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May 26, 1952


Appeal, No. 107, Jan. T., 1952, from order of Court of Common Pleas of Northampton County, Nov. T., 1950, No. 3, in re Property of Bangor Park Association. Order affirmed in part and vacated in part.


Edmund P. Turtzo, for appellants.

Alfred M. Nittle, Sullivan Cistone and James F. Pritchard, with them, J. Lawrence Davis, for appellees.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 370 Pa. Page 444]


This appeal is by disappointed prospective purchasers of real estate, whose contract, unfortunately for them, was made with persons possessing no title. The facts are recited at length in our opinion in Abel et al. v. Girard Trust Company et al., 365 Pa. 34, 73 A.2d 682. The action was in equity in the nature of quia timet. Trustees of a closed bank secured a title to real estate by sheriff's deed following an attachment execution upon a judgment obtained in a suit against a corporation upon two of its promissory notes. After securing such title the trustees agreed to sell the real estate in fee simple to the present appellants. The title examination disclosed a question whether the trustees could convey a valid title in fee simple, the solution of which depended upon the effect of the words constituting the habendum clause in the deed to the judgment debtor. The trustees filed their complaint, in quia timet, as above stated. All interested parties were joined. The trustees alleged that the Bangor Park Association, the judgment debtor, had acquired title in fee, with power to convey free of trust restrictions, and hence under the sheriff's deed title passed to the trustees in fee simple, which they were able to transfer to the present appellants. The grantors of such judgment debtor, the Brown Estate, on the contrary, contended that their conveyance created a base fee and because of non-user in accordance with the terms of the grant, a reversion to the grantors resulted. This Court decided that the fee was not base but was absolute and there was no reverter. We also held (which

[ 370 Pa. Page 445]

    was a necessary consideration in a quia timet proceeding) that such transfer was made to the Bangor Park Association under a valid charitable trust. Since this decision we have re-affirmed both principles. See Hoffman v. Pittsburgh et al., 365 Pa. 386, 75 A.2d 649, as to reverter and Loechel v. Columbia Borough School District, 369 Pa. 132, 85 A.2d 81, as to creation of charitable trusts.We decided that it was immaterial that the trustee was no longer functioning or that the land had ceased to be used for the charitable purpose named in the deed, viz.: "For the exclusive use by the grantee hereof, its successors and assigns, of said premises, as and for a public park, for the use and benefit of the inhabitants of the Borough of Bangor aforesaid, and to and for no other use or purpose whatsoever."

We said, p. 40 et seq.: "The familiar rule is that a charitable trust will not fall for want of a trustee: Thompson's Estate, 282 Pa. 30, 35, 127 A. 446; Jordan's Estate, 329 Pa. 427, 197 A. 150; Restatement of Trusts, section 353(3); 3 Scott on Trusts, sections 397, 397.3, page 2066 et seq.

"While no claim has been presented on behalf of the inhabitants of the Borough of Bangor, the attention of the proper officials of that borough, and of the Attorney General, must be drawn to their duty to enforce a public charitable trust: Williams Estate, 353 Pa. 638, 46 A.2d 237; Restatement, Trusts, section 391; Estates Act of 1947, April 24, P.L. 100, section 10, 20 PS 301.10. It is presently unnecessary to consider whether the original purpose of the trust can be carried out, in which case a new trustee would be appointed, or whether resort must be had to the application of the doctrine of cy pres, in which event the property would be sold and the proceeds awarded: Mears's Estate, 299 Pa. 217, 149 A. 157; Hoff's Estate, 315 Pa. 286, 172 A. 645."

[ 370 Pa. Page 446]

The present record discloses the disregard of our decision. As the trustees of the closed bank possess no title to the real estate, they are not parties in interest. They do not have the status to petition for the appointment of a substituted trustee, and for the sale of the premises. Obviously, therefore, the court could not approve the proposed sale upon petition of parties without interest, even though real estate experts may have testified at the hearing that the $5,000 consideration agreed upon was a full and fair price. But in addition an answer was filed by one Capozzolo offering $6,000, a thousand dollars more than has been offered by appellants. Another answer was filed by the Burgess of Bangor Borough, objecting to the sale at $5,000 and requesting the court to appoint a substituted trustee, which has not yet been done. Three individuals, Horn, Wagner and Remagon answered that the petitioners had resigned as trustees for the closed bank, and that they had been appointed in their ...

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