# Pruner Estate

> Supreme Court of Pennsylvania · June 30, 1960 · 400 Pa. 629

URL: https://www.frixlaw.com/law-library/cases/9761003

## Case

- **Full name:** Pruner Estate
- **Court:** Supreme Court of Pennsylvania
- **Decided:** June 30, 1960
- **Citations:** 400 Pa. 629; 162 A.2d 626; 1960 Pa. LEXIS 385
- **Precedential status:** Published
- **Opinion:** Dissent by Cohen
- **Judges:** Jones, C.J., Bell, Musmanno, Jones, Cohen, Bok and Eagen
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761003

## Opinion text

Dissenting Opinion by
Mr. Justice Cohen:
The parties, the lower courts and the opinion of the majority have approached this case under the erroneous assumption that the gift to the Boroughs of Tyrone and Bellefonte for the purpose of running a home for friendless children was something less than a gift of an absolute, unqualified fee. A careful examination of the codicils in their entirety reveals, however, that the gift to the niece, Sallie M. Hayes, was not some sort of “reversionary interest”, but was in fact an alternative or substitutional gift to her with the condition that it take effect only in the event that the two boroughs, at the death of the testator, could not for any reason accept the gift as given. Because they could and did in fact accept the gift and its attendant responsibilities, the sole condition under which the niece was to take. never occurred, and nothing further is contained in the will to cut down on the absolute fee held by the boroughs. The effect of this is twofold: First, the decree entered below must be vacated, because • neither the heirs of Sallie M. Hayes nor the heirs of the testator have any interest in the property in question. Second, any suit to enforce the charitable trust, or to invoke the operation of the doctrine of cy pres must be brought by the Attorney General.
‘ There can be no question but that the gift to Sallie M. Hayes was to take effect only if the boroughs re *645 fused to take the gifts as given. The complete gift to the boroughs appears in the body of the will itself. It begins with language of general charitable intent, “For the purpose of benefiting humanity and caring for those in need 1 give . . .” and thereafter sets forth the purpose of the trust, describes the properties given, and outlines the restrictions as to the type of children the testator desired to be helped. Nowhere in this paragraph is there any language which even faintly suggests that less than a complete fee was given. The only language in derogation of the complete fee arises in the codicils which immediately follow the testator’s signature to his will, almost as after-thoughts. In their entirety, the codicils provide:
“November 9, 1896
“Should there be any reasons why the Borough of Tyrone and the Borough of Bellefonte cannot carry out the provisions of this will then the property for said Home is bequeathed to my niece, Sallie M. Hayes.
(s) E. J. Pruner
“As I have stated on page 8th of this will should there exist any reasons why the Borough of Tyrone and the Borough of Bellefonte cannot carry out the provisions of this will in relation to the Home for Friendless Children then the property that was bequeathed to the Borough of Tyrone and the Borough of Bellefonte for the purpose of a Home if such becomes invalidated from any cause then said real estate is bequeathed to my niece, Sallie M. Hayes — of Bellefonte, Pa. and all legacies that may revert back to estate of E. J. Pruner are for the benefit of the Home for Friendless Children provided said Borough of Tyrone and Borough of Bellefonte can carry out the provisions of the Will and if they cannot then all legacies that revert back to estate of E. J. Pruner are to be vested in Sallie M. Hayes.
(s) E. J. Pruner
*646 “The houses on Penna. Avenue, Tyrone, Pa. near paper mill I give in trust to Clara R. Moyer she to receive the rents and income from the same during her natural life, she keeping the same in repair and paying the taxes on the same and at the death of Clara R. Moyer the two houses to revert back to estate of E. J. Pruner and to go to the Home for Friendless Children provided they the Corporation of Tyrone and Bellefonte can accept the same and carry out the provisions of this will do otherwise if they cannot the two houses to go to my niece, Sallie M. Hayes of Bellefonte, Pa. (Emphasis supplied).
(s) E. J. Pruner
“Witness signature of E. J. Pruner:
(s) Mary Adair
R. D. Rose”
The italicized portions of the codicils make it clear that the only thing the testator was concerned about was whether the boroughs could responsibly accept the gift. The codicils speak of “reasons” why the boroughs “cannot carry out” the will and cannot “accept the [gift] and carry out the provisions of the will,” and “provided said [boroughs] carry out the provisions of the will.” This language speaks only to the initial ability of the boroughs to take and to perform its function as trustee; it is not at all directed to any concern of the testator with the purpose of the trust failing. In the face of this clear language there must be strong language indicating - the testator was concerned with the failure of the purpose of the trust, so as to indicate he intended that even after the trust would be in operation, Sallie M. Hayes might still take; without strong and clear language I cannot see how the majority can say there is any reversionary interest here conditioned on the failure of the trust purpose.
The only possible argument for a reversionary interest stems from the phrase in the second paragraph *647 of the codicils which states, “. . . should there exist any reason why the [boroughs] cannot carry out the provisions of this will in relation to the Home for Friendless Children then the property that was bequeathed to the [boroughs] for the purpose of a Home if such becomes invalidated for any cause then said real estate is bequeathed absolutely to my niece, Sallie M. Hayes. . . .” The testator’s unfortunate use of the word “such” makes it somewhat ambiguous as to what phrase “if such becomes invalidated from any cause” modifies. The majority must argue that this phrase modifies “the purpose of the home,” but this construction is strained because in the ordinary sense one does not “invalidate” a purpose; in that sense a purpose would be frustrated or unaccomplished. When the language is considered in the general context of the paragraph it is more sensibly understood to mean that the gift to the Home as originally contemplated “if such becomes invalidated for any cause” is to be “bequeathed” (a term generally used to denote present giving and not future giving) in the alternative to my niece. The word “invalidated” contemplates some legal restriction on the two boroughs which might prevent them from initially receiving the gift.
Even if I were to accept the majority’s construction of the will, I cannot agree with its conclusions. The appellant challenges the continuation of the Home in her capacity as an heir of Sallie M. Hayes, whom the appellant claims succeeds to the property of the Home upon failure of the trust. But by holding that the interest of Sallie M. Hayes is invalid because it violates the rule against perpetuities, the Majority has necessarily decided that the suit was improperly brought, since appellant in her capacity as an heir of Sallie M. Hayes has no interest whatsoever in the will. Thus the appeal should at this point have been dismissed for want of a proper plaintiff and the decree vacated. *648 There should have been no further inquiry into the case. If the heirs of the testator wish to come into court and claim their “reversionary interest,” they may do so. But there is no need for us to order the court to go out and bring them in; nor is there any need to decide at this juncture whether the trust purpose has in fact failed. It is the function of the Attorney General as the guardian of the enforcement of charitable trusts to bring such a suit. It is not a function of this Court on its own motion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761003. Public record. Not legal advice.