This is an action to have the funds of certain testamentary charitable trusts which have been awarded to defendants by order of the court under the doctrine of cy pres now awarded to plaintiffs in accordance with the original special intents of testatrices-settlors of these trusts on the ground that circumstances have now arisen which make fulfillment of that intent possible and practicable. The facts are as set forth below.
Under the will of one Susan W. Lippincott, deceased, of the Township of Cinnaminson, Burlington County, New Jersey, who died on March 20, 1906, provision was made for the establishment of a charitable trust for the purpose of constructing and maintaining a library and reading room and to encourage other educational interests and purposes in the Township of Cinnaminson. The pertinent provisions of the will are as follows:
"3. As to one eighth part thereof (residue) In Trust to pay the same to Henry H. Lippincott, Mary W. Lippincott daughter of my brother Henry H. Lippincott * * * In Trust to invest the said sum, collect the income thereof and permit the same to accumulate until such time as the said one eighth part thereof and accumulated income therefrom shall in the judgment of the said Trustees be sufficient for the purchase of a suitable lot of ground situate within one eighth of a mile if practicable of the intersection of the Burlington Turnpike Road with the Riverton and Moorestown Road in the Village of Westfield, Cinnaminson Township, Burlington County, New Jersey and for the erection thereon of a suitable building of artistic design for a Library and Reading Room, and for the maintenance of the Library and Reading Room aforesaid.
When the amount available for said purposes shall * * * be sufficient therefore upon the further trust to purchase the said lot of
ground, to cause to be erected thereon the building hereinbefore mentioned, to maintain the said building, to maintain and manage a Library and Reading Room therein and to encourage such other educational interests and purposes as in the judgment of the said Trustees shall be wise and needful; and to appropriate the net income from any portion of the said sum not required for the purchase of the said lot of ground and the erection of the said building to the maintenance of the said building, to the maintenance of the said Library and Reading Room and the support of the other educational interests and purposes aforesaid." (Emphasis supplied)
The trustees named pursuant to this provision thereafter incorporated and became known as the Cinnaminson Library Association. After more than 35 years of administering the fund, making investments thereof and accumulating interest therein, the trustees, realizing that they were unable to erect a suitable library building, applied to this court in the matter of Cinnaminson Library Association v. Fidelity-Philadelphia Trust Co., Docket No. 148-83 to be relieved as trustees and also for directions providing that the income from this trust fund be forwarded to the Moorestown Free Library Association and the Riverton Free Library Association, both of which institutions supplied library services to the residents of Cinnaminson Township. It appearing that there were no library facilities in Cinnaminson Township, nor was there any likelihood of such services to be provided in the foreseeable future, the court, applying the doctrine of cy pres, appointed the First Camden Bank and Trust Company, Camden, New Jersey, as substituted trustee and directed that the directors invest and reinvest the Lippincott trust fund and pay one-half the net income therefrom semiannually to Riverton Free Library Association and the remaining one-half to the Moorestown Free Library Association in lieu of the specific provisions set forth in the Susan Lippincott will. This judgment was entered on October 29, 1945. On August 7, 1956 an order of this court was entered amending the aforementioned judgment to allow expenditure of certain income and a part of the principal of the trust
for purposes of capital construction and maintenance of the library operated by the Riverton Library Association.
Under the will of one Mary W. Lippincott, an original trustee of the Susan Lippincott fund, provision was made in the ninth paragraph thereof as follows:
"I give and bequeath to the Memorial Library of Cinnaminson, New Jersey, the sum of Five Thousand Dollars, to be paid to the treasurer of the said Library, and to be used toward the construction of a library building, provided, however, that this legacy shall abate and be deemed revoked if I shall have given the said sum of Five Thousand Dollars to the said Library in my lifetime."
There being no "Memorial Library of Cinnaminson" in existence at the time of the demise of Mary W. Lippincott and upon the passage of time, the qualified trustees of the Cinnaminson Library Association petitioned this court in the matter of the Cinnaminson Library Association v. Fidelity-Philadelphia Trust Company, 141 N.J. Eq. 127 (Ch. 1948) for a bill of instructions as to the disposition of the funds under this testamentary trust. On January 26, 1948 a judgment was entered in the matter directing appointment of First Camden National Bank and Trust Company as substituted trustee and under the doctrine of cy pres directing them to pay over one-half the income therefrom each to Riverton Free Library Association and Moorestown Free Library Association in lieu of the specific ...