
    James’s Estate.
    
      Testamentary trastees — Survival of discretionary power to substituted rustee.
    
    1. A discretionary power vested in testamentary trustees virtute ofltoii survives o a substituted trustee appointed by the Orphans’ Court under the Act of April 22, 846, § 1, P. L. 488.
    
      Testamentary trustees — Chanties—Discretionary power to select objects abject to approval of Orphans’ Court judges.
    
    2. Where a testatrix directs her trustees to distribute the residue among five nstitutions for the benefit of poor girls to keep them from going astray and to ncourage them in virtuous habits, etc., subject to the approval of the judges of he Orphans’ Court, “who will please see that it goes for the benefit of poor young iris to enable them to maintain their virtue rather than to reformatories for their estoration after they have fallen,” an affirmative duty is cast upon the judges, equiring them to approve the exercise of the discretion of the trustees and not lerely to interfere where the discretion has been abused; hence, the distributees dll be required to administer the money so awarded them as a separate and istinct trust and at the expiration of three years file their accounts, and the court dll then determine whether the trust has been fulfilled in the manner intended y the testatrix.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1891, No. 449.
    Testatrix died Dec. 22, 1889, leaving a will dated June 6, 1867, with a numer of codicils, by the 5th of which, bearing date April 24, 1886, she provided, n the extinction of her family, as follows:
    “. . . In that event I give and bequeath the whole of my residuary and 2versionary estate to my executors and trustees or their successors living at íat time who I direct to divide it into five equal shares or parts and distribute ie same to five institutions for the benefit of poor young girls to keep them from going astray to encourage them in good virtuous habits to be plain an< moderate in their dress and of good moral character to be trained to eeonom; and strictly virtuous Christian principles.
    “The five institutions to be selected at that time by the Trustees then actinj subject to the approval of the Judges of the Orphans’ Court of the City o Philadelphia who will please see that it goes for the benefit of poor youn; girls to enable them to maintain their virtue rather than to reformatories fo their restoration after they have fallen.”
    One of the two testamentary trustees resigned and the other was remove from office, and the accountant, the Land Title & Trust Company, wa appointed substituted trustee by the Orphans’ Court under the Act of April 2S 1846, § 1, P. L. 483.
    The accountant, in the performance of its duties, through its officers, afte careful investigation, selected as the beneficiaries the following five institi tions to receive the residuary estate under the terms of the codicil: Rig Sister. Association of Philadelphia, Children’s Aid Society of Philadelphia, Famil Society of Philadelphia, White-Williams Foundation and Young Women Christian Association of Philadelphia.
    At the audit, there appeared counsel for various charitable organization not included in the selection by the accountant, which were engaged in wor of the nature contemplated by the testatrix. It was conceded that thes organizations were neither legatees nor creditors, but they desired to be hear as friends of the court, lest, from lack of enlightenment on the charter qualif cations, the purposes, capacity and character of the services actually rendere by the selected institutions, the intentions of the testatrix might be thwartei
    The Auditing Judge (Thompson, J.) held that the substituted trustee coul exercise the powers given the original trustees, and, after a careful analys: of the testimony, reached the conclusion that the discretion vested in tl accountant had been wisely exercised, or at least that there had been no abus of discretion, saying:
    “If valid, the first objection [that the discretion vested in the executors ar trustees did not survive to the substituted trustee] defeats any selection l the accountant. The only authorities cited in its support are Children’s Ho pital, 10 W. N. C. 313, and Murphy’s Estate, 184 Pa. 310. In the first cas the executors and trustees named in the will, although authorized to appoii a successor to fill any vacancy and giving the person or persons so to 1 appointed all the power and authority conferred upon the nominations in tl will, had all died without making any appointment; and, as the case aro before the Act of 1855, it was held that the power of selection was dead ai could not be revived by the appointment of a trustee by this court and did n enure to an administrator d. b. n. c. t. a. But in the latter case, where tl selection of the beneficiaries was to be made by the executors or their su cessors, and one of the executors had died, it was held that the surviving exe utor had power to designate the beneficiaries, which were to be benevolei charitable and religious institutions and associations, without specifying ai particular purpose for which they were to use the gifts; and because tl institutions selected were all charitable to some extent, the designations 1 the surviving executor were approved.
    “In the present case, the testatrix vests the discretion of selection in h executors and trustees, ‘or their successors living at that time’ — ‘the truste then acting’ — and the appointment by this court of the accountant as si cessor to the trustees named in the will cannot be gainsaid. The successor to distribute the estate to ‘five institutions for the benefit of poor young girl and this court is called on by the will, not to select the institutions that are to administer the iund, but to ‘see that it goes for the benefit of poor young girls’ to accomplish the end sought by testatrix — an oversight neither more nor less intensive or extensive than the duty imposed upon the court by existing law in all cases of trusts.
    “In Dulles’s Estate, 218 Pa. 162, where the executors were granted power to lispose of and distribute residue among such religious, charitable and benev->lent purposes and objects or institutions as in their discretion shall be best aid proper, Chief Justice Mitchell said: ‘It is said that the word benevolent is lot definite enough for the court to enforce. But it is not necessary that it ¡hould be. The definition and application of that word are not for the courts, >ut for the executors. The only authority of the court is to prevent a manifest diversion to a purpose clearly outside of the class prescribed. So long as ;he executors are exercising their right of selection in good faith, the right to lo so is in them by the express words of the testatrix’s will.’ See, also, Kim-lerly’s Estate (No. 1), 249 Pa. 469, and Acts of 1855, 1889 and 1895 relating o charities. I, therefore, hold that the selection was confided to the accountant as succeeding trustee, and to it alone.
    “Discretion, wherever reposed, may never be exercised perfunctorily, arbi-rarily or without due consideration. ‘The very term itself, standing alone nd unsupported, imports the exercise of judgment, wisdom and skill, as con-radistinguished from unthinking folly, heady violence and rash injustice. V'hen technically employed in legal instruments, its proper acceptation is ^separable from the idea of dispassionate conclusion:’ Paschall v. Passmore, 5 Pa. 295, 804. As said by Audenried, P. J., in Lubin Manuf. Co.’s Appeal, 5 Dist. R. 578: ‘By discretion is meant the power to discriminate and determine what under existing circumstances is right and proper. The lawful exerise of discretion involves a fair consideration of all peculiar features of the articular question to the disposition of which it is to be applied. It excludes ot only the play of fancy or caprice, but also servile adherence to a hard and ist general rule.’ It is to be treated in a liberal spirit, and where its exerise is based upon consideration of all information and facts available, with ue regard to the purpose of the discretion, it may not be lightly set aside, Ithough had it been committed to another the result might be different. Judg-tents may differ and yet be honest; and to establish a violation of discre-on, it is always incumbent to show, by clear proof, a wanton exercise: aschall v. Passmore, supra. '
    
    “The general subject received consideration as early as 1844 in Grandom’s [state, 6 W. & S. 537, referred to by Mr. Cadwalader and Mr. Hart. That ¡cisión, although diligent search fails to find it cited in subsequent reports, highly illuminating in the present situation. That testator desired his ustees to give his money to a benevolent society, if any existed, ‘to alleviate ;he suffering of) the most prudent of the poor, but not the intemperate, in ■oeuring fuel, clothing and other necessaries which such persons want in inter.’ Such a society was created under the name of the Grandom Institu-on, and to it the trustees appointed the estate. The gift was claimed by the Mladelphia Temperance and Benevolent Association, whose objects, as stated its charter, were ‘the promotion of the temperance cause . . . and the dis-msation of the charity of the association to the suffering poor of Philadel-da and its districts of good moral character, who do not use intoxicating luors as a beverage.’ Chief Justice Gibson, in sustaining the appointment ’ the trustees, said: ‘The office of these trustees involved the exercise strictly a mixture of both trust and power. ... To induce a chancellor to control the exercise of a power like the present would require proof of an applicatiox of the charity to purposes inconsistent with the testator’s design; and wha' proof of it have we here?’
    “And, indeed, what proof of abuse of its discretion by the accountant hav< we in the present case? To afford opportunity for such proof, I opened th< door as widely as possible and earnestly invited the production of evidenci showing the facts upon which a finding of disqualification of any of th( selected corporations could be based. But no such evidence was offered. Th< plain inference is that no such facts exist: Samson’s Estate, 22 Pa. Superio: Ct. 93.
    “Considering the commendable, conscientious effort by the accountant b exhaust all possible sources of information to enable it to perform its, not b; any means easy, task, with an eye single to the achievement of the greates good to the greatest number of beneficiaries, I cannot find that there has beei any abuse of discretion, and, therefore, see no reason for withholding m; approval. Distribution will be directed accordingly.”
    
      Philip Price, for Bethesda Children’s Christian Home of Chestnut Hil exceptant.
    
      Harry C. Hart and Fronds B. Biddle (of Barnes, Biddle & Morris), fo Board of Counselors of Girl Scouts, exceptant.
    
      John Cadwalader, Jr., for Young Women’s Boarding Home Associatioi amicus curise.
    
    
      Bernard L. Frankel, for Big Sisters’ Association; Spencer Erwin, for Fan ily Society; Rodney T. Bonsall, for Young Women's Christian Associatioi and Theodore S. Paul, for Children’s Aid Society and White-Williamso Foundation, contra.
    June 3, 1927.
   Gest, J.,

There can be no doubt that the present accountan as trustee, is vested with a certain discretionary power to distribute the estal in accordance with the directions contained in the fifth codicil to the will t the testatrix. This codicil expressly refers to the successors of the executoi and trustees, but, aside from this, we may refer, in addition to the cases cits by the Auditing Judge, to Kershaw’s Estate, 27 Dist. R. 659, and Anderson Estate, 269 Pa. 535.

A discretion being thus vested in the accountant, by which it has been exe: cised, it would, in the usual case, be necessary for an exceptant to show th; this discretion has been abused, in the technical legal sense of the term; bi the will in this case confers a discretion which is not absolute in terms, ina much as the testatrix expressly says that the selection of the beneficiaries “ subject to the approval of the Judges of the Orphans’ Court who will plea; see that it (meaning her estate) goes for the benefit of poor young girls ■ enable them to maintain their virtue rather than to reformatories for the restoration after they have fallen.” This appears to us to cast an affirmatih duty upon the judges of this court. It is not enough for us to be satisfied th; the trustee has not abused its discretion; we are required to approve its exe cise. It may be that were we required in the first instance to select the fr institutions best qualified to carry out the beneficent intent of the testatri we might have selected those represented by some of the exceptants, or pe haps others that have not appeared. But the primary duty of selection h; been, in our opinion, conscientiously exercised by the trustee, to which belongs, and this exercise of its discretion is entitled to great weight, esp daily as it has been approved by the Auditing Judge in his careful adjudic tion. Our approval of the institutions so selected is a continuing duty, and tl future alone can determine whether other institutions would be better able to carry out, in a satisfactory manner, the special purpose of the charitable and beneficent provisions of the fifth codicil; so, in confirming the adjudication, we add to it that each of the distributees shall keep and specifically administer the moneys so awarded to them as a separate and distinct trust, and that each of them shall, at the expiration of three years, file its account in order that the court may then determine whether the trust has been fulfilled in the manner intended by the testatrix. To this extent the adjudication is modified.

All exceptions are dismissed and the adjudication, as modified, is confirmed absolutely.

Henderson, J., was absent.  