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ESTATE FLORENCE FOERDERER TONNER. APPEAL LUTHERAN CHURCH HOLY COMMUNION (05/05/86)

filed: May 5, 1986.

ESTATE OF FLORENCE FOERDERER TONNER. APPEAL OF LUTHERAN CHURCH OF THE HOLY COMMUNION


Appeal from the Decree November 29, 1984 in the Court of Common Pleas of Philadelphia County, Orphans, No. 22 of 1972

COUNSEL

S. Jonathan Emerson, Philadelphia, for appellant.

Wieand, Cercone and Roberts, JJ. Wieand, J., files a dissenting opinion.

Author: Roberts

[ 353 Pa. Super. Page 2]

This appeal concerns two charitable trusts; one involving real property and the other an endowment trust to finance the maintenance and operation of the real property. The question is whether the endowment trust terminates when the trustee of the real property is substituted before the purposes of the trust are carried out. The Philadelphia County Court of Common Pleas ruled that the trust settlor did not intend termination before the purposes of the endowment

[ 353 Pa. Super. Page 3]

    trust were complete; we agree and accordingly affirm the court's decree.

In October, 1967, Florence Foerderer Tonner (Mrs. Tonner) made a gift in three parts to the Lutheran Church of America (LCA). She conveyed by deed a remainder interest in her family's estate, Glen Foerd, located in the Torresdale section of Philadelphia. The deed provided that the property was to be used

Also, Mrs. Tonner established a $500,000 endowment trust for the maintenance of Glen Foerd and gave the LCA the contents of the mansion located on the estate, which included an art collection and a library.

Mrs. Tonner died in 1971. After renovation, the LCA began to use Glen Foerd as a conference center in 1973. By 1981, after financial losses in each year, the LCA determined that it was no longer advisable to use Glen Foerd in furtherance of its church functions. Accordingly, it filed a petition for modification of a charitable trust under 20 Pa.C.S.A. ยง 6110, seeking permission to sell Glen Foerd and to use the proceeds to support spiritual study and the cultural and intellectual life of the church. The Court of Common Pleas denied the petition and substituted the City of Philadelphia as trustee of the property, reasoning that "the Church has evidenced . . . a reluctance to (maintain Glen Foerd) for the benefit of the Torresdale general community." Upon the substitution of the City, the Church of the Holy Communion sought to terminate the $500,000 endowment trust, pursuant to the termination clause in the trust agreement. The Court of Common Pleas rejected this effort as well, ruling that Mrs. Tonner intended the endowment trust to be part of a single gift that included the real

[ 353 Pa. Super. Page 4]

    property and the contents of the estate, which was not to terminate until the alternative purpose of the gift (i.e. using Glen Foerd to benefit the Torresdale general community) was carried out. The subject of this appeal is the decision not to terminate the endowment trust.

Appellant argues that the substitution of trustees triggers the endowment trust's termination ...


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