7 to recover because the trust had been abandoned by the donee. The meeting had sold the property, and the vendee refused to take, because of a defect in the title. It seems, although not so stated in the report, that the proceedings were for the purpose of settling the doubt raised by the vendee. Judgment was given for the defendant. The sale of the land and use of the proceeds for even another meeting-house would clearly involve a change in the specified object of the donor. This case is a recognition, although no reference is made in the opinion, of the doctrine of cy pres as against a resulting trust. The language of Lewis, J., is significant. The learned judge said: "it seems unreasonable to suppose that, a devisor ever means that his heirs shall get back the land in such cases, except when he says so; or that, amidst the rapidly changing opinions of society, he means that his opinions shall be imbibed by others just as he left them, and shall forever withstand the changes necessarily incident to the progress of society; or that he means that no change in the number, circumstances, and habits of the people, shall ever justify any sort of conversion of the gift. It would seem contrary to public policy to favor a construction that would give to a man, who died a hundred or a thousand years ago, the control of land that ought to be controlled by the present generation. Such an intention ought to be expressed, not implied." We see the doctrine of cy pres beginning to creep in, although not so recognized by the court. Newell's Appeal 8 768. In Newell's Appeal there was a bequest of $2,500 to the Theological Seminary at Princeton, N. J., upon trusts which were attacked as insensible, unlawful and void. A controversy arose on the adjudication of the account of the executors of the will, and the fund was claimed by the Seminary and residuary legatees. The Supreme Court, Woodward, J., declined to pass on the question of the validity of the trust, saying that the directions were subsequent to the vesting of the legacy, and consequently the Seminary was entitled to the fund, and that if the limitations were void, the legacy would be vested in the Seminary clear of the conditions, and the question whether she was bound to perform conditions subse8 24 Pa. 197 (1855). 7 17 Pa. 99. quent should be determined when she was sued for forfeiture. If, however, the trust was void, there would be a resulting trust, and, as all parties were in court, it seems that there was jurisdiction to determine the matter. The decree awarding to the Seminary amounts to an application of the doctrine of cy pres. Legislation in Pennsylvania Affecting the Doctrine of Cy Pres 769. The Act of May 23, 1895,9 provides that no disposition of property for any religious, charitable, literary or scientific use shall fail by reason of the objects ceasing or being given in excess of the annual value limited in the act; but it shall be the duty of the proper court to carry into effect the intention so far as the same can be ascertained, and carried into effect consistently with law or equity, with the further provision that if the objects are not ascertainable or have ceased to exist, or are in excess of the annual value limited by law, such disposition, so far as exceeding the power of the courts to determine the same by rules of law or equity, shall be taken to have been made subject to the disposition of the legislature in manner as nearly conformable with the intent of the settlor as practicable; or otherwise, to accrue to the public treasury for public use.10 The Act of May 26, 1876,1 provides as follows: "Whenever any estate, real or personal, shall be vested in trustees, by gift or devise, for the purpose of applying the income arising therefrom for the benefit, support or maintenance of a designated class of persons, which said class of persons shall become extinct, so that there shall be no one to derive any benefit from the said income, if there be no heirs to claim said fund, it shall and may be lawful for the said trustee or trustees having charge of the said estate, to apply, by petition, to the court of common pleas of the county in which they, or a majority of them reside, for authority to apply the said income to the benefit, support or maintenance of some other class or classes of persons similarly situated, as near as may be, to those for whose benefit, support or maintenance the trust was originally created; and thereupon the said court of common pleas, after proper examination into the statements set forth in the petition, and being satisfied 'P. L. 114, re-enacting the 10th Sec. of the Act of April 26, 1855, P. L. 328. 10 For the text of the act, see $735, ante. 1 P. L. 211, $1. as to the correctness of the same, may have power to order and decree that thenceforth the trustees shall apply the said income to the benefit, support or maintenance of the new class or classes of persons mentioned in the said petition.' This act has only been referred to twice since its passage.2 The language of these acts seems to furnish ample legislative sanction for the courts to apply the doctrine of cy pres. In Re Petition of Trustees of Lower Dublin Academy 770. In re Petition of Trustees of the Lower Dublin Academy 3 there was a trust of a lot of ground for a school under an agreement by the heirs of the decedent. On petition of the trustees the court directed the appropriation of the income, there being no further necessity for a school owing to the establishment of a public school system, to the support of a library in the same vicinity. In the above case the court referred to a previous case, apparently not reported, where they directed the distribution of the proceeds of the sale of land held in trust for a Protestant school, among the Protestant churches of the neighborhood. This is a clear case of the application of the doctrine of cy pres. Commonwealth v. Pauline Home 4 771. In Commonwealth v. Pauline Home, a charitable corporation for the maintenance of a home for poor children in the Twenty-second Ward, was dissolved. The court awarded the proceeds of the sale of the trust property to the Children's Aid Society, in trust, for (1) the care of poor children not otherwise properly provided for, within the Twenty-second Ward of Philadelphia, who otherwise would presumably be sent to the almshouse; (2) to the care of such children from Philadelphia County; (3) to the care of such children from Pennsylvania, giving preference to those living nearest Philadelphia County. The Master, to whom the case was referred in the court below, and whose opinion was affirmed on appeal to the Supreme Court, placed the decision on the 10th Section of the Act of April 26, 1855,5 and the application of the doc 2 By Noyes, P. J., in the court below in Trim's Est., 168 Pa. 395 at 397 (1895); Ashman, J., in Houston's Est., 28 Pa. C. C. 285 at 286 (1903), s. c. 12 D. R. 121 19 Montg. 151. 38 W. N. C. 564 (1880). trine of cy pres. The Supreme Court declined to pass on the question of the weight to be given the wishes of the contributors, and in a very short and unsatisfactory per curiam opinion, said that the matter was very much in the discretion of the court below, and that they would not reverse unless for clear abuse. Smith's Estate в 772. In Smith's Estate the court below said, by way of dictum, that where there was a trust to erect a playground and memorial arch in a public park, the court could apply the gift cy pres if the assent of the public authorities could not be had. Cushman v. The Church 773. In Cushman v. The Church the plaintiff, with others, contributed money to build a memorial church to certain persons upon a certain piece of ground. A church society was formed and incorporated, and the church built soon afterward. The church authorities then proposed to build a new church at another place, as a memorial to another person, and tear down the old one which had been built. The plaintiff filed a bill in equity to restrain the trustees in their action, and the demurrer of the church to the bill was overruled. The court intimated that the trustees might, on application to the court, obtain leave to sell the church property and invest in a new one under the same trust. The bill was remitted for further proceedings, and the preliminary injunction reinstated. There was no occasion for the application of the doctrine of cy pres. The action of the church authorities in attempting to divert the property to another use was very properly restrained. Harman v. Romberger 8 774. In Harman v. Romberger the heirs of a testatrix, who died in 1900, brought ejectment against the trustees under the will, claiming that a charitable use was declared which ceased to exist, and that, therefore, the property should go to the heirs at law. Curiously enough, both court and counsel overlooked the Act of 1895, and discussed the case as if turning on the Act of 1885. The court decided that there could 6181 Pa. 109 (1897). 7 162 Pa. 280 (1894). 8 34 Pa. C. C. 593 (1908). 9 See $735, ante. be no recovery, as the act only referred to the case where the charity ceased to exist at the death of the testatrix; that as there was no clause of re-entry in the deed, the heirs could not get the title. It appeared that the charitable use existed at the death of the testatrix.10 Who May Invoke the Application of the Doctrine of Cy Pres 775. It is provided by the Act of May 23, 1895," that proceedings may be instituted under the act by leave of the attorney-general of the commonwealth, on the relation of any institution, association or corporation not for profit, or individual desirous of carrying the charitable trust into effect.12 The law on this point seems very clear, and requires no further comment. Doctrine in Pennsylvania Probably Applies to Trusts Created by Deed 776. The doctrine of cy pres applied only to gifts by will.1 It seems, however, if the doctrine of cy pres was established in Pennsylvania by the Act of May 23, 1895,2 that this distinction no longer exists, as that act applies equally to gifts by deed and will. There have been a number of cases since the Act of 1855 in Pennsylvania, in which the cy pres doctrine has been applied to gifts by deed, without the question being raised. It may therefore be said that the distinction no longer exists in Pennsylvania law. 3 Pennsylvania Law as to Doctrine of Cy Pres 777. The provisions of the acts relating to cy pres 10 See also dictum of Hawkins, P. J., in Daly's Est., 208 Pa. 58 at 66 (1904). 11 P. L. 114, re-enacting §10 of the Act of April 26, 1855, P. L. 328. 12 For a case of such proceedings, see Commonwealth v. Pauline Home, 141 Pa. 537 (1891). For a case of a proceeding by the donor of the trust in the case of a deed, see Wright v. Trust Co., apparently not reported, C. P. No. 4, Phila. County, Dec. Term, 1895, No. 1242, in equity. Case of a proceeding by the trustees, see In re Petition of the Trustees of Lower Dublin Academy, 8 W. N. C. 564 (1880) 1 In Methodist Church v. Remington, 1 Watts, 219 (1832), Gibson, C. J., at 227 discussed the cy pres doctrine as applicable to a trust created by deed inter vivos. 2 P. L. 114, re-enacting §10, Act of April 26, 1855, P. L. 328. 3 Commonwealth v. Pauline Home, 141 Pa. 537 (1891); Petition of the Trustees of Lower Dublin Academy, 8 W. N. C. 564 (1880); Wright v. The Trust Co., apparently not reported, C. P. 4, Phila. County, Dec. Term, 1895, No. 1242. 4 See §769, ante. |