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.
Argued September 24, 1928.
PER CURIAM, November 26, 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.