
    Seitz et al. v. Seitz et al.
    A testator by his will devised real estate to certain pastors and their successors in office, in trust, to collect the rents thereof, and, after paying taxes, etc., to pay over the balance to certain benevolent societies who were to distribute it as a charity among the poor. If the societies should “fail to apply the funds received as aforesaid,” the trust was revolted and the property devised to four of the testator’s sons. In a case stated in ejectment, between two of the heirs at law of the testator, as plaintiffs, and the four sons, devisees, as defendants, it was agreed that the pastors and benevolent societies had refused to receive and disburse the property, and that a private Act was subsequently passed by the legislature releasing the commonwealth’s interest in the property in favor of the heirs-at-law of the testator. The court below held that the Act of April 26,1855, § 10, to prevent the failure of a charity for want.of a trustee, did not apply, that the commonwealth had no interest in the property, and that, on the declination of the pastors and societies to act, the property vested in the four sons mentioned in the will; judgment was accordingly entered for the defendants on the case stated. Seld, not to be error.
    March 13, 1889.
    Error, No. 379, Jan. T. 1889, to C. P. Northampton Co., to review a judgment for defendants on a ease stated in ejectment by John A. Seitz and Henry W. Seitz, two of the heirs-at-law of Frederick Seitz, deceased, against Charles Seitz, Frederick Seitz, Jr., William A. Seitz, and the widow and heirs of George Seitz, deceased, devisees under the will of Frederick Seitz, deceased, at April T. 1889, No. 2. Sterrett and Green, JJ., absent.
    The facts agreed upon by the case stated appear by the opinion of the court below by Albright, P. J., of the 31st judicial district, specially presiding:
    “ The property in controversy in this case consists of six brick houses and lots of ground on Pine street in the city of Easton, devised by Frederick Seitz, Sr., deceased. Said testator died on January 10, 1880. His will and codicils were proved on August 16, 1880. The 9th clause of the will provides: ‘ I give and devise unto the persons who shall be pastors of the ... St. John’s Evangelical Lutheran Church and the German Reformed Church at the time of my death, and to their successors in office forever, my six brick houses and lots whereon they are erected, situated on the north side of Pine alley, in the said borough of Easton, . . . upon the special trust and confidence that they will collect the rents, issues and profits of said houses and lots . . . and will, after the payment of the necessary sums for taxes, insurance and repairs, pay over the balance remaining in their hands annually to the benevolent societies of the two churches in two equal shares, which said societies shall pay out the same during the winter season of each year to all deserving poor, who shall apply to them for relief, without any regard to the sex, color, religion, or nationality of the applicants, the said societies exercising their discretion as to the amounts to be paid to each applicant; but, in any event, the whole amount of said annual income to be paid out and distributed in relief of the poor as aforesaid each year, and if sufficient applicants do not present themselves for relief, then the said societies shall make search for the deserving poor persons until a sufficient number shall be found to exhaust the funds in each year. The foregoing devise and bequest are made upon the following conditions, to wit: 1st. The said pastors shall collect and pay over the said sums, and the said benevolent societies shall disburse the same with strict fidelity to the purposes and objects above stated and without any compensation out of said funds, either to the said pastors or to any member of said benevolent societies. 2d. The said societies shall keep true and correct accounts of the amounts thus received and disbursed each year, which accounts shall be open to the inspection of my said three sons, John A., Henry W. and Edward C., and also to the inspection of any citizen of the borough of Easton who may desire to examine them and if the sand sooieties shall font to amply the funds received as aforesaid, to the relief of the poor, as 1 home above directed, or shall apply the money to any other use or purpose, then and in that event 1 do reroohe and annul the said devise of the sand real estate . . . and I do also, in that event, devise the said six brick houses and lots on Pine alley to my sons, Charles, Frederick, George and William A., their heirs and assigns forever, in equal shares.’ The second codicil provides that ‘ If at any time hereafter it shall, by reason of any change of the law of Pennsylvania, become unlawful to sell at retail malt or brewed liquors in the county of Northampton, or in any of the adjoining counties, or in the borough of Easton, it is my will, and I do order, declare and direct . . . the devise of the six brick houses and lots . . . which I have made by the ninth clause of my will . . . upon the trust and confidence therein stated, shall be and the same are hereby revoked, annulled and made void, and of no effect, and in that event ... I do further order and direct my said executors to sell and dispose of the said six brick houses and lots at public sale, or private sale, at their option, and to divide the proceeds thereof equally amongst all my children and the heirs of those who may then be deceased.’ (An important part of the testator’s property, it seems, was a brewery, which was devised to three of the sons, and which was charged with the payment of an annual sum for the relief of the poor, to be applied the same as the income of said houses, and through the same agencies; it was also to be taken as revoked on the contingency last mentioned.) By a subsequent codicil, the German Lutheran Church, on Fifth street, was substituted for the pastor of St. John’s Lutheran Church. The case stated sets forth that, in 1880, after the probate of the will, the pastors and the benevolent societies of the churches appointed by the will to receive and disburse said property for charity, as aforesaid, refused to accept the said devise and bequest, stating that such refusal was final, and that neither the congregations nor their benevolent societies would further consider the matter. Upon such declination, it seems that it was believed by persons who were heirs-at-law of said Frederick Seitz, deceased, that the 10th section of the Act of April 26, 1855, P. L. 331, became operative as to the property here in question. That section provides that “ no disposition of property for religious, charitable, literary or scientific use shall fail for want of a trustee, or by reason of the objects being indefinite, uncertain or ceasing or depending upon the discretion of a last trustee, but that it shall be the duty of the orphans’ court, or court having equity jurisdiction in the proper county, to supply a trustee, and, by its decrees, to carry into effect the intent of the donor or testator, for which purpose the proceeding shall be instituted, by leave of the attorney general, on the relation of any party willing to become responsible for the costs; that if the object of the trust be not ascertainable, or have ceased to exist, or such disposition be in excess of the annual value permitted by law or in perpetuity, such disposition, so far as exceeding the power of the court to determine the same by the rules of law or equity, shall be taken to have been made subject to be further regulated and disposed of by the Legislature, in manner as nearly in conformity with the intent of the donor or testator and the rules of law against perpetuities as practicable, or otherwise accrue to the public treasury.”
    “A special Act of the Legislature of Pennsylvania was passed on June 20, 1883. It recites the devise of said houses for the purposes above mentioned, said refusal to accept by said pastors and societies, and that no one had applied to administer the trust. The Act declares that the Commonwealth relinquishes her right, title and interest to the six houses in favor of the persons who were the heirs-at-law of Frederick Seitz, Sr., at the time of his decease, with a proviso that it shall not interfere with the right of any party to carry said charity into effeet through the attorney general, and a further proviso that such proceedings be instituted within two years from the passage of the Act.
    “ The case stated sets forth that no proceeding had been instituted in ■ any court to supply a trustee or to carry into effect the intention of the testator since the declination of the pastors and benevolent societies aforesaid, and that the property is now in possession of the defendants in the case stated. It is stipulated that if upon the facts in the case set forth (the provisions of the will are made part thereof) the court should be of the opinion that the title to said real estate is vested in the heirs-at-law of said Frederick Seitz, Sr., then judgment to be entered in favor of John A. and Henry W. Seitz, the plaintiffs, and tbat each have tbe undivided one-sixth of said premises, but if of tbe opinion tbat said real estate belongs to tbe four sons of the testator mentioned in said ninth clause, tbat is, George, Charles, Frederick and William, then judgment to be entered in favor of tbe defendants (who are Charles, Frederick, Wilbam and the widow and heirs of George). In either event, tbe costs to be paid out of tbe rents of said real estate.
    “ If there was an absolute gift of said bouses or tbe income thereof to or for tbe benefit of tbe poor, then tbe refusal to accept, of tbe trustees and almoners of tbe bounty — said pastors and beneficial societies — would not, in itself, affect tbe right to tbe property. Then, in a proceeding provided for by said Act of 1855, a trustee could be appointed or the property adjudged to the public treasury. Possibly, the case would fall within tbe 2d section of tbe Act of June 4, 1819, P. L. 88, relative to void devises, as a devise incapable of taking effect.
    “ But tbe will declares tbat on two contingencies tbe poor shall not be tbe recipients of the testator’s bounty, and expressly states to whom the property shall go in either event. In tbe one case, tbe title is to be in said four sons, in tbe other the proceeds of tbe sale thereof is to be divided among all of testator’s children.
    [“ The provision of the will italicized by me, taken literally, it is contended, contemplates only tbe case of a violation of tbe terms of tbe trust after it bad been assumed. Tbe first part of that condition, tbat is, ‘ if tbe said societies shall fail to apply tbe funds received as aforesaid to the relief of ■ tbe poor, as I have above directed,’ which alone need be considered, it is urged, means a failure to pay to tbe poor after funds for tbat purpose bad been received by tbe societies. Tbe court is of tbe opinion that such a construction would be too narrow and not a recognition of testator’s intention evidenced by his last will. The intent is tbat said four sons should have tbe title to tbe six bouses, upon tbe neglect or refusal of said two societies, at any time, to be tbe faithful almoners of tbe bounty provided by tbe testator, upon tbe failure of tbe charity, that is, tbe funds reaching tbe poor by reason of tbe non-action of tbe beneficial societies.]
    [“ The Commonwealth having no title or interest in the subject matter (it could have had none even if proceedings bad been bad under said Act of 1855, because it was not a case upon which said Act could operate), tbe special Act of 1888 is of no effect.] [Tbe power of tbe Legislature to make a limitation for this case need not be considered. Tbe question does not arise.]
    
      [“ The will of the testator is the law of the case. Under the facts, the title has vested in the defendants.]
    “ The first impression of the case was that it would have to be dismissed because the parties thereto could not make a valid agreement as to the fact of declination of the devise. Neither the pastors, beneficial societies or any representative of either has signed the case stated. But, upon further, consideration, this seemed to be too technical. The parties to the case stated have presented the declination and refusal as a fact. "With the evidence upon which the fact depends, the court has no concern in this case. The parties hereto and all those who may become interested in the title under the successful party, must take the judgment to be a decision of the case presented and nothing more. The court deemed it to be its duty to decide the case submitted.
    “February 15, 1889, upon the case stated, judgment is entered in favor of the defendants for all that certain lot or piece of land, with the buildings thereon, situate on the South side of Pine alley, in the late borough, now city, of Easton, Northampton county, Pennsylvania, bounded on the North by Pine alley, on the South by a ten feet wide private alley, on the East by Green alley and on the West by a ten feet wide private alley, called in the will of Frederick Seitz, deceased, who died seized of the premises, ‘Keller’s shop,’ the costs of this case to be paid as stipulated, that is, out of the rents of said premises.”
    
      The assignments of error specified, 1-4, the portions of the opinion included within brackets, quoting them; and, 5, the action of the court in entering judgment in favor of the defendants on the case stated.
    
      Wm. Fackenthall and B. F. Fackenthall, for plaintiff in error.
    The leading thought in the testator’s mind was that the charity should be dispensed according to his ideas and that the pastors and charitable societies were merely the channel through which the ideas should be carried out. This was the controlling idea in his mind and the person who executed it were clearly a secondary matter. There is a class of cases where the refusal of the trustee to act, or his ceasing to act, by reason of his death or otherwise, operates as an extinguishment of the trust, for the reason that the trust is reposed in him by reason of a special confidence in the person. But when there is such a special confidence in the person it must be apparent from the instrument creating the trust that that is the intention of the testator.
    Where there is a discretionary power given to a trustee, and he accepts the trust and is afterward removed, the discretionary power passes to his successor under the Act of 1836. Wilson v. Pennoch, 27 Pa. 238.
    The will must be liberally construed and the intention of the donor carried into effect if possible, and the construction placed upon it by the court below, that the charity could only be exercised through the pastors and benevolent societies named in the will, is certainly a very narrow one. It places it entirely in their power to defeat the object of the testator. It was to prevent this and to carry into effect the intention of the donor that the Act of April 26,1855, was passed.
    Upon the failure of the pastors and charitable societies to accept the trust contained in the will of Frederick Seitz the elder, it came under the provisions of § 10 of Act of April 26,1855, and, by virtue of the special Act of June 20, 1883, the property passed to the heirs-at-law of Frederick Seitz, the elder.
    
      F. Green, for defendants in error.
    Where there is no competent trustee named, or he dies or resigns, and no provision is made by the testato^for the continuance of the trust, the charity must fail. Zeisweiss v. James, 63 Pa. 469. That is the rule where there is an absolute devise to a charity joined with a personal confidence or discretionary power reposed in the trustee. In this case there is not only discretionary power reposed in the trustees, but also a subsequent disposition in case the trustees failed to act.
    Where the intention of the testator is as clear as it is in this case, the narrow and restricted construction which they put upon the phrase “ failure to apply ” in order to defeat that intention, is. certainly without merit. Besides, it would not be doing violence to the ordinary and accepted meaning of the word to hold that “ failure,” as used by the testator, includes the idea of a “refusal.” Certainly a “ refusal ” to accept this trust is in effect a “ failure to apply.”
    It certainly cannot be claimed that the “ objects of this trust are not ascertainable,” or “ have ceased to exist,” or that the devise is “ in excess of the annual value permitted by law,” or “ in perpetuity.” As these are the only conditions upon which this property could become subject to the control of the Legislature, under the Act of 1855, and as not one of them applies to this case, it follows that the Legislature could not make a valid disposition thereof, since it never vested in the Commonwealth.
    March 25, 1889.
   Per Curiam,

This case is affirmed upon the opinion of the learned judge of the court below.  