Appeal from decree of Orphans' Court of Chester County, Audit No. 115, 1967, No. 3, 1964 Term, in re inter vivos trust of Margaret L. Bodine, Settlor under deed of trust dated June 20, 1958.
Morris Wolf, with him William H. Rivoir, Jr., Edward M. Glickman, and Gawthrop and Greenwood, and Wolf, Block, Schorr and Solis-Cohen, for appellant.
Alan Reeve Hunt, with him Duane, Morris & Heckscher, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen.
This is an appeal by the Trustees of the University of Pennsylvania from a decree awarding the income of Miss Bodine's trust to the Trustees of Kenyon College.
The pertinent terms and provisions of the inter vivos deed of trust are as follows: "Upon the death of Settlor, Trustee shall (i) set apart out of the principal as an enduring memorial to Settlor's dear friend, Nina F. Lewis, the sum of twenty-five thousand ($25,000) dollars, and shall hold the same in perpetual trust, to pay the entire net income thereon unto the Woman's Hospital of Philadelphia, now located at Preston and Parrish Streets, Philadelphia, to be used by said hospital in its discretion for the purposes of either or both its out-patient and social service work . . . If at any time an event occurs which would necessitate the application
of the doctrine of cy pres to this trust fund in the absence of a gift over then upon the occurrence of such event, Trustee shall pay the entire net income to the Trustees of Kenyon College situate at Gambier, Ohio, for the general purposes of said college." (Emphasis supplied.)
Since the gift-over to Kenyon College will only arise when an event occurs necessitating the application of the doctrine of cy pres, the sole question before our Court is whether the subsequent merger of Woman's Hospital with the University Hospital was an event which would necessitate cy pres.
The lower court, in its adjudication, concluded "that by reason of the discontinuance of the Woman's Hospital as a separate corporate entity the income [of the trust] should be awarded to the Trustees of Kenyon College." Implicit in its determination is the adoption of the principle that a merger per se gives rise to the application of the doctrine of cy pres since in the absence of such an event under the plain terms of the deed of trust, the Trustees of Kenyon College would not be entitled to the income of the trust.
Under the Estates Act of 1947, the legislature has prescribed the necessary circumstances, which, if present, would allow the courts in their discretion to apply the doctrine of cy pres. The Act of 1947, § 10 provides in pertinent part as follows: "Except as otherwise provided by the conveyor, if the charitable purpose for which an interest shall be conveyed shall be or become indefinite or impossible or impractical of fulfillment, . . . the court may, on application of the trustee or of any interested person or of the Attorney General of the Commonwealth, after proof of notice to the Attorney General of the Commonwealth when he is not the ...