McKEE ESTATE, 378 Pa. 607 (1954)

108 A.2d 214

McKee Estate.

Supreme Court of Pennsylvania.April 15, 1954.
September 27, 1954.

Trusts — Charitable — Accumulations — Rule against perpetuities — General charitable intent — Establishment of college — Education of poor white and Negro orphans — Perpetuation of testator’s name — Inadequacy of fund — Doctrine of cy pres — Retention of fund for future accomplishment of testator’s purposes.

Where it appeared that testator, after making numerous bequests, including annuities to his daughter and grandchildren, provided that his residuary estate should be held in trust and that, after the death of all his children and grandchildren living at the time of his decease, the income should be used for the purpose of the establishment and maintenance of a naval school, bearing his name, in which poor Negro and white orphan boys were to be educated, and set out detailed directions for the operation of the school; and further provided that specific accumulations of income

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should be made to take care of contingencies and for accomplishment of an elaborate program of conversion of testator’s extensive real estate holdings into income producing properties; and it further appeared that the trust fund was inadequate to carry out testator’s charitable purpose to establish the school as specified in the will; it wa Held that (1) the accumulation of income for contingencies and for building purposes was intended to run concurrently with the establishment and maintenance of the school after the death of the last surviving grandchild; (2) the will did not violate the rule against perpetuities or the statute against accumulations; (3) the bequest was a charitable gift even though testator intended to perpetuate his name; (4) there was a general charitable intent to provide for the education of orphan children, as distinguished from a particular intent to establish the college specified in detail in the will, and the doctrine of cy pres was applicable; (5) the intention of testator to establish better social relations should be adhered to by not awarding the funds to any of the claimant institutions, which did not meet all of the testimentary specifications; and (6) the fund should be retained by the trustee for (a) the establishment of scholarship aid to poor white and Negro orphan boys, with the requirement that the trustee file an accounting not more than five years later, and (b) utilization of the intervening time to take steps to obtain sufficient funds, to be merged with the trust or with which the trust funds could be merged, for the fulfillment or approximate fulfillment of testator’s purposes.

Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

Appeals, Nos. 225, 226, 227 and 228, Jan. T., 1953, from decree of Orphans’ Court of Philadelphia County, 1902, No. 654, in Estate of John McKee, Deceased. Decree affirmed.

Audit of account of trustee. Before BOLGER, J.

Adjudication filed, disallowing claims of testator’s descendants, refusing to make awards to claimant charitable institutions, and awarding fund back to trustee. Exceptions to adjudication dismissed and final

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decree entered, before KLEIN, P. J., BOLGER, LEFEVER, HUNTER, SAYLOR and SHOYER, JJ., opinion by KLEIN, P. J. Exceptants appealed.

The facts are more fully set forth in the adjudication of BOLGER, J., reported in 83 Pa. D. C. 492.

John F. Thaete, with him Myron M. Fineman, for appellants.

James E. Gallagher, Jr., with him Gerald Ronon, D. Alexander Wieland, Herbert R. Cain, Mercer L. Lewis and Stradley, Ronon, Stevens Young, for appellee.

OPINION PER CURIAM, September 27, 1954:

The decree of the court below is affirmed on the adjudication of Judge BOLGER. Costs to be paid from the corpus of the estate.