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PRUNER ESTATE. (11/18/57)


November 18, 1957


Appeal, No. 156, Jan. T., 1957, from order of Orphans' Court of Centre County, No. 7553, in case of Estate of Edmund J. Pruner, deceased. Decree vacated.


John G. Love, with him John Russell, Jr., Love & Wilkinson and Morgan, Lewis & Bockius, for appellant.

Musser W. Gettig, with him B. C. Jones, for appellees.

Before Jones, C.j., Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 390 Pa. Page 530]


In his last will and testament Edmund J. Pruner, of Centre County, Pennsylvania, devised real estate in trust to the boroughs of Tyrone and Bellefonte to establish a home for friendless children from the boroughs who were without parents. Whenever an excess of revenue became available for the support of such children, then qualified children from the City of Altoona were also to be admitted to the home. In the event that the boroughs for any reason could not carry out the provisions of the will the settlor provided that the property was to revert to his niece. Both boroughs by ordinances accepted the provisions of Pruner's will in 1905 and established a suitable home. In 1954, (for the third time),*fn1 the heirs of Pruner's niece instituted proceedings in the Orphans' Court of Centre County to terminate the trust. Notice of the action was served only upon the two boroughs. The heirs contended that the purposes of the trust could not be carried out and introduced evidence that no children had been cared for in the home during the past seven years. The orphans' court held that the trust could be terminated only upon a showing that there were no children from the area designated by the settlor who could qualify for the home either at present or at any time in the future. Hence, the court concluded that even though there were no children currently in the home the petitioners' evidence was insufficient

[ 390 Pa. Page 531]

    to prove the failure of the trust. From the order of the court refusing the prayers of the petitioners the present appeal has been taken.

In Curry Appeal, 390 Pa. 105, 108, 135 A.2d 497 (1957), we reaffirmed the principle that unless a court has all parties in interest before it, by appearance or service of process, it cannot proceed to a binding decree. In this proceeding we are satisfied that no relief could have been granted the appellant because an indispensable party - the public - had not been given notice and brought upon the record through its representative and spokesman, the attorney general.*fn2

The beneficiary of charitable trusts is the general public to whom the social and economic advantages of the trusts accrue.*fn3 But because the public is the object of the settlors' benefactions, private parties have insufficient financial interest in charitable trusts to oversee their enforcement.*fn4 Consequently, the Commonwealth

[ 390 Pa. Page 532]

    itself must perform this function if charitable trusts are to be properly supervised. The responsibility for public supervision traditionally has been delegated to the attorney general to be performed as an exercise of his parens patriae powers. See Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 23, 188 Atl. 524 (1936). These are the ancient powers of guardianship over persons under disability and of protectorship of the public interest which originally were held by the Crown of England as the "father of the country," 3 Blackstone, Commentaries 47; Fontain v. Ravenel, 58 U.S. (17 How.) 369 (1855), and which as part of the common law devolved upon the states and federal government. Fontain v. Ravenel, supra. Specifically, these powers permitted the sovereign, wherever necessary, to see to the proper establishment of charities through his officer, the attorney general, and to exercise supervisory jurisdiction over all charitable trusts. 3 Blackstone, Commentaries. 427.

Our legislature recognized the historic interest of the attorney general in charitable trusts, as well as the benefits to be gained from his appearance in litigation affecting them, by requiring that he be given notice of proceedings for the application of cy pres: Act of April 24, 1947, P.L. 100, § 10, 20 P.S. § 301.10. This enactment did not enlarge the powers of the attorney general in cy pres proceedings, but rather statutorily affirmed his responsibility in such actions. For, not only in actions involving the application of cy pres but in every proceeding which affects a charitable trust, whether the action concerns invalidation, administration, termination or enforcement, the attorney general must be made a party of record because the public as

[ 390 Pa. Page 533]

    the real party in interest in the trust is otherwise not properly represented.*fn5

This fundamental principle that the attorney general is an indispensable party in a proceeding such as the one before us should have compelled the orphans' court to refuse the present petition without considering the merits thereof, and any order granting relief to the petitioners would have been void.*fn6

[ 390 Pa. Page 534]

Not only do the reversionary devisees who seek to invoke a forfeiture clause have the burden of proving by clear evidence a failure of the trust purpose,*fn7 they also have the duty to comply with all requisite procedures. Had the present petitioners done so in the previous proceedings by making the attorney general a party thereto so that he might have exercised his supervisory powers, appropriate measures might have been taken to have activated this charitable trust and so have restored to the public Pruner's beneficence.*fn7


Decree vacated and record remanded with a procedendo. Notice to be given to the attorney general and to the City of Altoona, and leave to be given all parties to introduce evidence. Costs to abide the event.

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