
    White’s Estate
    Before Lamorelle, P. J., and Gest, Henderson, Van Dusen and Sinkler, JJ.
   The facts appear from the adjudication of

Henderson, J., auditing judge.

By deed dated March 5, 1875, Josiah P. White provided as follows:

“I hereby assign, transfer and set over to ‘The Trustees of the Presbyterian House’ incorporated by the Legislature of Pennsylvania, the following securities [$10,000 in five different railroad bonds and $1,000 in cash] to be held and invested by the said Trustees, in safe and productive securities, and the interest, income and dividends thereof, where and as collected to be divided equally between and paid over to the persons who shall at the time of any division and payment be the Treasurers respectively of the Sessions of the First Presbyterian Church of the Northern Liberties and the Temple Presbyterian Church both of the City of Philadelphia, to be applied by or under the direction of the said respective Sessions and in their full and entire respective discretion for the relief and assistance of the worthy poor of the said respective churches, whether communicants or not. With full power in said Trustees to change the investments of said Trusts from time to time and at any time that they may deem it expedient or necessary so to do.”

Certain testimony was taken, and a stipulation of further facts was filed of record by agreement of the parties.

“The Trustees of the Presbyterian House”, incorporated by the Act of April 21, 1855, P. L. 575, of the General Assembly of this Commonwealth, was, by decree of the Court of Common Pleas No. 4 of this county, as of September term, 1884, no. 423, merged with the “Trustees of the General Assembly of the Presbyterian Church in the United States of America,” incorporated under Act of our General Assembly, approved March 28, 1799, 3 Sm. L. 360.

In 1908, the property of First Presbyterian Church of the Northern Liberties was conveyed to the Trustees of the Presbytery of Philadelphia, which succeeded to the religious work of said church. In 1917 the trustees of the presbytery disposed of the property, and the proceeds of the sale were set aside and designated as the “Northern Liberties Church Endowment Fund”, the income to be used for city mission work. First Presbyterian Church of the Northern Liberties was dissolved on July 2, 1917. The trustees of the presbytery are doing mission work in the vicinity of the former Northern Liberties Church, at the Eighth Street Wayside Mission, 238 North Eighth Street, at First Hungarian Presbyterian Church, Franklin and Thompson Streets, and at other places in the city.

The former First Presbyterian Church was at the corner of Sixth and Buttonwood Streets; Temple Presbyterian Church is at Franklin and Thompson Streets; and Central North Broad Street Presbyterian Church is at the corner of Broad and Green Streets.

The one half of the income formerly paid to the First Church has, since its dissolution in 1917, been paid by the trustee by merger, to the presbytery of Philadelphia and by it used, inter alia, on account of the Wayside Mission. This mission is conducted by five Presbyterians and five Methodists, each paying one half the expenses.

This account has been filed so that the Temple Church can present its claim to receive this half of the income on the theory that under the cy pres doctrine it is best qualified to carry out the intent and eleemosynary purpose of the donor.

The sessions of the two churches were by the deed of trust directed “in their full and entire respective discretion” to expend one half of this income “for the relief and assistance of the worthy poor of the said respective churches, whether communicants or not. . .

It should be observed that we have two distributing trustees for two groups of the ultimate objects of the charities — the worthy poor; both these groups of worthy poor still exist in the respective neighborhoods but one of the distributing trustees — the First Presbyterian Church, has ceased to exist. I have before me two applicants for the privilege of disbursing this one half of the income to the “worthy poor . . . whether communicants or not,” of this church neighborhood — the Temple Church and the Presbytery of Philadelphia which is using this one half towards carrying on the Wayside Mission.

This mission is about three city blocks from the site of the abandoned church, while the Temple Church is about eight blocks distant. The latter church should not use this one half for its poor, and it has not shown that it has any facilities for reaching the poor of the old neighborhood. The presbytery is actually carrying on religious work nearer to the community to be benefited.

What then is the situation that confronts us? This one half of the income, down to the time of its dissolution, was distributed by the First Presbyterian Church. It may be called the distributing trustee, as distinct from the trustee holding the fund and collecting the income, which is paid over to the distributing trustees.

J. Bussell Breitinger, for exceptant; Stanley J. Thornton, contra.

March 23, 1934.

Our several acts of assembly were passed to cover this kind of a situation. See section 10 of the Act of April 26,1855, P. L. 328, as amended by the Act of May 23, 1895, P. L. 114, and also the Act of May 9, 1889, P. L. 173, which provides “no disposition of property . . . for any religious or charitable use, shall fail for want of a trustee or by reason of the objects ceasing, or depending upon the discretion of a last trustee, or being given in perpetuity . . . but it shall be the duty of any court ... to supply a trustee, and by its decree to carry into effect the intent of the donor or testator”.

The problem before me is to “supply a trustee”. I must do that, having in mind which of the applicants can most readily reach the worthy poor of the neighborhood of the former First Presbyterian Church,

As Mr. Justice Sadler said in Hunter’s Estate, 279 Pa. 349, I must order “that the fund be used in the way most likely to effectuate the intent” of the donor; and again our Supreme Court said in Thompson’s Estate, 282 Pa. 30, 37, the court should appropriate the fund “in such way as will accomplish the intention of the donor or testator as nearly as possible”.

With these principles in mind, I have reached the conclusion that one half of the income formerly payable to First Presbyterian Church of the Northern Liberties should be paid to the Trustees of the Presbytery of Philadelphia for the purpose of aiding the worthy poor of the Wayside Mission located at 238 North Eighth Street, because it is in a better position to reach those of the neighborhood of Sixth and Buttonwood Streets where the former First Presbyterian Church was located.

Van Dusen, J.,

The exceptions of Temple Presbyterian Church are dismissed and the adjudication is confirmed absolutely. Temple Presbyterian Church has no right by a sort of survivorship to the half of the income that was formerly distributed by First Presbyterian Church of the Northern Liberties. The charitable purpose of the donor was to benefit the worthy poor connected with the latter church, which was at Sixth and Buttonwood Streets, and it is our duty to see that the income is applied as nearly as possible to that purpose, now that there is no longer any such church. The poor of Temple Presbyterian Church, eight blocks away, are hardly of the same neighborhood, especially when we recall that the donor gave part of his gift to the poor of that church as a separate class and neighborhood. The worthy poor of the Wayside Mission, conducted in part by the Presbyterian Church at 238 North Eighth Street are as close an approximation in neighborhood and church association as could probably be found. We think that the auditing judge has soundly exercised the judgment and discretion which it is the duty of the court to apply in such a matter.

It appears that the presbytery has for some years been receiving a part of the income now under discussion and putting it into a general fund out of which the Wayside Mission has been supported. We wish to emphasize that the object of the charity is not the church, but the worthy poor of the church — not religion, but bread and warmth.  