Opinion
September 24, 1928.
November 26, 1928.
Wills — Charitable bequest — Trust and trustees — Failure by orphans' court to name trustee — Appellate court practice.
Where a testator bequeaths the residue of his estate "to and for the benefit of the Fatherless Children of France," and the orphans' court awards the estate "to the residuary legatees" contemplated by the will, the appellate court, in affirming the decree, will refer the proceeding back to the court for the purpose of supplying a trustee to carry into effect testator's intent, and to take testimony to determine the proper person or association entitled to possession of the fund.
Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appeal, No. 80, March T., 1928, by Crawford County Trust Company and Sara Crawford Dana, executors of W. A. Crawford, deceased, from decree of O. C. Venango Co., O. C. Docket No. 48, Jan. T., 1927, dismissing exceptions to auditor's report, in estate of John K. Crawford, deceased. Affirmed and modified.
Exceptions to report of George S. Criswell, Esq., auditor.
The opinion of the Supreme Court states the facts.
The auditor recommended distribution as follows: "To the residuary legatees under the ninth paragraph of testator's will, as may be hereafter ordered by the court, as indicated in the foregoing opinion of the auditor."
Exceptions to the auditor's report were dismissed by PARKER, P. J., in a decree as follows: "Now, January 23, 1928, the three exceptions filed by Merian Ritchey Jones, Emma C. Curtis, S. Ella Crawford, Mary Smith Pegan and Sarah Crawford Dana, and the twelve exceptions filed by the executors of the estate of W. A. Crawford and H. C. Crawford, are dismissed and the report confirmed. A petition will be entertained by the court to supply a trustee as provided by the Act of 1855 as amended by the Acts of 1885, 1889 and 1895."
Error assigned was order, quoting record.
Frank J. Thomas, of Thomas Thomas, for appellant.
Quincy D. Hastings and W. E. Miller, for appellee.
Argued September 24, 1928.
The ninth clause of decedent's will provides: "All the rest, residue and remainder of my estate, real, personal and mixed, shall be converted into money by my executors and given to and for the benefit of the Fatherless Children of France." The auditor in his report, confirmed by the court below, awarded the residue of the estate, amounting to $63,418.53, to the residuary legatees contemplated under the above quoted paragraph of the will. Exceptions to the conclusion, on behalf of heirs and next of kin of testator, were overruled and this appeal followed.
We agree with the court below that the bequest referred to is valid and that testator's desires, as indicated, should be carried out. To this end, however, the proceeding must be referred back to the court for the purpose of supplying a trustee to carry into effect donor's intent and for the additional purpose of taking testimony and definitely determining between the several claimants, representing "Fatherless Children of France," the proper person or persons or association entitled to possession of the fund, and making such other order as may be deemed necessary to fully carry out testator's intent as expressed in the clause of his will above quoted.
Decree affirmed and it is ordered that the case be referred back to the court below for disposition in accordance with this opinion. Costs to abide final determination of the case.