IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Estate of Stephen Girard, Deceased :
Trust for Girard College :
: No. 2254 C.D. 2014
Appeal of: Board of Directors of City : Argued: October 7, 2015
Trusts, Trustee of the Trust under Will :
of Stephen Girard for Girard College :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION
BY JUDGE SIMPSON FILED: January 21, 2016
This appeal from a final decree of the Orphans’ Court Division of the
Court of Common Pleas of Philadelphia County (Orphans’ Court)3 concerns
proposed modifications to certain operations of Girard College, a primary and
secondary school for disadvantaged youth operated by a charitable trust under the
1830’s Will of Stephen Girard. After the Orphans’ Court declined to approve the
proposed suspension of residential programs and high school grades at the College,
the City of Philadelphia, acting through the Board of Directors of City Trusts
1
This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
3
The Honorable Joseph D. O’Keefe, then Administrative Judge of the Orphan’s Court
(now retired) presided.
(Board), Trustee under Girard’s Will, appealed to this Court.4 After careful
consideration, we discern no basis to disturb the thoughtful judgment of the
Orphans’ Court; therefore, we affirm.
I. Background
A. Will
By Will and codicils dated 1830 and 1831, Girard left the majority of
his considerable estate to charity and for the betterment of the City of Philadelphia
(City). He ordered the creation of the College, a boarding school to be located in
the City, writing (with emphasis added):
And, whereas I have been for a long time impressed with
the importance of educating the poor, and of placing
them, by the early cultivation of their minds and the
development of their moral principles, above the many
temptations to which, through poverty and ignorance,
they are exposed; and I am particularly desirous to
provide for such a number of poor male white orphan
children, as can be trained in one institution, a better
education, as well as a more comfortable maintenance,
than they usually receive from the application of public
funds ….
Will of Steven Girard, Ex. A to Pet. to Modify Charitable Trust for the Benefit of
Girard College Pursuant to 20 Pa. C.S. §7740.3 (Will), Clause XX, at 10;
Reproduced Record (R.R.) at 155a. Among other provisions, Girard directed that
the College “shall be sufficiently spacious for the residence and accommodation of
at least three hundred scholars ….” Will, Clause XXI, at 11; R.R. at 156a
4
The Board is a Commonwealth party. See City of Phila. v. Cumberland Cnty. Bd. of
Assessment Appeals, 81 A.3d 24 (Pa. 2013). Accordingly, this Court has jurisdiction pursuant to
42 Pa. C.S. §762(a)(1)(ii).
2
(emphasis added). The Will further requires that the students of the College be
“fed … clothed … and lodged in a plain but safe manner ….” Id., Clause XXI, ¶7
at 17; R.R. at 162a (emphasis added).
By statute, the Pennsylvania legislature created the Board in 1869. 53
P.S. §16365.5 The Board administers trusts left to the City for charitable purposes,
including the Will and its provisions for Girard College.
B. Petition
In 2013, the Board filed a Petition to Modify Charitable Trust for the
Benefit of Girard College Pursuant to 20 Pa. C.S. §7740.3 (Petition). The Petition
alleged a decline in the financial state of the Trust, specifically a decrease in the
market value of the Residuary Fund, a decline in rental income and a dramatic fall
in coal production. Pet. at ¶¶17-20. The Petition further alleged that
notwithstanding economic cutbacks at the Board and Girard College levels, the
Trust income has been insufficient to fund the financial requirements of the
College, requiring shortfalls to be funded by the use of Trust principal. Pet. at
¶¶21-22. Under the current spending level, and without consideration of
significant physical plant renovations that are required, the Board asserted the
Residuary Fund would be exhausted within 25 years. Pet. at ¶¶21-26. Because
Girard College cannot continue operating in the same manner, the Board requested
the Orphans’ Court to temporarily modify the provisions of the Will to allow the
elimination of the residential program and instead provide an extended day
program for grades 1 through 8. Pet. at ¶¶26-34. The Board asserted the
5
Act of June 30, 1869, P.L. 1276.
3
residential program is an administrative provision of the Will and requested the
Orphans’ Court to temporarily modify it pursuant to the 2006 codification of rules
for deviation from charitable trusts found at 20 Pa. C.S. §7740.3. Pet. at ¶¶36-38.
C. Parties and Hearing
Early on, the ensuing litigation focused on party status. The
Commonwealth of Pennsylvania, Office of Attorney General, Charitable Trusts
and Organizations Section (Office of Attorney General), became an active
participant, generally supporting the Board’s request for deviation and opposing
the addition/appointment of new parties. On the other hand, the Girard College
Alumni Association was denied intervenor status (but was later permitted to
participate as amicus curiae). In addition, the Orphans’ Court appointed James F.
Mannion, Esq. as amicus curiae.
A hearing on the merits was held in July 2014. The evidence
regarding past facts was not contested; however, the inferences to be drawn about
future developments were disputed. The following summary largely reflects
Amicus Mannion’s Post Trial Filing with the Orphans’ Court.
There have been three primary sources of funding for Girard College
over the years: 1) cash from coal and coal royalties; 2) cash generated by the real
estate portfolio; and, 3) interest and dividends earned on the Residuary Fund.
Notes of Testimony (N.T.), 7/17/14, at 13-16; R.R. at 258a.
4
Joseph Martz, Executive Director and Secretary of the Board, outlined
the historical and more recent performance of the coal, real estate and Residuary
Fund, including the long-term lease of Girard Square and the redeployment of the
proceeds into debt reduction and joint venture real estate interests. N.T. at 19-30;
R.R. at 259a-62a. Starting in 1997, the coal operations were not generating cash
for the Trust, and in 2007 they were losing approximately $3.3 million per year.
N.T. at 23; R.R. at 260a. The 2008 recession negatively impacted the real estate
operations by tenants not renewing leases, taking less space and negotiating lower
rental rates. N.T. at 33; R.R. at 263a. The Residuary Fund was also negatively
impacted by the recession, from a high point of $333 million in September 2007, to
$210 million in June 2009, to a low of $197.5 million in September 2011. N.T. at
19; R.R. at 259a; Amicus Ex. 2; R.R. at 683a.
During this time, the expenses of operating the College were
exceeding the income generated by coal, real estate and the Residuary Fund,
necessitating the sale of the principal of the Trust. N.T. at 47; R.R. at 266a. The
Board significantly reduced expenses at the Board level by various steps, including
reducing the number of students. N.T. at 39, 44-46; R.R. at 264a-66a. The Board
also significantly reduced debt through refinancing and by using a portion of the
proceeds of the long-term lease of Girard Square. N.T. at 30, 41-43; R.R. at 262a,
265a; Pet’r’s Ex. 1 at 18; R.R. at 327a.
The Board was concerned about the Trust’s financial future, and it
believed that if the financial situation continued the Trust, and in turn the College,
would run out of money. N.T. at 51; R.R. at 267a; Pet’r’s Ex. 1 at 24-25; R.R. at
5
333a-34a. These calculations did not include the cost of physical plant
renovations, which were estimated to be around $3.8 million for “deficiency
repairs” and in excess of $110 million for complete renovations. N.T. at 137; R.R.
at 289a; Pet’r’s Ex. 1 at 22; R.R. at 331a.
The Board concluded that the only prudent way to preserve and build
the Residuary Fund was to utilize a 6% spending rate on only the average value of
the Residuary Fund to fund the expenses of the College, with a goal of reducing
that to 5% and to apply the coal and real estate revenues to rebuild the Residuary
Fund. N.T. at 49-51; R.R. at 267a. Based on financial projections, the Board
concluded that a budget of $11.8 million for the College and $1.6 million for the
Board could be supported under such a plan. N.T. at 55, 87-88; R.R. at 268a,
276a.
In 2012, the Board created the “Girard College Strategic Plan Steering
Committee” (Steering Committee). The Steering Committee reviewed options for
the College in light of the $11.8 million budget. The Steering Committee also
reviewed reports from outside consultants, including FSG, an architectural firm,
the Institute for Research and Reform in Education, and the Brownstein
Corporation. N.T. at 135-36; R.R. at 288a; Pet’r’s Ex. 1 at 3-4; R.R. at 312a-13a.
The Steering Committee examined 13 options of keeping the residential program.
Pet’r’s Ex. 1 at 23; R.R. at 332a. The Steering Committee concluded the
residential program had to be temporarily suspended, and an extended day
(concluding after an evening meal), non-residential program for grades 1 through 8
was the most appropriate given the financial limitations and conditions of the
6
physical plant. N.T. at 153-55; R.R. at 293a. The Board accepted the
recommendation. Id.
Under the proposal, grades 1 through 8 would be consolidated in the
lower school buildings, which were the newest buildings on campus. N.T. 172-73;
R.R. at 297a-98a. Four million dollars in renovations to the lower school buildings
would be necessary. Id.
The Steering Committee recommendation was premised upon
educating 425 day students. N.T. at 122-25; R.R. at 285a-86a. Because of
transportation needs, the students who would be able to attend Girard College
would be limited geographically to those students able to get to and from the
school in a reasonable period of time. N.T. 167-68; R.R. at 296a. No evidence
was presented regarding the number of current students who would be able to
attend, nor was any evidence presented of how many additional students would be
needed to bring the number of students to 425. See id. No study was done to
determine if there were 425 eligible students who could attend given the
geographic restriction, although Board member Bernard Smalley testified that he
had a high degree of certainty that number could be attained. N.T. at 170; R.R. at
297a.
The Board also presented the “Girard College Growback Framework
and Transition Initiatives” (Grow Back Plan). Pet’r’s Ex. 2; R.R. at 589a-624a.
The financial aspects of the Grow Back Plan are premised upon the Residuary
Fund reaching $350 million. Projections suggested that it would take no less than
7
10 years to restore the Residuary Fund. Id. at 8; R.R. at 596a. No specifics of how
the residential program would be re-implemented were provided, and the Board
stated that it “rejects any suggestion that it should publicly announce today what
will be sustainable and in the best interests of the Girard students of tomorrow.”
Id. at 8-9; R.R. at 596a-97a (emphasis in original).
Changes occurred after the formation of the Steering Committee in
2011. Coal began producing a $2 million positive cash flow, which at the time of
the hearing was expected to continue into the future. N.T. at 70-73; R.R. at 272a-
73a; Amicus Ex. 1; R.R. at 682a (excerpt from Grow Back Plan). Real estate
began producing a positive cash flow, even with the contribution of $2 million to a
sinking fund for physical plant issues. N.T. at 72, 76; R.R. at 272a, 273a. The
actual 2013 financial reports reflected a $3.5 million excess of revenues over
expenses, with the $2 million sinking fund set aside. N.T. at 76; R.R. at 273a;
Amicus Ex. 1; R.R. at 682a. The 2014 projections initially suggested a $15,000
excess of revenues over expenses, but later the performance was expected to be $3
million excess of revenues over expenses, even with the $2 million contribution to
the sinking fund. N.T. at 88; R.R. at 276a; Amicus Ex. 1; R.R. at 682a.
During this time, the Residuary Fund increased in value. In
September 2011, when the FSG report was commissioned, the Residuary Fund was
at its lowest value of $197.6 million. N.T. at 78-79; R.R. at 274a; Amicus Ex. 2;
R.R. at 683a. By the time the Steering Committee issued its report, the value of
the Residuary Fund increased to approximately $233 million. N.T. at 81; R.R. at
275a; Amicus Ex. 2; R.R. at 683a. From that time to June 30, 2014, the Residuary
8
Fund increased further to $262.2 million. N.T. 19, 79; R.R. at 259a, 274a. These
increases in value occurred despite the use of the Residuary Fund principal in the
past. N.T. at 84-85; R.R. at 275a-76a. These increases also reflected the reduction
of debt service and therefore the need to utilize Residuary Fund principal. Id.
The Board called as an expert witness Howard Brownstein, a business
turnaround consultant who authored a report attached as Exhibit A to the Report of
the Steering Committee, Petitioners’ Exhibit 1. R.R. at 345a-57a. Mr. Brownstein
did not agree that modification to the Girard College programs could be delayed in
hopes that recent favorable financial trends continue. N.T. at 200-05; R.R. at
304a-06a. Some of the questioning was conducted by the Court. Id.
One future uncertainty concerned the Trust’s rental real estate
portfolio, especially leases in the ARAMARK Tower. The Board had
communications with both the City (lease ending September 2016) and
ARAMARK (lease ending September 2018) regarding lease renewals. N.T. 89-90;
R.R. at 277a. The loss of the two large leases would place the Trust’s rental real
estate income into the negative again and place Girard College at risk. Id. More
would be known about the City lease renewal by around July 2015, and the
ARAMARK lease renewal by around July 2016. Id.
II. Orphans’ Court Decision
The Orphans’ Court acknowledged the legal basis for the requested
deviation: 20 Pa. C.S. §7740.3, adopted in 2006. The provisions at issue provide:
9
(a) General rule.--Except as otherwise provided in
subsection (b), if a particular charitable purpose becomes
unlawful, impracticable or wasteful:
(1) the trust does not fail, in whole or in part;
(2) the trust property does not revert to the settlor or
the settlor’s successors in interest; and
(3) the court shall apply cy pres to fulfill as nearly as
possible the settlor’s charitable intention, whether it be
general or specific.
****
(c) Administrative deviation.--A court may modify an
administrative provision of a charitable trust to the extent
necessary to preserve the trust.
20 Pa. C.S. §7740.3 (a), (c).
A. Administrative Provisions
The Orphans’ Court first addressed the Board’s contention that the
proposed modifications of the Trust may be considered administrative provisions
of the Will, subject to deviation under subsection (c). 20 Pa. C.S. §7740.3(c). The
Court noted the distinction between administrative provisions, mechanical means
from which deviation may be permitted to secure the more important result of
obtaining for the beneficiaries the advantages which the settlor stated he wished
them to have, and dispositive clauses, from which deviation is not permitted under
the subsection. Orphans’ Ct. Op. Sur Decree, 8/21/14 (Orphans’ Ct. Op.) at 14.
Then, the Court reviewed provisions of the Will quoted above. Id.
The Orphans’ Court rejected the argument that the proposed
modifications of operations at Girard College relate to administrative provisions of
10
the Will. The Court stated (with emphasis by underline added, emphasis by bold
italics in original):
Girard envisioned a boarding school that would
both educate and provide a home for poor orphan boys.
Stephen Girard’s direction that students were to stay at
the college until they could be bound out as apprentices
is likewise essential to his vision of a boarding school.
According to Girard, students were to ‘remain in the
college until they shall respectively arrive at between
fourteen and eighteen years of age.’ At the time it was
common practice for overseers of the poor to apprentice
children whose parents were unable to maintain them.
Stephen Girard’s direction that students remain at the
College until they could obtain an apprenticeship reflects
the reality of the 1830s that an orphan was a child
without a residence or family to support them. While the
practice of apprenticeship has changed with history, the
intended trust purpose of retaining students at Girard
until they are able to live on their own has not changed.
Id. at 15 (footnoted citations to the Will, Clause XXI, ¶9, and to a law review
article omitted).
B. Cy Pres
Next, the Orphans’ Court considered the application of the cy pres
doctrine, now codified in subsection (a). 20 Pa. C.S. §7740.3(a). The Court
concluded the residential program and the high school relate to substantive
portions, not administrative portions, of the Will. Orphans’ Ct. Op. at 15. The
Court stated:
By the terms of his Will, Stephen Girard made clear that
the residential program and the retention of students until
roughly fourteen through eighteen years of age enhanced
their educational experience. Divorcing the residential
11
aspect of Girard College and the high school program
from a Girard education is inconsistent with the very
terms of the Will and the directions of the testator.
Id. at 15-16 (emphasis added).
Citing the RESTATEMENT (SECOND) OF TRUSTS §399 (1959), the
Orphans’ Court concluded that the cy pres doctrine cannot be invoked until it is
clearly established that the directions of the donor cannot be carried into effect. Id.
at 16. Stated otherwise, cy pres should be applied only when it is impossible,
impracticable or illegal to carry out the terms of a charitable trust. Id. The Court
then rejected the Board’s argument that continuing the boarding school and the
high school is impracticable.
The Board argues that continuing the boarding
school and the high school is impracticable.
Significantly, the Board does not represent that the
residential aspect of Girard or the high school are
permanently impracticable. Rather, by its Petition the
Board seeks to potentially revive both programs at an
unknown later date. To support their statement of
impracticability, the Board cites to the struggles of
Girard’s financial resources during the last five to six
years. But, as the Board acknowledged, all three of their
funding sources are doing substantially better today. Due
to this trend, for 2013, the Estate will have a positive
cash flow of close to $3.5 million. Thus, the net cash
available to the Estate is sufficient to cover the projected
budget for the college for the coming year, operating
with both a residential program and a high school.
Indeed, it is not impracticable for the College to operate
with a boarding school and a high school on the current
and projected income for this year and in coming years.
Id. (emphasis added, footnoted citation to Petition omitted).
12
C. Anticipated Circumstances
Thereafter, the Orphans’ Court addressed deviations made in the past
to meet changing circumstances, some of which were approved by the Court, and
some of which were undertaken without Court approval. Id. at 17. Throughout all
the changes, the Girard College residential program has been in place, dating back
to the first class in 1848. Id.
Continuing to address changing circumstances, the Orphans’ Court
described the historical fluctuations in the Estate’s financial stability, and the
concomitant changes in the number of students enrolled:
In 1831, Stephen Girard directed that at least 300
students were to be accommodated at the college, but
when Girard opened in 1848, the school only housed 95
students. By 1869, the College had expanded due to the
success of their real estate holdings, growing to 459
students. In 1948, the student population rose to 1700
students due to large coal royalty payments. Coal
royalties fell off dramatically in the 1960s and 70s and by
1985, the school shrunk to 285 students. In the 1990s,
the rising stock market caused an increase in the value of
the Estate’s investment portfolio and the student
population rose once again. By 2007, there were 753
students enrolled at Girard. In 2008 a poor real estate
market and falling stock values would cause the Estate to
make substantial cuts, whittling the student population to
approximately 300 students. Through its history, the
Board of City Trusts has continually altered the number
of students enrolled at Girard based on the available
income.
Id. (emphasis added).
13
Finally, the Orphans’ Court concluded that the testator anticipated
that the income available to support Girard College would fluctuate. Id. The
Court stated:
In considering the Board’s argument of impracticability,
it is also important to note that the testator anticipated
that the income available to support Girard would
fluctuate. On this point, the testator directed that the
income of the Girard Estate was solely to be used to
support as many students as possible at the college:
‘There are, however, some restrictions,
which I consider it my duty to prescribe, and
to be, amongst others, conditions on which
my bequest for said college is made and to
be enjoyed, namely; first, I enjoin and
require, that, if, at the close of any year, the
income of the fund devoted to the purposes
of the said college shall be more than
sufficient for the maintenance of the
institution during that year, then the balance
of the said income, after defraying such
maintenance, shall be forthwith invested in
good securities thereafter to be and remain a
part of the capital; but in no event shall any
part of the said capital be sold, disposed of,
or pledged to meet the current expenses of
the said institution, to which I devote the
interest, income, and dividends thereof
exclusively.’
Elsewhere in his Will Girard wrote that ‘as many poor
male white orphans, between the ages of six and ten
years as the said income shall be adequate to maintain,
shall be introduced into the College as soon as possible;
and from time to time, as there may be vacancies, or as
increased ability from income may warrant, others shall
be introduced.’ Girard, cognizant of the possibility that
the income of his Estate would rise and fall, specifically
provided that the size of Girard College would be
determined by the income available to support it. The
14
Will speaks for itself and establishes the settlor’s
intention to create a boarding school for as many students
as income would provide for the purpose.
Id. at 17-18 (emphasis added, footnoted citations to the Will, Clause XXI, ¶¶9, 4
omitted). Ultimately, the Court concluded that “[a]pplication of the cy pres
doctrine to make such fundamental changes is not justified by the current cash flow
and projected income of the Estate.” Id. at 19 (emphasis added).
Thus, the Orphans’ Court denied the Board’s Petition without
prejudice. After denial of exceptions, appeal was taken to this Court.
III. Issues
As the appellant, the Board raises three issues for our consideration.
First, it questions whether the Orphans’ Court erred in refusing to apply the
doctrine of administrative deviation, codified at 20 Pa. C.S. §7740.3(c). Second, it
asks whether the Court erred in refusing to apply the doctrine of cy pres, codified
at 20 Pa. C.S. §7740.3(a). Third, it questions whether the financial circumstances
confronting the Estate justify granting the requested modifications under either of
the foregoing legal theories.
Although the Office of Attorney General supported the Board in the
proceedings before the Orphans’ Court, its position as nominal appellee in this
appeal is different. It frames the issue as follows: “Was the eventual denial of the
Board’s [Petition] a reasonable exercise of judicial discretion, consistent with
applicable law, notwithstanding the Attorney General’s general support for the
[P]etition in the Orphans’ Court?” Br. of Appellee/Participant Commonwealth of
15
Pennsylvania, Office of Attorney General, Charitable Trusts and Organizations
Section, at 5.
“Our review of this case is guided by the principles that the scope of
appellate review of a decree in equity is particularly limited and that the findings of
the Chancellor will not be reversed unless it appears that the Chancellor clearly
committed an abuse of discretion or an error of law.” In re Barnes Found., 684
A.2d 123, 130 (Pa. Super. 1996) (quoting Dudash v. Dudash, 460 A.2d 323, 326
(Pa. Super. 1983)) (internal citations omitted).
IV. Discussion
A. Administrative Provisions
1. Contentions
The Board contends the Orphans’ Court improperly refused to apply
the doctrine of administrative deviation based on its erroneous determination that
Girard College’s residential and high school programs are essential purposes under
the Will. It asserts that a review of the plain language of the Will and the historical
treatment of the College by the courts, in addition to present and evolving societal
circumstances, demonstrates that the programs are subordinate and ancillary to
Stephen Girard’s dominant and primary purpose of maintaining an institution for
the education of disadvantaged children in perpetuity.
The Office of Attorney General contends there are no grounds to
reverse the Orphans’ Court. The Court had to make an independent determination,
and it was not bound by the position taken below by the Office of Attorney
16
General. As the Orphans’ Court found, administrative deviation was not warranted
because what the Board proposed would impermissibly remake the Girard Trust,
which always contemplated a boarding school.
The Girard College Alumni Association (Alumni Association), as
amicus curiae, reminds us that Stephen Girard’s vision, to educate disadvantaged
children in supervised residence until graduation into a productive life, was
distinctive for its time. The Alumni Association asserts that to dilute that vision by
substitution of non-residential day schooling only to the eighth grade, even if
temporarily and even if offered to more students, would transgress Mr. Girard's
primary purpose and diffuse that beneficence. The Alumni Association urges this
Court to consider the Board’s long-term forecasts as speculative, and affirm the
Orphans’ Court decree, which was entered without prejudice for future
consideration of proposals.
2. Analysis
As now codified at 20 Pa. C.S. § 7740.3(c), the rule of administrative
deviation is: “A court may modify an administrative provision of a charitable trust
to the extent necessary to preserve the trust.” The phrase “administrative
provision” is not further defined.
A leading Pennsylvania case on the doctrine of administrative
deviation is In re Barnes Foundation, which was decided before the codification of
20 Pa. C.S. §7740.3(c) in 2006. In Barnes Foundation the Superior Court quoted
RESTATEMENT (SECOND) OF TRUSTS §381 (1959) (“Deviation from Terms of the
17
Trust”). The Court also relied on a learned treatise to define administrative
provisions subject to deviation as “the details of administration which the settlor
has prescribed in order to secure the more important result of obtaining for the
beneficiaries the advantages which the settlor stated he wished them to have.”
Barnes Found., 684 A.2d at 130 (quoting GEORGE GLEASON BOGERT & GEORGE
TAYLOR BOGERT, THE LAW OF TRUSTS AND TRUSTEES §561 at 27). The Court
emphasized that “deviation is not based on mere convenience, but on the necessity
of effecting a change in a situation where compliance with the terms of the trust
‘would defeat or substantially impair the accomplishment of the purpose of the
trust.’” Id. at 130-31 (quoting Colin McK. Grant Home v. Medlock, 349 S.E.2d
655, 659 (S.C. Ct. App. 1986)).
In his important law review article, Administrative and Dispositive
Powers in Trust and Tax Law; Toward a Realistic Approach, 36 U. Fla. L. Rev.
957 (1984), Professor Martin D. Begleiter offered a concrete distinction between
administrative and dispositive provisions. He defined an administrative provision
or power as one that concerns the management of property, is incidental to the
substantive terms of the transfer, and is not directly substantive. Id. at 958-59.
The definition would include investment powers, powers to appoint successor
fiduciaries in inter vivos trusts, powers to sell, lease or mortgage, powers to hold
separate shares in solido and to hold property in bearer form, powers to collect and
pay debts and taxes, powers to make tax elections, clauses relieving the trustee of
liability, and similar management clauses. Id. at 959 n.6. In contrast, a dispositive
power or provision directly affects the substantive provisions of the trust, primarily
those provisions identifying the beneficiaries and setting forth their interests. Id. at
18
959. The theme of Professor Begleiter’s work is that deviation is permissible only
if it does not affect the beneficiaries’ interests. Id. at 1001.6
Under either the Superior Court’s definition of administrative
provisions in Barnes Foundation, or Professor Begleiter’s definition, we discern no
error in the Orphans’ Court’s resolution of this issue. Relying on references to
providing “maintenance,” “residence” and “lodging” in Will Clauses XX and XXI,
quoted near the beginning of this opinion, the Orphans’ Court properly concluded
6
In addition, Professor Begleiter traced the development of the administrative deviation
doctrine from an 1862 case out of Illinois, Curtiss v. Brown, 29 Ill. 201 (1862), to more recent
decisions. He discerned an interesting trend:
The doctrine of deviation began as a narrow emergency doctrine
developed by necessity to prevent the failure of a trust. Originally
it focused on the needs of the beneficiary or the possible reduction
in the trust corpus as to the extent that the trust assets became
practically worthless. The focus gradually changed to what the
court believed to be the testator’s dispositive plan. Later, the
doctrine was expanded to include cases where a serious
impairment of value of one asset of the trust existed, though the
trust corpus remained of great value and no need or burden on the
beneficiaries was proven. Even the stated purpose of the testator
could be ignored.
Recent cases have focused on changed circumstances, not
of the trust, but of national economic conditions. The trust need
not have declined in value, nor need the property be unproductive
to invoke deviation. Courts require only a change in national or
world-wide economic conditions threatening the purchasing power
of the trust’s assets. Absent from these decisions is any detailed
inquiry into the testator’s purpose. … Deviation from
administrative provisions has therefore become a broad doctrine,
though occasionally tempered by some requirement of need by the
beneficiaries or impairment of the trust assets.
Martin D. Begleiter, Administrative and Dispositive Powers in Trust and Tax Law; Toward a
Realistic Approach, 36 U. Fla. L. Rev. 957, 969 (1984) (footnotes omitted).
19
that the residential program at Girard College did not involve a non-substantive
detail of administration. Further, the Orphans’ Court was justified in concluding
that Will references to “residence” and “lodging” encompass provisions of the
Trust setting forth part of the beneficiaries’ interests, and as such, are dispositive
provisions.
Similarly, the Orphans’ Court properly concluded that the high school
grades did not involve a non-substantive detail of administration. The Court
quoted Will Clause XXI, ¶9, to support its conclusion that Girard’s intended trust
purpose was “of retaining students at Girard until they are able to live on their own
….” Orphans’ Ct. Op. at 15. Because we agree that this Will provision identifies
part of the beneficiaries’ interests, rather than some detail of management, no error
is evident.
The Board’s reliance on past modifications does not compel a
different result. The Orphans’ Court correctly disposed of this argument by noting
that one modification was made without Court approval (2009 suspension of
weekend residential program), and other modifications related to constitutional
questions (admission of girls and minorities). See Orphans’ Ct. Op. at 17.
Nevertheless, the residential program remained in place since the College’s first
class in 1848. Id. Under these circumstances, we agree with the Orphans’ Court
that past modifications do not control the current controversy.
20
B. Cy Pres
1. Contentions
The Board also contends the Orphans’ Court erred by denying
modification under the doctrine of cy pres. It asserts the fundamental purpose of
Stephen Girard – the maintenance of an educational institution for children of
lesser means – is threatened by existing financial circumstances. The purpose of
the Will has clearly become impractical and, unless addressed now, that purpose
will be ultimately frustrated. If modifications are not permitted, the Residuary
Fund, the primary source of revenue to support the College, will be depleted. The
Orphans’ Court’s myopic focus on “this year” or the “coming years” was error and
did not acknowledge the cy pres doctrine. According to the Board, a decision on
modification cannot be deferred, and the Court abused its discretion in doing so.
The Office of Attorney General counters that cy pres relief was not
warranted because the College’s residential and high school programs were not
“impracticable” given recent promising financial trends. In essence, the Board
asked for a cy pres remedy preemptively, out of concern that Girard College’s
complicated and unquestionably precarious financial situation may deteriorate.
But, the Orphans’ Court has wide discretion, and it is not obligated to grant cy pres
relief at the first whiff of trouble. Moreover, there is not necessarily such a thing
as “temporary” cy pres.
The Alumni Association claims that the Board did not provide
sufficient evidence that cy pres is applicable here. The Alumni Association
highlights that the College continues to operate, changes in operations were made
21
and further changes can be made, and financial conditions have improved. It
asserts that the proposed modifications are more a matter of the trustee’s
convenience than a necessity at this time.
2. Analysis
As now codified at 20 Pa. C.S. §7740.3(a), the doctrine of cy pres is,
in pertinent part: “if a particular charitable purpose becomes unlawful,
impracticable or wasteful … the court shall apply cy pres to fulfill as nearly as
possible the settlor’s charitable intention, whether it be general or specific.”
The Orphans’ Court determined that, given more recent financial
trends, “the net cash available to the Estate is sufficient to cover the projected
budget for the college for the coming year, operating with both a residential
program and a high school. Indeed, it is not impracticable to operate with a
boarding school and a high school on the current and projected income for this
year and in coming years.” Orphans’ Ct. Op. at 16 (emphasis added).
For several reasons, we discern neither error nor abuse of discretion in
the determination of no current impracticability. First, as discussed in the previous
section, we see no error in the Orphans’ Court’s determination that, based on
express terms in the Will, both a residential program and a high school program
were important parts of Stephen Girard’s charitable gift. The Court properly
rejected the Board’s too-broad definition of intent as an “educational institution for
children of lesser means.”
22
Second, it was well within the Orphans’ Court’s discretion to give
promising near-term financial projections greater weight than the dire long-term
predictions offered by the Board. This is especially true where the Court tempered
its resolution by permitting future application for modification. In the absence of
binding authority limiting the Orphans’ Court’s broad discretion in similar
circumstances, we decline to interfere with its judgment.
C. Anticipated Circumstances
1. Contentions
Further, the Board assigns error in the Orphans’ Court’s focus on the
financial evidence of “this year” and “coming years.” The Board contends that the
issue before the Court was not whether the Estate had sufficient funds to operate
with a boarding school and high school for one or two years, but rather, whether
the Estate will have sufficient financial resources to operate Girard College in
perpetuity, as Stephen Girard desired. By limiting the scope of its review to 2013
and 2014, the Orphans’ Court failed to appreciate the critical financial challenges
facing the Estate that inevitably will lead to an inability to continue operating the
College as an educational institution. This limited review was error, according to
the Board.
The Board contends that in particular, the Orphans’ Court failed to
account for necessary infrastructure improvements, failed to account for the
additional $1 million contributed to the sinking fund beginning in 2015, failed to
account for the likelihood and impact of tenancy loss at ARAMARK Tower, failed
to account for an increase in capital expenditures for properties held in the Estate’s
23
real estate portfolio, and improperly ignored Brownstein’s testimony and report.
The Board urges that the record supports the requested modifications as the means
of preserving Girard College going forward.
The Office of Attorney General points out that the Board’s argument
on this last issue is unsupported by any legal authority and amounts to a lengthy
critique of how the Orphans’ Court weighed, analyzed and interpreted the
evidence. Nevertheless, the Court did its job. It is apparent from the Orphans’
Court’s opinion that it read the court filings, listened to the hearing witnesses,
reviewed the documentary evidence, and arrived at a reasoned conclusion, based
upon the entire record. That is all any litigant can expect.
The Office of Attorney General also reminds us that the Orphans’
Court concluded, more or less along the lines of Amicus Mannion’s position, that it
would be appropriate to continue monitoring the situation with Girard College for
at least a while longer. By denying the Petition without prejudice, the Court left
the door open to revisiting the Board’s concerns should seemingly promising
financial trends not endure. That was a thoughtful, judicious approach.
The Alumni Association argues that the Orphans’ Court applied the
required scrutiny through its court-appointed amicus and in its independent
analysis of the record. The Court found the proposed modifications to be
misguided in view of the Will and in view of the information supplied by the
Board. Beyond that, the precedents that the Board seeks to set regarding the
doctrines of administrative deviation and cy pres exceed current law. Mere long-
24
term projections and speculation, even based upon expert opinion, should not
become the basis for a present application of these doctrines.
2. Analysis
RESTATEMENT (SECOND) OF TRUSTS Section 381 (1959), entitled
“Deviation from Terms of the Trust,” provides (with emphasis added):
The court will direct or permit the trustee of a
charitable trust to deviate from a term of the trust if it
appears to the court that compliance is impossible or
illegal, or that owing to circumstances not known to
the settlor and not anticipated by him compliance
would defeat or substantially impair the
accomplishment of the purposes of the trust.
“In order to permit deviations from the administrative terms of a trust, courts
generally require the presence of two elements: ‘(1) unforeseen and unforeseeable
change of circumstances, and (2) a frustration of the settlor’s main objectives by
this change, if strict obedience to the settlor[’s] directions were required.’” Barnes
Found., 684 A.2d at 130 (quoting GEORGE GLEASON BOGERT & GEORGE TAYLOR
BOGERT, THE LAW OF TRUSTS AND TRUSTEES §561 at 230) (emphasis added).
Such was the existing law of Pennsylvania prior to the adoption of 20
Pa. C.S. §7740.3, entitled “Charitable Trusts – UTC 413.” This provision is
similar to Section 413 of the Uniform Trust Code (2000). See 20 Pa. C.S. §7740.3,
Historical and Statutory Notes. Indeed, the Joint State Government Committee
Comment to the Section states, “Subsection (c) [“Administrative deviation”]
codifies existing Pennsylvania law.” 20 Pa. C.S. §7740.3, Jt. St. Gov.t Comm.
Comment—2005.
25
For context, RESTATEMENT (THIRD) OF TRUSTS Section 66(1) (2003),
entitled “Power of Court to Modify: Unanticipated Circumstances,” covers similar
material and provides (with emphasis added):
(1) The court may modify an administrative or
distributive provision of a trust, or direct or permit
the trustee to deviate from an administrative or
distributive provision, if because of circumstances
not anticipated by the settlor the modification or
deviation will further the purposes of the trust.
Thus, under the RESTATEMENT (THIRD) Section 66(1), the so-called “equitable
deviation” doctrine, a court may modify both administrative and distributive
provisions. See id., cmt., subsection (1). Further, the stated rule does not require
changed circumstances; rather, it is sufficient that the settlor was unaware of the
circumstances in establishing the terms of the trust. Id.
Here, the Orphans’ Court determined that “the testator anticipated that
the income available to support Girard would fluctuate.” Orphans’ Ct. Op. at 17.
Further, the Court stated, “Girard, cognizant of the possibility that the income of
his Estate would rise and fall, specifically provided that the size of Girard College
would be determined by the income available to support it.” Id. at 18. The Court
relied on the Will, Clause XXI, ¶¶ 4, 9. Id. This finding of anticipated
circumstances, supported by terms of the Will, precludes deviation under
RESTATEMENT (SECOND) OR RESTATEMENT (THIRD) OF TRUSTS. The Board makes
no legal argument to the contrary.
Given the finding of anticipated circumstances, the Board’s fact-
heavy, law-light argument on the Orphans’ Court’s short-term financial focus
26
cannot support a reversal, regardless of whether the programs in question pertain to
administrative or distributive aspects of the Will. Similarly, given the Court’s
determination of no current impracticability (discussed above), the doctrine of cy
pres will not support reversal.
Nevertheless, we carefully examined the Board’s factual arguments.
We conclude that they lack merit. Contrary to the Board’s contentions, the
Orphans’ Court considered the cost of infrastructure improvements, Orphans’ Ct
Op. at 9, and of additional contributions to the sinking fund, id. at 10 n.57.
Further, the Court was clearly aware of the possible future tenancy
loss/substantial tenant improvements at ARAMARK Tower. See N.T. at 203-04;
R.R. at 305a (testimony of Brownstein, colloquy with Court). See also N.T.,
10/30/14 at 24-28; R.R. at 732a-33a (argument on exceptions, colloquy with
Court); Post Trial Filing of James F. Mannion, Amicus Curiae, at 7; R.R. at 712a.
Similarly, the Court was well aware of Howard Brownstein’s expert opinion that
the Board should not wait to implement the proposed modifications. N.T. at 200-
05; R.R. at 304a-06a (testimony of Brownstein, colloquy with Court). Regarding
these future uncertainties for the real estate portfolio, the Orphans’ Court was
obviously, and consistently, skeptical about the scenarios as presented by the
Board. Thus, as to these points, the record supports the Court’s conscious decision
not to afford great weight to the Board’s evidence.
27
V. Conclusion
Like the Orphans’ Court, this Court commends the Board for
beginning to confront the myriad of financial, educational and institutional
challenges currently facing Girard College. See Orphans’ Ct. Op. at 19.
Nevertheless, we discern no legal or factual basis to disturb the considered
judgment of the Orphans’ Court; therefore, we affirm.
ROBERT SIMPSON, Judge
Judge Brobson did not participate in the decision in this case.
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Estate of Stephen Girard, Deceased :
Trust for Girard College :
: No. 2254 C.D. 2014
Appeal of: Board of Directors of City :
Trusts, Trustee of the Trust under Will :
of Stephen Girard for Girard College :
ORDER
AND NOW, this 21st day of January, 2016, the Final Decree of the
Orphans’ Court Division of the Court of Common Pleas of Philadelphia County,
dated November 14, 2014, dismissing exceptions and affirming the Decree of
August 21, 2014, is hereby AFFIRMED.
ROBERT SIMPSON, Judge