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BLACK ESTATE. (01/18/60)

January 18, 1960

BLACK ESTATE.


Appeal, No. 162, March T., 1959, from decree of Orphans' Court of Venango County, Aug. T., 1957, No. 59, in case of estate of Myrta E. Black, deceased. Decree reversed; reargument refused March 7, 1960. Audit of account. Adjudication filed sustaining exceptions to auditor's report and decree entered, opinion by MCCRACKEN, P.J.

COUNSEL

Philip R. Hepburn, with him Norris, Lex, Hart & Ross, for appellant.

James M. Houston, with him Donald L. Ewart, Robert T. Grannis, and Rose, Houston, Cooper and Schmidt, and Irwin and Grannis, for appellee.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bell

[ 398 Pa. Page 391]

OPINION BY MR. JUSTICE BELL

Myrta E. Black, a resident of Franklin City, Pennsylvania, died testate on June 3, 1956. In a holographic codicil dated 7/29/37 to her last will of February 23, 1923, she provided as follows: "Ex-Bank & Trust Co. to be executor. Balance - to go to Board of Christian Education First Presbyterian Church - N.Y."

[ 398 Pa. Page 392]

The Exchange Bank and Trust Company, Executor, and the following claimants appeared at a hearing before an auditor appointed by the Orphans' Court: The executor of the will of Ira E. Black, a cousin, and of Wilda Black Kieffer, a cousin; (the so-called) First Presbyterian Church of New York; The Board of Christian Education of the Presbyterian Church in the United States of America. It is conceded by all that the description of the residuary legatee did not fit exactly any claimant.

It is crystal clear that testatrix intended and willed that her estate should go to some Presbyterian Church in New York or a Board thereof or connected therewith. Where a testamentary intent to make a gift to a religious, charitable, literary or scientific use is clear, the gift will not be allowed to fail by reason of the object or the beneficiary being indefinite or uncertain: Glase Estate, 384 Pa. 118, 119 A.2d 294; Women's Homoeopathic Hospital of Philadelphia Case, 393 Pa. 313, 142 A.2d 292, if the intended object or beneficiary can be ascertained with reasonable certainty.

In Women's Homoeopathic Hospital of Philadelphia Case, 393 Pa., supra, the Court said (page 317): "In practical effect, application of the cy pres doctrine results in an approximation: City of Philadelphia v. Heirs of Girard, supra. In applying the doctrine the court exercises its discretion in such a manner as to award the fund to an eleemosynary institution whose services will most nearly approximate the intention of the donor: Connors v. Ahearn, 342 Pa. 5, 7, 19 A.2d 388."

In applying the doctrine of cy pres, the question narrows down to which Presbyterian Church or Board or Committee the decedent intended to be the recipient of her residuary estate. The auditor and the lower ...


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