Lester A. Drenk, J.c.c. (temporarily assigned).
[52 NJSuper Page 53] This is an action by the executors of the estate of Laura E. W. Tyler, deceased. The first count of the complaint raises the question of the legality of two certain trust funds created under the will of the decedent and seeks instructions in regard thereto. All other matters raised in the pleadings have been heretofore determined.
Two charitable trusts were created by the testatrix in her last will and testament in the following language:
"All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to 'The City of Philadelphia, Pa., acting by the Board of Directors of City Trusts,' in Trust, as a separate and permanent fund, to hold, invest and re-invest the same, to collect the income and after paying all expenses, incident to the management of the trust, to use one half of the annual net income arising therefrom, to be known as 'The Henry L. Wilkinson Fund' to provide food and clothing for White, American born, needy and dependent wives, and, of white, American born, needy and dependent children under fourteen years of age of felons committed to 'The Eastern State Penitentiary,' now at 21st and Fairmount Avenue, Philadelphia, Pa., or wherever the same may be located, or, the institution that later takes its place; and, to use the other half of the annual net income arising therefrom, to be known as 'The Mercy A. Wilkinson Fund' either for free hospitalization at Hahnemann Hospital, now located on Broad St. above Race Sts., in the City of Philadelphia, Pa. or the institution that takes its place, or treatments at home or in clinic by said Hahnemann Hospital or its successor of white, American born, needy children under fourteen years of age, such children not to be chronic cases, nor children of an intelligence quotient of less than seventy-five."
Plaintiffs seek construction of the above article because of the named trustee and because the beneficiaries of the first-mentioned trust are limited to "white, American Born, needy and dependent wives and of white, American born, needy and dependent children under 14 years of age of felons committed to the Eastern State Penitentiary, now at 21st and Fairmount Avenues, Philadelphia, Pa.," and the beneficiaries of the second mentioned trust are limited to "white, American born, needy children under 14 years of age, such children not to be chronic cases nor children of an intelligence quotient of less than seventy-five."
The doubt has arisen in the minds of the executors by reason of the decision of the United States Supreme Court in the case of Commonwealth of Pennsylvania v. Board of Directors of City of Philadelphia , 353 U.S. 230, 77 S. Ct. 806, 1 L. Ed. 2 d 792 (1957). In this case, the Supreme Court
of Pennsylvania originally held that the will of Stephen Girard and the testator did not violate the 14th amendment of the United States Constitution, because of the exclusion of Negro orphans from Girard College, Girard Will Case , 386 Pa. 548, 127 A 2 d 287 (Pa. 1956). This decision was appealed to the United States Supreme Court, supra.
Before discussing the application of the Girard College case, it seems advisable to set forth briefly some of the facts concerning the decedent Laura E. W. Tyler. She was a retired school teacher. She had graduated from Bryn Mawr College; earned a degree of law at Temple University and a master's degree at Columbia University. Her will and codicils, except one, were prepared by herself. Those that she prepared were in her own handwriting and apparently she sought no legal advice other than her own in reference to the preparation of her will and codicils.
Decedent died July 13, 1956, a resident of the City of Ventnor, Atlantic County, New Jersey. The plaintiffs qualified as executors before the Surrogate of Atlantic County, November 28, 1956.
By reason of her education and interest in education, due to her employment, it is reasonable to assume that the decedent had some knowledge of the creation, administration and operation of Girard College. Why she was interested in the classes who are to benefit under the terms of the trust created in her will does not appear. It was also quite apparent that she had not forecast nor was information available to her as to the action of the United States Supreme Court in regard to the provisions of the trust created under the will of Stephen Girard.
A concise statement of facts as to the litigation in the Girard estate appears in the brief submitted on behalf of the City of Philadelphia acting by the Board of Directors of City Trusts. The following history is given on pages 5, 6, 7, 8, of said brief.
"The basis of any challenge of The City of Philadelphia as Trustee under Item IX of the testatrix's will, must be the decision of the Supreme Court of the United States in Commonwealth of Pennsylvania
et al. v. Board of Directors of City Trusts [ of Philadelphia ], 353 U.S. 230, 77 S. ...