83 Pa. D. & C. 492 Page 1 3 Fiduc.Rep. 274, 83 Pa. D. & C. 492, 1953 WL 4499 (Pa.Orph.) Orphans' Court of Pennsylvania, Philadelphia County. Charities 37(1) McKee Estate 75k37(1) Most Cited Cases No. 654. Distribution of assets of a charitable trust cy pres was delayed for a five year period during which income was to April term, 1902. be applied under a scholarship plan authorized by the audit- February 6, 1953. ing judge and by which the court retains supervisory con- trols of a fund for a limited period of years "in order to per- **1 *493 Exceptions to adjudication. mit the situation to crystallize." West Headnotes Charities 37(6) Wills 618 75k37(6) Most Cited Cases 409k618 Most Cited Cases Where it is clear from a will as a whole that testator's intent The fact that no beneficiary is named to receive and enjoy is primarily charitable, a provision that the fund is to be surplus income earned by testator's residuary estate during used for the specific charitable purposes outlined and for the life of certain of his descendants does not violate any "no other purpose", does not prevent the application of the rule of law where it is clear from the will as a whole that the doctrine of cy pres, unless accompanied by restraints upon surplus income is to be accumulated for the benefit of a alienation, forfeiture or reverter clauses. charity. Charities 37(8) Charities 4 75k37(8) Most Cited Cases 75k4 Most Cited Cases Where a testator who was a Negro and military man left his A gift to charity is not rendered invalid where it vests imme- residuary estate of approximately $1,000,000 for the pur- diately upon testator's death because possession and enjoy- pose of founding and maintaining an inter-racial school for ment are postponed during the life of certain of testator's orphan boys desiring naval training, and the fund is insuffi- descendants. cient for such purpose and there is no existing institution which exactly meets the criteria testator had in mind, the Charities 4 fund will, under the doctrine of cy pres, be retained for a 75k4 Most Cited Cases period of time sufficient to permit the completion of a thor- A charitable bequest is not rendered invalid by reason of ough study as to whether with other gifts or support testat- certain provisions in the will intended to perpetuate testat- or's primary plan is at all feasible, the income to be used or's name in connection with the charitable institution for meantime for scholarships to existing institutions approxim- which he has provided. ating as closely as possible what testator had in mind. Charities 34 Perpetuities 8(1) 75k34 Most Cited Cases 298k8(1) Most Cited Cases A charitable bequest is not rendered invalid because of an Neither the rule against perpetuities nor the statute against alleged absence of any cestui que trust capable of enforcing accumulations is applicable to charitable bequests. its terms since, as to charities, the Commonwealth always stands in the position of cestui que trust ready and able to Perpetuities 8(8) enforce its terms. 298k8(8) Most Cited Cases Charities 35 Where a testator's primary purpose is to devote his residuary 75k35 Most Cited Cases estate to the founding and support of a charitable institution, If a testator's meaning is vague, interests will be construed the fact that in outlining an as vested rather than as contingent. investment program concerned principally with real estate, of which his investments largely consisted, he provided for © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 83 Pa. D. & C. 492 Page 2 3 Fiduc.Rep. 274, 83 Pa. D. & C. 492, 1953 WL 4499 (Pa.Orph.) accumulations in order to improve such real estate and make the will. it more productive, does not render the disposition of his es- tate invalid, especially where there is nothing to indicate *495 The audit was continued, and by decree dated Novem- that the accumulation and building program could not have ber 12, 1947, John Blessing, Esq., was appointed amicus run concurrently with the foundation of the charitable insti- curiae with powers of a master, with authority to advertise tution. his appointment, conduct hearings and to make such invest- Before KLEIN, P. J., BOLGER, LEFEVER, HUNTER, igation or inquiry as might enable him to make appropriate SAYLOR and SHOYER, JJ. recommendations to the court as to the action it should take respecting distribution of the residue of the estate of de- **2 *494 The facts appear from the following extracts from cedent. [FN1] the adjudication of FN1. This report will recite only that part of the ad- BOLGER, J., Auditing Judge. judication dealing with the cy pres aspects of the case. Voluminous evidence was offered to establish John McKee died on April 6, 1902, and this trust arose un- the family tree of decedent and to determine which der his will dated December 8, 1899, which was duly admit- of his present living descendants would be entitled ted to probate in Philadelphia County on May 21, 1902. to inherit under the intestate law in the event that After making numerous bequests and devises (which have the fund could not be awarded cy pres. Also it was long since been satisfied and as to which there is now no determined that certain unpaid annuities be- controversy), he bequeathed certain annuities to his daugh- queathed under the will to testator's daughter and ter and grandchildren and directed that his residuary estate grandchildren should not be awarded at this late should be held in trust and, after the deaths of all his chil- date. For a full discussion of the facts and the law dren and grandchildren who were living at the time of his related to these matters see the report of the amicus decease, used for the purpose of establishing and maintain- curiae and the adjudication filed of record in this ing a naval school to be known as ""Colonel John McKee's case. College". In addition, the will provided for an elaborate pro- gram of conversion of extensive real estate holdings into in- **3 Based upon the financial condition of the estate as re- come producing property and gave meticulous directions flected by the account originally filed and upon considera- concerning the operation of the school, all of which will be tion of the written opinion of a qualified expert, the amicus referred to more in detail hereafter. curiae found as a fact and all counsel of record agreed that testator's project for construction and maintenance of Col. When this, the third account of the trustee, came before me John McKee's College in accordance with the terms of the for audit on November 3, 1947, counsel for the accountant will is impossible of accomplishment at this time. The stated that it was filed because of the death of Dr. Henry amicus curiae therefore recommended in his report that the McKee Minton, grandson of decedent, on December 29, fund be awarded to be retained by the trustee and the in- 1946, it being thought that he was the last survivor of testat- come therefrom used cy pres for scholarship purposes which or's children and grandchildren who were living at the time will be discussed in detail hereafter. of his (testator's) death. It was stated that the fund in the hands of the trustee consisted of approximately $650,000 in The surviving descendants of decedent, on behalf of them- personalty and $150,000 in unconverted real estate, and that selves as well as the estates of their deceased parents, have the fund was inadequate to carry out testator's charitable attacked the validity of the provisions of the will concerning purpose to establish a naval school as specified in the will. establishment of Col. John McKee's College. The court was therefore requested to exercise its cy pres jur- isdiction and to determine, if possible, what other charitable The first ground of alleged invalidity is predicated upon the purpose might fit the testamentary intention as expressed in theory that testator created two residuary estates, the first of © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 83 Pa. D. & C. 492 Page 3 3 Fiduc.Rep. 274, 83 Pa. D. & C. 492, 1953 WL 4499 (Pa.Orph.) which they claim is in paragraph *496 thirteenth where he item of the will expressly states when his college should be disposes of all of the rest, residue of his estate to Most Rev- built: erend Patrick John Ryan, Archbishop of Philadelphia ... and Joseph P. McCullen, in trust for the purposes "hereinafter **4 "I order and direct that after the death of all my children fully set forth and none other", while the second residuary and of all my grandchildren who may be living at the time clause is contained in paragraph twenty-seventh, wherein he of my decease my said Trustees shall hold all the said rest, provides for the creation of Col. John McKee's College. residue and remainder of my estate, real, personal and Claimants argue that the college was to be a project separate mixed, whatsoever and wheresoever, in trust, to use the net and apart from all the others and not to be undertaken until rents, issues, income and profits thereof for the erection ... those others had been completed; that since the gift for the of a ... college". college is dependent upon prior limitations which are void Nothing contained in the provisions pertaining to the contin- for remoteness, that gift likewise is void.