Appeal of Gumbert

1 A. 437, 110 Pa. 496, 1885 Pa. LEXIS 453

• Court: Supreme Court of Pennsylvania
• Decided: October 26, 1885
• Status: Published

Opinion

Mr. Justice Gordon

delivered the opinion of the court October 26th, 1885.

On the 4th of July, 1817, Daniel Frantz, for the nominal consideration of two dollars, executed a deed to the Presbyterian and Lutheran societies, in which the purpose of the grant is stated as follows: “ And the above mentioned societies to have and to hold said piece of land for the only use and purpose of a church and churchyard and burying place and for supplies of the gospel, against me, the said Daniel Frantz, my heirs and assigns forever, except the rights of privileges above mentioned, whereto said piece of land is appropriated only.” It is very clear that the grant above recited, is for a special-purpose only, and that when that purpose fails the laud must revert to the heirs of Frantz.

As a place of worship it has been abandoned long ago, but it is still used as a place for the burial of the dead, so that the intended use stiil continues, and by this use a reversion is prevented. Again, as the grant was to the societies, in said deed named, the trust devolved upon them as long as they had an existence, but when they were dissolved, there was nothing left but a use to those who had, or have, relatives buried in the land, the subject of Frantz’s gift. These, and the heirs of Frantz, are the only persons remaining who have any interest in the premises in dispute. Moreover, as was held in the case of Brendle v. The Reformed Congregation, 9 Ca., 415, a charity must be accepted on the terms on which it is given, or relinquished; it cannot be altered by any new agreement between the donor and donee, or converted to any other purpose. If then, Frantz and the two societies could not, after the date of the grant, change the purpose therein set forth, we cannot see who else had the power to assume such right. There is no doubt but that persons interested might, as they seem to have done, have themselves and others incorporated in order the better to preserve the use, for in such ease the corporation becomes a trustee, with power to administer the trust for the benefit of all interested. But who liad the right to convey to this corporation the fee in these premises? The Frantz heirs? They might, indeed, convey their reversionary interest, but nothing more ; their deed eould not defeat the trust. Neither could the beneficiaries so convey, for their right is only a use for a particular purpose, and not to sell or to alter in any way the character of the trust. How then could persons not having any right in the property clothe the court with the power to order a sale of the trust estate ? Such power, under the Act of 1853, can only be conferred by the petition “of any trustee, guardian or person interested.” But the interest of the petitioners for the sale complained of nowhere appears. It is true, that in the petition is found the name of “Jacob Kepple,” who is alleged to be the only surviving member of the council of the “ Old Brick Church.” But as there was no such council after the dissolution of the societies, I do no,t see how he could continue to be a member of a body that had ceased to exist, or even were it in existence, how he alone could assume to exercise the powers of that bod}r. Now, we need hardly sa)r, that in a transaction of this kind, the jurisdiction must affirmatively appear, and that by the record, for the court gets such power only from the petition of some “ person interested,” and without such petition the proceedings are coram non judice.

That the exceptants are parties in interest, and can, therefore, sustain the present bill, has been settled by the finding of the Master. He reports “ That a number of the petitioners to rescind, either belonged to the congregations that worshiped at the ‘ Old Log ’ and ‘ Old Brick ’ churches, or have relatives buried in the graveyard who did worship there.” Thus, undoubtedly, their interest is sufficient to clothe them with the right to see that the trust is preserved.

The decree of the Court of Common Pleas is now reversed and set aside at the costs of the appellees; and it is further ordered, that the previous order of sale be annulled, and the deed surrendered for cancellation.