Estate of Smith

Will — Charitable bequest. The purpose and object of a gift in a will, and not the motive of testator, determines its character as religions, charitable or otherwise. Wills— Charitable bequest — Perpetuities. Gifts in a will of $500,000 for the erection of a memorial monument or arch in a public park, $50,000 for the construction of a children’s playhouse and grounds, and, the residue of the estate in trust to apply the income thereof to the maintenance and preservation of such structures and grounds forever, are valid charitable bequests, and do not violate the law against perpetuities; and it is immaterial that the testator has directed that a bronze statue of himself with his name underneath in large letters shall be placed upon the memorial, and that a mural tablet shall be placed in tlie playhouse with an inscription to the effect that the house was erected by testator and his wife in memory of their son.

Appeal, No. 581, Jan. T., 1896, by Benjamin E. Walker, from decree of. O. C. Phila. Co., Oct. T., 1895, No. 334, dismissing exceptions to adjudication. Exceptions to adjudication. The material portions of the will were as follows; “ First. — To erect and cause to be erected in the Fairmount Park, in the city of Philadelphia, under the auspices of the Fairmount Park Art Association (provided the assent of the proper authorities be obtained therefor), a monumental memorial in accordance with the design and model therewith, prepared by James H. Windrim, architect, the same to be built under his superintendence, of a granite to be selected by said architect. For his services, I direct that he shall receive as compensation, five per cent upon the- expenditure .for its erection and completion, or, if he be not living, his son John T. Windrim, I next designate to be employed in like manner and in his father’s stead to complete the said works in all particulars ; or, if he be not living, by such architect as the said trustee may select, who will continue to complete the erection of the said monumental memorial in strict accordance with the original design. The model of said design I have approved, and the same is placed in the safe keeping of the Fidelity Insurance, Trust and Safe Deposit Company, photographs of which I have approved by my signatures thereon. The said memorial is to include equestrian statues in bronze of Major-Generals George B. McClellan and Winfield S. Hancock and colossal statues in bronze of Major-Generals George G. Meada and John F. Reynolds; the niches in the right and left wings of the design to have pedestals to receive bronze busts of the following distinguished Pennsylvanians, namely: Governor Andrew G. Curtin, Major-General John F. Hartranft, Admirals David D. Porter and John A. Dahlgren, General James A.. Beaver, Major-General S. W. Crawford, and in addition thereto the Architect James H. Windrim and my executor John B. Gest. A mural tablet in bronze will be placed upon the pedestal stage of one of the main columns with the inscription. ‘ This Monumental Arch presented by Richard Smith, Tjqpe Founder, of Philadelphia, in memory of Pennsylvanians who took part in the Civil War, whose strife was not for aggrandizement, but when conflict ceased, the North with the South united, again to enjoy the common heritage left by the fathers of our country, resolving that thereafter all our people should dwell together in unity.’ “ Upon the pedestal stage of the other main column will be placed upon a bracketted rest, on the right of the entrance front, a statue of myself, in bronze, and underneath, the name Richard Smith, in large letters. The central part of said memorial to be for a carriage way, and on either side passages for pedestrains. And I direct that the entire expense of the memorial, and the erection and completion thereof, shall not exceed five hundred thousand dollars (1500,000). “ Second. — Provided, the assent of the proper authorities be obtained, to appropriate, lay out and_expend the sum of fifty thousand dollars (50,000) in the erection of a proper building and enclosing a children’s playground, in such portion of Fair-mount Park as may be designated by the Park Commissioners, the said building to have a general hall as a play-room, and shelter with a connecting building provided with all necessary appliances for the safety and comfort of such children as may be brought there, seeking recreation, by parents, guardians or other caretakers, with chambers, Avith cribs and couches for them in case of sickness, and all proper nurses and attendants as may in the judgment, or with the approval of said trustee be thought to be needful. I would prefer that male children over ten years of age be excluded from said playground and building, so that it may be safely used for the recreation of the young. The building herein provided to be erected must contain a mural tablet in bronze with the inscription lettered thereon ‘ Erected by Mr. and Mrs. Richard Smith in memory of their son Stanfield Smith.’ The number of acres to be enclosed I leave to the discretion of said trustee and the said Park Commissioners. And all the residue and remainder of my said estate I direct to be kept well invested by the said trustee, and that the income thereof shall be appropriated and paid by them, from time to time for the maintenance, repair and caretaking of the said monumental memorial and the said children’s play house and ground attached thereto, and the adornment thereof, so that the same shall be constantly maintained in good order and condition : and in case the said income be more than sufficient for these purposes, then I authorize the expenditure of the surplus in the erection and maintenance of such additional buildings as in the judgment of my said trustee and the Commissioners of said Park may be deemed necessary.” The appellant who claimed to be a half brother of Mrs. Sarah A. Smith, appeared and raised the question that the gift for the monumental arch was not a charity, and therefore the bequest to keep the same in repair and good order was void, because it violated the rule against perpetuities. The auditing judge, however, was of opinion, and so adjudicated, that the will of the testator created valid charities, and that even if they should fail by reason of the refusal of the proper authorities to permit the erection of the structures, a cy pres application should be made under the acts of assembly relating to the subject. Errors assigned were in dismissing exceptions to adjudication.