In my opinion, the so-called white schools would, no doubt, accept a limited number of Negro students, but would not accept as many as one-half. This is supported by the testimony. To what is stated respecting the so-called Negro schools, it must be added that they would welcome white students up to the prescribed proportion of one-half and it is not due to any fault of those institutions or to any lack of effort on the part of their management that they are not truly inter-racial within the meaning of this will.

While the Spring Garden Institute has a large number of Negro students, nevertheless the fatal defect in this institution's claim lies in its lack of dormitory facilities and the fact that it does not give a strictly naval course, although it teaches a majority of the subjects set forth in the testator's will and as well vocational trades, most if not all of which are useful in the Navy. **244 Finally, it does not meet the requirement as to age limits.

The Downingtown and Morristown Schools, while they meet the age limitation, are co-educational and, therefore, do not qualify. Lincoln University is exclusively for boys, but the educational level is of the college university standard and no students are admitted as young as 12 years of age. Accordingly, Lincoln University fails to meet essential requirements of the will.

Mercy-Douglass Hospital is admittedly not an educational institution much less a naval school. Therefore, in spite of the fact that it is a most worthy hospital with an efficient training school for nurses, it is clearly not eligible for any direct award in this estate. Jehovah Jireh Baptist Institutional Church is a denominational church and not a school. The Moorish National Berkshire Homestead is a school in prospect, not yet in operation and with no fixed, definite curriculum or plan of operation. Obviously, these last two claimants are appearing 108 A.2d 214 Page 33 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

mainly because they need funds for expansion of their programs and, while the projects they sponsor are probably worthy, yet they do not qualify under the Auditing Judge's theory of the application of the cy pres doctrine. Therefore, the claims of the Mercy-Douglass Hospital, Jehovah Jireh Baptist Institutional Church and the Moorish National Berkshire Homestead are dismissed.

The Auditing Judge is much impressed with the learned amicus curiae's reaction to the evidence supporting these claims. He states that while all the evidence was presented with a high degree of sincerity and honesty of purpose, it points up an important thing, that the intention of the testator to establish better racial relations should be adhered to by not awarding the funds to any of the claimant-institutions, but that the door should be kept open for the fulfillment of the dominant purpose of the testator at some future time.

The amicus curiae, whose services have been invaluable to the Court in the assembling and weighing of the facts as well as the research and presentation of the law, recommends the award of the fund back to the present trustee in further trust as follows: That the Court appoint a Scholarship Committee, inter-racial in character, of not less than five nor more than ten persons, the said committee to select by competitive examination or otherwise an equal number of poor white and Negro orphan boys, preferably of the City of Philadelphia, mainly those seeking naval training to whom scholarships or scholarship aid shall be awarded from the income of the estate, the said committee to be denominated ‘John McKee Scholarship Committee’. The committee shall specify the amount and kinds of aid the recipients should receive and the institutions which they should attend and such other matters as are necessary to a proper administration of their office. He also recommends that the trustee be authorized to expend the income upon proper vouching by the said committee.

Events have proved the unique wisdom and foresight of the testator's purpose and scheme. One of the greatest social problems facing this country today, the handling of which the whole world is watching with keen interest, is the so-called Negro problem. When this will was written, few white men had envisaged it and it was, therefore, neglected, but Mr. McKee felt it keenly and decided to do something about it. He did so in an intensely practical and timely manner. No doubt he felt that immediate establishment of the college at the time of his death would be inauspicious and that his estate, which was then inadequate for the purpose, would yield enough income prior to the death of his last surviving grandchild living at the time of his death to raise a fund large enough to then establish the college, at which time also his plan for such a non-segregated institution would be generally accepted by the public. The plan for a non-segregated school is one of the most practical and tangible ideas yet offered for the solution of this great sociological problem. Teaching colored and white to live together helps enormously to break down the artificial social barriers society has traditionally raised between them, and to live and study together in preparation for **245 service in the Navy of the United States is of great added value and incentive to the project.

[40] [41] Had Mr. McKee's investment sense been as shrewd as the great Stephen Girard or had his investments been as fortunate as have those of Girard's, this college might be a reality today. This is mentioned because McKee's will is modeled very largely upon Girard's will. The fact that this fund of approximately $1,000,000 is patently inadequate to fulfill the testator's purpose is not, in my opinion, sufficient reason at this time to declare his purpose impossible of accomplishment. The objective is of such transcendental importance, not merely locally, but nationally, that further effort should be made to carry it out. The testator himself has pointed the way in which it may be done. Paragraph 28, Section 4 of his will provides that his trustee may accept funds from other sources for the purposes of the trust. This invitation to augment what can be regarded as a substantial nucleus provided by the testator cannot be now ignored and the door shut permanently upon possible eventual materialization of McKee's idea. This provision makes this trust what is commonly called an ‘open end trust’ as distinguished from a closed trust, such as that established by Stephen Girard. In the closed trust, other assets cannot be added even by the settlor or testator, let alone from outside sources. However, in an open end trust, such augmentation is possible. If this 108 A.2d 214 Page 34 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

augmentation is not feasible, then the fund might even be added to other funds under cy pres for the accomplishment or approximate fulfillment of the purposes and if necessary under some other auspices or management, subject to the approval of the Court. It is perfectly possible that an institution might be established on a state or a national, rather than the strictly local, level provided by McKee's will and since, as stated, the problem is a national one and not merely a local one, it can be expected to attract substantial gifts possibly through a foundation established on a state or a national level with persons of equal prominence serving as trustees. It is conceivable also that an institution might be established under a charter granted by the State of Pennsylvania and that the Legislature of Pennsylvania might aid in the development and operation of the project. This fund could well be added to or form a basis of such a project under the cy pres doctrine and if such a college were ultimately established, its doors could be opened to not merely Philadelphia boys as provided in the will, but from all sections of the State with adequate representation provided for Philadelphia boys. The changing conditions since the death of the testator, unforeseen by him, call for some such measures, which would not be in defiance of, but in furtherance of his intent. Therefore, the trust assets will be awarded back to the trustee to be held by him and again accounted for not more than five years from the date hereof. In the meantime, the Court will undertake to explore the possibilities hereinbefore expressed.

[42] The refore, in adjudicating this account and making the award of the fund back to the trustee to be retained by him, I shall divide the purposes of the award into two parts: The first shall be for the establishment of scholarship aid as recommended by the learned amicus curiae, but with the requirement that another accounting be made by the trustee not more than five years hence, and secondly, the intervening time to be utilized by the Court and those that it can persuade to engage in the project to take appropriate means to obtain sufficient funds through a foundation or other fund raising agency on a national scale, which funds can be merged with this trust or the funds of this trust merged with other funds under terms and conditions agreeable to the foundation, the trustee and the Court. The Court possesses the broadest possible powers for the application of this fund to fulfill the purposes of the will even to the extent of awarding all of it, principal and income, to an independent agency so long as that agency's purposes conform to what the Court regards as Colonel McKee's intention and the Court can retain **246 and exercise its visitorial powers. No doubt we will have no hesitation in using that power should occasion arise.

It is to be noted of record that the accountant herein, His Eminence Dennis J. Dougherty, Cardinal Archbishop of Philadelphia, as succeeding trustee, died on May 31, 1951, and his successor in this office of Archbishop of the Diocese of Philadelphia, Most Reverend John F. O'Hara, C. S. C., was installed in such office on January 9, 1952. He will now be substituted as succeeding trustee of the fund in accordance with the terms of the will of John McKee. Joseph P. McCullen, co-executor and co-trustee, died December 2, 1929.

The fund presently before the Court and available for distribution, both principal and accumulated income, will be awarded hereunder to be retained by the succeeding trustee in further trust for the uses and purposes outlined above. The trustee is directed to file another account for audit not later than five years from the date of final confirmation of this adjudication, during which period efforts will be made to probe the possibility of securing additional funds necessary to carry out the purpose of the testator as expressed in his will.

In the meantime, the recommendations of the amicus curiae as set forth on page 160 et seq. of his report are adopted pro forma and the Auditing Judge will make the appointment of a Scholarship Committee and outline its duties and responsibilities in a supplemental adjudication following final confirmation of this adjudication.

There was no objection to the account as originally filed, or to the supplemental account subsequently submitted which shows a balance of principal and accumulated income of $914,522.17 together with real estate as follows:

108 A.2d 214 Page 35 378 Pa. 607, 108 A.2d 214

(Cite as: 378 Pa. 607, 108 A.2d 214)

City properties assessed at Hamilton Township, Atlantic County, New Jersey 2059 acres assessed at Egg Harbor Township, Atlantic County, New Jersey 1050 acres assessed at Bristol Township, Bucks County, Pennsylvania 66 acres assessed at 64,800.00 22,550.00 12,150.00 9,500.00
making a total balance of $1,023,522.17
which, composed as set forth therein, together with any additional income received, is awarded to be retained by Most Reverend John F. O'Hara, C. S. C., Archbishop of the Diocese of Philadelphia, as substituted succeeding trustee in accordance with the terms of the will of John McKee, deceased, in further trust for the uses and purposes outlined above. END OF DOCUMENT
And now, September 25, 1952, the account is confirmed nisi.
*609 John F. Thaete, Philadelphia, Myron M. Fineman, New York City, for appellant.
James E. Gallagher, Jr., Gerald Ronon, Stradley, Ronon, Stevens & Young, William T. Coleman, Jr., D. Alexander Wieland, Herbert R. Cain, Jr., Mercer Lewis, Philadelphia, for appellees.
*608 Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
PER CURIAM. The decree of the court below is affirmed on the opinion of Judge Bolger. Costs to be paid from the corpus of the estate.
Pa. 1954 In re McKee's Estate 378 Pa. 607, 108 A.2d 214