Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Montgomery County, No. 43,839, in re estate of Horace C. Coleman, deceased.
David Cohen, Harry Lore, and Cohen and Lore, for appellant.
Richard J. Orloski, Deputy Attorney General, with him Catherine G. Barone, Assistant Attorney General, W. William Anderson, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellant.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones concurs in the result. Mr. Justice Eagen dissents.
The single, narrow issue presented by this appeal*fn1 is whether a settlor may impose upon our courts the task of monitoring his wish that no person serve as an individual trustee of an irrevocable inter vivos charitable trust, if that person is married to a non-Protestant. We conclude that settlor's partiality for the religious persuasion of the trustees's spouses is irrelevant both to the competency of a trustee and to the proper administration of the trust, and is therefore unenforceable.
Horace C. Coleman (settlor) on December 26, 1935, created the Coleman Foundation, an irrevocable inter vivos trust. The net income of the Foundation was to be distributed by the trustees to charities. Settlor died in 1936.
Settlor designated as trustees his son, Horace C. Coleman, Jr.; his secretary, Eleanor Klemm; a friend, Rev. Jesse M. Corum, Jr.; and a corporate fiduciary.*fn2 In 1955, Reverend Corum resigned and settlor's other son, John M. Coleman, became a trustee.
Settlor also described who could become or remain a trustee. The provision engendering the instant controversy states: "No person shall be appointed a Trustee of this trust unless he, and his wife, if he is a married man, are both of the Protestant faith; should a
person of the Protestant faith be appointed a Trustee and subsequently change his faith, or should he marry one who is not a Protestant, or should he marry one who is a Protestant and she subsequently change her faith, then he shall automatically resign his trusteeship."
This proceeding began on May 5, 1971, with the filing of the second account of the Coleman Foundation. The reason for its filing was the appointment as trustee of Anne Coleman Mamana, a granddaughter of settlor. A petition seeking court approval of her appointment was filed by John M. Coleman, her father, in his capacity as chairman of the board of trustees and in his own behalf as trustee. The petition recites that Anne Coleman Mamana "is married to John P. Mamana, who is Roman Catholic," and further that she has been appointed trustee by the board,*fn3 "subject to the approval of the court."
Some time later, Horace C. Coleman, Jr., petitioned the court to be discharged from further duties as trustee. His reason for resigning was that "[h]e did on Monday, July 19, 1971 marry a person who is a Catholic." The petition stated that he had already submitted his resignation to the board, ...