No. 1246 Philadelphia, 1981, Appeal from the decree dated April 22, 1981, Court of Common Pleas, Orphans' Court Division, Philadelphia County, at No. 3775 October Term 1929.
Robert L. Freedman, Philadelphia, for appellant.
Alfred J. Tagliaferri, Philadelphia, for The Right Worshipful Grand Lodge, et al., participating party.
Lawrence Barth, Deputy Attorney General, Philadelphia, for Commonwealth, participating party.
Mary Gleeson Lawler, Philadelphia, for Provident Nat. Bank, participating party.
Cavanaugh, Johnson and Montemuro, JJ.
[ 301 Pa. Super. Page 301]
This is an appeal from the award by the lower court of a fund of two hundred thousand dollars to The Right Worshipful Grand Lodge of Free and Accepted Masons of Pennsylvania [hereinafter Grand Lodge] under the will of Harry T. Porter [hereinafter testator].
Testator died in 1929. In his will, executed in 1925, he created a trust for his wife as life beneficiary. After her death, certain gifts were to be made to charities from the trust and the income from the trust was to be shared among the testator's niece and nephews for their lives, with a power of appointment in each of them. Clause 11(q) of the will then provided:
(q) Upon the expiration of said trust, and out of the balance remaining in the possession of my said executors and trustees, to pay unto the Right Worshipful Grand Lodge of Free and Accepted Masons of Pennsylvania, the sum of two hundred thousand dollars, to be by it used in the erection and construction of a suitable building upon
[ 301 Pa. Super. Page 302]
its grounds at Elizabethtown, Pennsylvania, as a Home for Boys or Girls, whichever, in the judgment of said Grand Lodge or its Committee on Homes, may be more needed or desirable. Said building shall be of the same general style and character in keeping with the buildings now erected or which may then be erected on said grounds, but before any work shall be done thereon, or the moneys be paid to said Grand Lodge therefor, the plans and specifications for said building shall be first submitted to and receive the approval of my said executors and trustees or their successors in office. When completed said building shall be known as The Harry T. Porter Memorial Home for Boys or Girls, as the case may be, and a suitable tablet so inscribed shall be placed thereon.
Upon the death in 1979 of the last income beneficiary of the trust, the trust terminated. The surviving trustee filed its fourth and final account, and the Grand Lodge filed a petition requesting a modification of the trust, in which petition the Attorney General, as parens patriae for charities, joined. The reasons for requesting the modification were that the sum of $200,000.00 in 1979 was inadequate to build a home as described by the testator in 1925, and further that the number of children seeking admission to the Masonic Home in Elizabethtown had declined, and that such children as were there were adequately housed in the already existing buildings. The Grand Lodge accordingly proposed that the fund of $200,000.00 be awarded to the trustees of the Grand Lodge and that the income therefrom be used for maintenance of the existing buildings and for the benefit of the children housed therein, and for youth programs conducted there by the Elizabethtown Freemasons. The fund would be named after the testator and an appropriate plaque installed.
After a hearing the auditing judge decreed that under the doctrine of cy pres the will should be modified and the $200,000.00 awarded to the Grand Lodge.*fn1 Appellant, who is the only one of five individual residuary beneficiaries to
[ 301 Pa. Super. Page 303]
challenge this modification -- the others all supporting the position of the Grand Lodge -- filed exceptions to the decree which were dismissed by the Orphan's Court en banc.*fn2
On appeal he asserts first that the lower court erred in finding a general charitable intent, and that therefore the cy pres doctrine does not apply, and second that a reverter clause in the will shows an intent that failed bequests, which appellant ...