Grandom's Estate , 6 Watts & Serg. 537 ( 1844 )

The opinion of the court was delivered by

Gibson, C. J.

The office of these trustees involved the exercise strictly of a mixture of both trust and power, of which the outline was not merely sketched by the testator but partly filled up. It is unimportant that the list, as he called it, by which this had been done, was no part of his will, but a collection of hints to assist the trustees in the exercise of their discretion, without controlling it: and that it was not admitted to probate as testamentary. A chancellor would not the less regard it in his paramount supervision of the exercise of such a discretion, to guard it from abuse. There is no discretion so absolute as to bid defiance to the inspection of the tribunals. But to induce a chancellor to control the exercise of a power like the present, would require proof of an application of the charity to purposes inconsistent with the testator’s design; and what proof of it have we here ? He desired the trustees to give the money in contest to a benevolent society, if any existed, “ to alleviate (the sufferings of) the most prudent of the poor, but not the intemperate, in procuring fuel, clothing, and other necessaries which such persons want in winter.” The objects set forth in the charter of the society which claims the stewardship of this charity, are “ the promotion of the temperance cause by the diffusion of temperance knowledge, the circulation of the pledge of total abstinence from all intoxicating liquors, and the dispensation of the charity of the association to the suffering poor of Philadelphia and its districts, of good moral character, who do not use intoxicating liquors as a beverage.” These are evidently more than what the testator had in view, which was only to provide for those who suffer in winter from ‘hunger and cold; for the dispensation of charity by the society is not only general, but subordinate to its purpose of winning the poor from drunkenness to sobriety. Depositions were indeed read to show that its principal object, at the death of the testator, was elemosynary, and that the inculcation of temperance was auxiliary to it. Still it was an association of a mixed character, whose functions were not restricted to the specific objects of the testator ; and the question is not how it would have administered his bounty as it was constructed then, but how it would administer it as it is constructed now. The witnesses, however, are not borne out by the paper referred to by one of them as containing the fundamental objects of the association before it was incorporated ; for it sets out with an invitation to “ people of every denomination, who are willing to walk under the temperance flag, to join the association.” Now to deprive the trustees of a discretionary power given to them without bound or limit, would require the society to show that it answers the testator’s description in every point and particular. But it does not. Its objects are double and its alms are general. Who can say that it would not apply the testator’s bounty to its own objects in preference to the object of the testator himself? For the cause of temperance and the employment of the poor, he had provided in another part of his instructions; and to apply this money to the purposes of the society, would make him do more for those objects than he intended. The Philadelphia Temperance and Benevolent Association, therefore, is not entitled, and the pretensions of no other claimant are before us. But the trustees had undoubted power to vest the title in a corporation created for the purpose, and the Grandom Institute, therefore, is the legitimate trustee.

Decree of the Orphans’ Court affirmed.