J-S23001-18

                            2018 PA Super 138

 IN RE:TRUST CREATED UNDER THE          :   IN THE SUPERIOR COURT OF
 WILL OF WILLIAM J. COHEN DATED         :        PENNSYLVANIA
 OCTOBER 18, 1946 IN RE:TRUST           :
 UNDER AGREEMENT OF WILLIAM J.          :
 COHEN DATED FEBRUARY 24, 1947          :
                                        :
                                        :
 APPEAL OF: BIBLE PRESBYTERIAN          :
 CHURCH OF CHESTER                      :   No. 2887 EDA 2017



               Appeal from the Order Entered August 9, 2017
    In the Court of Common Pleas of Delaware County Orphans’ Court at
                            No(s): 0274-2017


BEFORE:   SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

OPINION BY SHOGAN, J.:                                FILED MAY 25, 2018

     Bible Presbyterian Church of Chester (“Bible Church”) appeals from the

order entered August 9, 2017, in the Court of Common Pleas of Delaware

County, overruling its objections to the cy pres petition of Crozer-Chester

Medical Center, Inc. (“CCMC, Inc.”). We affirm.

     The orphans’ court provided the following summary of this case:

           On August 7, 2017, this court convened a hearing to dispose
     of a cy pres petition arising from a Trust created under the
     residuary clause of the Will of William J. Cohen dated October 18,
     1946 and of the Trust Agreement of February 24, 1947 [“Cohen
     Trust”]. The designated Trust beneficiaries (Third Presbyterian
     Church of Chester, [Bible Church] (also located in Chester),
     Church of the Open Door (located on York Road in Philadelphia)
     and Chester Hospital) were to split equally the net income derived
     from the residue of the decedent’s estate.

           The matter came before this court based upon a Petition of
     CCMC, Inc. formerly known as Crozer-Chester Medical Center
     [s]eeking [r]elief [p]ursuant to the Doctrine of Cy Pres. By way

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S23001-18


     of background, CCMC, Inc. was the late operator of Crozer-
     Chester Medical Center which, in turn, based upon an adjudication
     of the court back in 1964, succeeded to the interests of Chester
     Hospital. Over the intervening years, CCMC, Inc., acquired
     interests in other medical facilities around Delaware County. Most
     recently, effective on or about July 1, 2016, a sale of the assets
     of CCMC, Inc., to a for-profit entity, Prospect Health, resulted in a
     reincarnation of a non-profit, Crozer Chester Foundation into
     Crozer Keystone Community Foundation (“CKCF”) which is now
     using the former’s tax identification number. At the same time,
     CKCF absorbed Delaware County Memorial Hospital Foundation.
     CKCF was identified as the principal recipient of the proceeds from
     the asset sale.

                                    * * *

     The issue presented for disposition derives from the changed
     circumstances. Chester Hospital, one of this trust’s original
     beneficiaries has long been in the rearview mirror. But the vision
     of the deceased was carried forward through CCMC, Inc. The cy
     pres petition seeks to allow CKCF to continue the legacy of Chester
     Hospital and CCMC, Inc.

                                    * * *

     However, while two of the three other beneficiaries of the Cohen
     Trust posed no objection to the cy pres petition, one of the other
     Trust beneficiaries, [Bible Church], contested the proposed
     application of the cy pres doctrine which would permit the change
     of beneficiary to the newly created entity, CKCF. Instead, [Bible
     Church] asserted that the termination of the eligibility of CCMC,
     Inc. to receive the largesse from the Trust constituted a lapse
     thereby requiring the Trust to divide the one-quarter share
     originally allocable to Chester Hospital, among the other three
     entities.

Orphans’ Court Opinion, 11/20/17, at unnumbered 1, 2. The orphans’ court

overruled Bible Church’s objections and granted the cy pres petition, thereby

allowing CKCF to receive the one-quarter share of net income originally

allocated to Chester Hospital in 1946 and 1947 and distributed to CCMC, Inc.


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since 1964. Bible Church appealed.             The orphans’ court and Bible Church

complied with Pa.R.A.P. 1925.

       Bible Church states the questions involved as follows:

       1) May the court award a residuary share in trusts to an
          independent charitable corporation with different functions
          rather than to the remaining residuary beneficiaries when the
          charity originally named as one of four residuary beneficiaries
          no longer qualifies to receive such funds?

       2) Did the Trial Court err in granting the Petition Seeking Relief
          Under the Doctrine of Cy Pres and modifying the Trust to
          provide that the bequest to Chester Hospital now may go to
          [CKCF] rather than the remaining beneficiaries[?]

Bible Church’s Brief at 8.1

       Well-settled standards guide our review.         “When reviewing a decree

entered by the [o]rphans’ [c]ourt, this Court must determine whether the

record is free from legal error and the court’s factual findings are supported

by the evidence.” In re Shoemaker, 115 A.3d 347, 354 (Pa. Super. 2015)

(quoting In re Estate of Whitley, 50 A.3d 203, 206 (Pa. Super. 2012)

(citation omitted)).     Because the orphans’ court sits as the fact-finder, it

determines the credibility of the witnesses, and on review, we will not reverse

the orphans’ court’s credibility determinations absent an abuse of discretion.

Id. at 354–355 (citation omitted). “However, we are not constrained to give

the same deference to any resulting legal conclusions.” Id. at 355 (quoting


____________________________________________


1 We remind counsel that chapter twenty-one of our appellate rules, which
governs appellate briefs, requires that “the argument shall be divided into as
many parts as there are questions to be argued.” Pa.R.A.P. 2119(a).

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Whitley, 50 A.3d at 207 (citations omitted)). “The [o]rphans’ [c]ourt decision

will not be reversed unless there has been an abuse of discretion or a

fundamental error in applying the correct principles of law.”       Id. (quoting

Whitley, 50 A.3d at 207 (citation omitted)).

       Bible Church first argues that the orphans’ court abused its discretion

by awarding Chester Hospital’s residuary share of the Cohen Trust to an

independent charitable corporation with non-hospital functions.                Bible

Church’s Brief at 13.        Specifically, Bible Church contends that, because

Chester Hospital no longer exists and CCMC, Inc. is an ineligible beneficiary,

the residual one-quarter share of the Cohen Trust should have been

distributed equally to the three remaining beneficiaries. Id. at 15. In support

of its position, Bible Church relies on Pennsylvania’s Decedents, Estates and

Fiduciaries (“DEF”) Code, 20 Pa.C.S. §§ 101–8815, specifically, Section

2514(9), (10), and (11).2          Bible Church further argues that Mr. Cohen’s

____________________________________________


2   Those provisions read as follows:

       § 2514. Rules of interpretation

       In the absence of a contrary intent appearing therein, wills shall
       be construed as to real and personal estate in accordance with the
       following rules:

                                          * * *

       (9) Lapsed and void devises and legacies; substitution of
       issue.--A devise or bequest to a child or other issue of the testator
       or to his brother or sister or to a child of his brother or sister



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purposes are not frustrated by the fact that Chester Hospital no longer exists.

Bible Church’s Brief at 16. According to Bible Church:

       what is clear from the Will and Trust under Agreement is that
       Cohen intended the gift to go to four specific beneficiaries. It is
       logical, therefore, and required by Section 2514, that if one of the
       beneficiaries is no longer able to accept the gift the gift should be
       distributed to the remaining beneficiaries equally.


____________________________________________


       whether designated by name or as one of a class shall not lapse if
       the beneficiary shall fail to survive the testator and shall leave
       issue surviving the testator but shall pass to such surviving issue
       who shall take per stirpes the share which their deceased ancestor
       would have taken had he survived the testator: Provided, That
       such a devise or bequest to a brother or sister or to the child of a
       brother or sister shall lapse to the extent to which it will pass to
       the testator’s spouse or issue as a part of the residuary estate or
       under the intestate laws.

       (10) Lapsed and void devises and legacies; shares not in
       residue.--A devise or bequest not being part of the residuary
       estate which shall fail or be void because the beneficiary fails to
       survive the testator or because it is contrary to law or otherwise
       incapable of taking effect or which has been revoked by the
       testator or is undisposed of or is released or disclaimed by the
       beneficiary, if it shall not pass to the issue of the beneficiary under
       the provisions of paragraph (9) hereof, and if the disposition
       thereof shall not be otherwise expressly provided for by law, shall
       be included in the residuary devise or bequest, if any, contained
       in the will.

       (11) Lapsed and void devises and legacies; shares in
       residue.--When a devise or bequest as described in paragraph
       (10) hereof shall be included in a residuary clause of the will and
       shall not be available to the issue of the devisee or legatee under
       the provisions of paragraph (9) hereof, and if the disposition shall
       not be otherwise expressly provided for by law, it shall pass to the
       other residuary devisees or legatees, if any there be, in proportion
       to their respective shares or interests in the residue.

20 Pa.C.S. § 2514(9)–(11).

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Id. at 17.

      In response, CCMC, Inc. contends that Section 2514:

      could not be clearer in its mandate that none of the three
      [sub]sections applies to the Cohen [Trust]. 20 [Pa.C.S.] §2514(9)
      applies only to individuals; §2514(10) applies to bequests which
      are not part of the residuary estate; and §2514(11) applies where
      the disposition in question shall not be otherwise expressly
      provided for by law.        In the Cohen [Trust], the relevant
      beneficiaries are charitable institutions, not individuals, and
      therefore the distribution scheme described in §2514(9) does not
      apply. Likewise, the Cohen [Trust] bequests are residuary, and
      therefore are not subject to §2514(10). Finally, the requirements
      of §2514(11) are also not applicable here, because the Cohen
      Trust bequests are already otherwise expressly provided for by
      law, namely 20 [Pa.C.S.] § 7740.3, which articulates the doctrine
      of cy pres.

CCMC, Inc.’s Brief at 10.

      Agreeing with CCMC, Inc., the orphans’ court rejected Bible Church’s

reliance on Section 2514:

            The cited language offers no grounds upon which the
      objection can be sustained.

             As to the first subsection, the statute is specifically limited
      to individuals—no reference is made to an entity that lacks
      corporeal existence. The second subsection expressly concerns
      itself with “A devise or bequest not being part of the residuary
      estate. . .” By its explicit terms, this subsection does not apply to
      the situation where, as here, the funds sought derive from a
      residuary beneficiary’s portion. In contrast, the last subsection’s
      application to residuary beneficiaries is unquestionable. However,
      the statute (like the previously referenced subsections) contains
      verbiage (“... and if the disposition shall not be otherwise
      expressly provided for by law, …”) which subjugates these
      subsections to the cy pres statutory provision. [Bible Church’s]
      argument finds no foundation in the law it presented.

Orphans’ Court Opinion, 11/20/17, at unnumbered 3.


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      We agree with the orphans’ court that Bible Church’s reliance on

Subsections 2514(9)–(11) is misplaced.        In the context of a devise or a

bequest, Section 2514 identifies the meaning of “heirs” and “next of kin” as

follows:

             A devise or bequest of real or personal estate, whether
      directly or in trust, to the testator’s or another designated person’s
      “heirs” or “next of kin” or “relatives” or “family” or to “the persons
      thereunto entitled under the intestate laws” or to persons
      described by words of similar import, shall mean those
      persons, including the spouse, who would take under the
      intestate laws if the testator or other designated person were to
      die intestate at the time when such class is to be ascertained, a
      resident of the Commonwealth, and owning the estate so devised
      or bequeathed. . . .

20 Pa.C.S. § 2514(4) (emphasis supplied). Bible Church’s logic would prevail

if the beneficiaries were Mr. Cohen’s heirs and next of kin, because a charitable

organization is not a person who would take under the intestate laws of

Pennsylvania.    See 20 Pa.C.S. § 2103 (setting forth order of intestate

succession to other than surviving spouse).        Therefore, contrary to Bible

Church’s interpretation, Subection 2514(9) does not encompass residuary

bequests or devises to charitable entities.

      Logically, Subsection (10) does not apply because the Cohen Trust

benefits charitable organizations and is funded by residuary assets. 20 Pa.C.S.

§ 2514(10). Similarly, Subsection (11) does not apply because it controls

only where other laws do not govern the disposition. 20 Pa.C.S. § 2514(11).

Section 2515 of the DEF Code deals specifically with “[a] devise or bequest in

a will . . . made to the trustee of a trust,” as in the case at hand. 20 Pa.C.S.

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§ 2515. Additionally, as discussed below, Section 7740.3 of the DEF Code

governs property given in trust for a charitable purpose. 20 Pa.C.S. § 7740.3.

Because Section 2514 does not apply to the case before us, Bible Church’s

first issue does not warrant relief.

      Next, Bible Church argues that the orphans’ court abused its discretion

by applying the doctrine of cy pres and awarding CKCF the one-quarter share

of net income originally allocated to Chester Hospital. Bible Church’s Brief at

17. According to Bible Church, because the three church beneficiaries should

receive Chester Hospital’s one-quarter share pursuant to Section 2514, the cy

pres doctrine does not apply to this case.       Id. at 18.   Alternatively, Bible

Church argues that, if a gift to a hospital was a necessary component of the

Cohen Trust, “the doctrine of cy pres would require that the substitute

beneficiary must be a non-profit hospital, not merely a health-related

organization” like CKCF. Id. (emphasis in original). As discussed above, Bible

Church’s premise that Section 2514 governs the disposition of the residuary

share is incorrect. Its claim of trial court error in applying the cy pres doctrine

also is incorrect.

      Pennsylvania has adopted the Restatement (Second) of Trusts § 399 as

the expression of the doctrine of cy pres in the Commonwealth. Section 399

provides as follows:

      If property is given in trust to be applied to a particular charitable
      purpose, and it is or becomes impossible or impracticable or illegal
      to carry out the particular purpose, and if the settlor manifested
      a more general intention to devote the property to charitable

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      purposes, the trust will not fail but the court will direct the
      application of the property to some charitable purpose which falls
      within the general charitable intention of the settlor.

Restatement (Second) of Trusts at Section 399. The Pennsylvania Legislature

has codified this language as follows:

      (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.

20 Pa.C.S. § 7740.3. See also In re Farrow, 602 A.2d 1346, 1347 (Pa.

Super. 1992) (“[I]f the charitable purpose for which an interest is conveyed

shall be or become indefinite or impossible or impractical of fulfillment, ... the

court shall order an administration or distribution of the estate for a charitable

purpose in a manner as nearly as possible to fulfill the intention of the

conveyor....”).

      “In practice, application of the doctrine of cy pres is imprecise but the

endeavor is to find the institution that ‘will most nearly approximate the

intention of the donor.’” Shoemaker, 115 A.3d at 355 (quoting In re Estate

of Elkins, 32 A.3d 768, 778 (Pa. Super. 2011)). “The key is approximating

the express direction of the testator as nearly as possible by transferring the

funds to an institution that the decedent would have wished to receive the


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funds had the decedent been aware of the situation that occurred following

his demise.” Id. (quoting Elkins, 32 A.3d at 778); accord In re Women’s

Homeopathic Hospital of Philadelphia, 142 A.2d 292, 294 (Pa. 1958)

(“[O]nce the applicability of the cy pres doctrine is indicated, the problem

forthwith becomes one of approximating the testator’s express direction as

nearly as possible and without doing violence thereto.” (citation omitted)).

“The only stricture is that the charity must be within the general donative

scheme outlined by the testator.”          Shoemaker, 115 A.3d at 355 (quoting

Elkins, 32 A.3d at 778 (citation omitted)). “[T]his Court employs a highly

deferential standard of review of the orphans’ court’s determination as to

whom should be accorded cy pres beneficiary status.” Elkins, 32 A.3d at 777.

      Bible Church’s position that CKCF is not the appropriate cy pres

beneficiary of the Cohen Trust rests upon a simple syllogism:          Mr. Cohen

intended to benefit a hospital when he created the Cohen Trust, and “CKCF is

not a hospital and is not even like a hospital.”        Bible Church’s Brief at 19

(emphasis in original). Bible Church also submits that “there are at least two

non-profit     hospitals   serving   the    Delaware   County   community—Riddle

Memorial Hospital and Mercy Fitzgerald Hospital.” Id. (citing N.T., 8/7/17, at

21, 38).     Therefore, Bible Church concludes, CKCF cannot be the cy pres

beneficiary.

      We acknowledge that Mr. Cohen expressly intended to benefit a hospital

located in Chester; however, that is not the inquiry before us. At issue is the


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question: Upon what institution would Mr. Cohen have bestowed the benefit

of his benevolence had he known that Chester Hospital failed in its charitable

purpose? Elkins, 32 A.3d at 778. To answer that question, we must examine

Mr. Cohen’s intent in disposing of his assets.

      When interpreting a trust agreement, the intent of the settlor is

paramount, and if that intent is not contrary to law, it must prevail.

Shoemaker, 115 A.3d at 355 (quoting Estate of Nesbitt, 652 A.2d 855, 857

(Pa. Super. 1995)). In order to ascertain the intent of the settlor, the court

must examine: “(a) all the language contained in the four corners of the

instrument[;]   (b)   the   distribution   scheme[;]   (c)   the   circumstances

surrounding the testator or settlor at the time the will was made or the trust

was created[;] and (d) the existing facts.” In re Scheidmantel, 868 A.2d

464, 488 (Pa. Super. 2005) (internal punctuation and citations omitted).

“Furthermore, charitable trusts are favorites of the law because they are in

relief of the public burden, and a gift, even for a specific charitable purpose,

should be liberally construed whenever reasonably possible.” Nesbitt, 652

A.2d at 857 (citations omitted).

      Upon consideration of the pleadings and evidence to determine

Mr. Cohen’s intent, the orphans’ court entered the following relevant findings

of fact and conclusions of law:

             5. That the Attorney General of the Commonwealth of
      Pennsylvania has received notice and has no objection to [CCMC,
      Inc.’s] request;


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                                   * * *

            7. That by reason of the acquisition of Crozer-Keystone
     Health System, including CCMC, Inc., by Prospect Medical
     Holdings, Inc., a for-profit company, effective July 1, 2016, CCMC,
     Inc. is no longer able to be the beneficiary of the [Cohen] Trust,
     and [CCMC, Inc.] will make the most beneficial use of the [Cohen]
     Trust assets, and the use which is most reflective of [Mr. Cohen’s]
     intent in creating the [Cohen] Trust, is to have them used by and
     for the newly formed Crozer-Keystone Community Foundation
     (“CKCF”), an independent 501(c)(3) corporation;

          8. That the doctrine of Cy Pres applies, and, in accordance
     with the terms of 20 Pa.C.S.A. §7740.3(a)(3), CKCF is the
     appropriate substitute beneficiary for CCMC;

           9. That the Anti-Lapse provisions of the Pennsylvania
     [Decedents, Estates and Fiduciaries] Code (20 Pa.C.S.A.
     §2514(10) & (11)), as asserted by [Bible Church], are not
     applicable in the extant circumst[an]ces.

           10. That CKCF’s mission supports healthcare education,
     healthcare-related social services and healthcare initiatives and
     programs in Delaware County and particularly in the City of
     Chester;

           11. That such use of the [Cohen] Trust assets will further
     [Mr. Cohen’s] intent of supporting the health and well-being of the
     residents of Delaware County, and is consistent with the mission
     of CKCF;

          12. That the Trustee is in agreement with the transfer of
     [Cohen] Trust assets to CKCF;

           13. That the Objection posed by [Bible Church] lacks legal
     or factual basis and is therefore OVERRULED;

           14. And that the Trustee of the Trust Under Will of
     October 18, 1946 and of the Trust Under Agreement of
     February 24, [1]947 is directed to distribute the [Cohen T]rust
     assets previously distributable to CCMC, Inc., that is, one-quarter
     of income, including any accrued income, as of and following
     July 1, 2016 to [CKCF].


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Final Decree, 8/9/17, at 2.       The orphans’ court credited the unchallenged

testimony of CCMC, Inc.’s president:

     The court benefited from the credibly presented testimony of
     Ms. Frances Mary Sheehan. She explained the evolution of
     Chester Hospital through CCMC, Inc. and its related institutions.
     Her narrative then offered background on CKCF. She described
     the service area of the foundation as, “…Delaware County, and in
     particular, the Chester community.” When questioned about
     CKCF’s mission, Ms. Sheehan responded:

                 . . . I would say broadly our mission is to
           improve the health of the residents of Delaware
           County. Specifically, our mission is to obviously honor
           the original Orphans’ Court Order from back in June
           of 2016. And I can read that into the record, which is
           to build a better community through the support of
           healthcare education, healthcare relate[d] social
           service, and healthcare initiatives and programs in
           Delaware County.

     N.T. 8/1/17 at 8.

                                         * * *

     Ms. Sheehan offered a clear vision of CKCF’s strategic plan to
     focus on “. . . addressing the needs of our most vulnerable
     citizens . . . the large majority of whom live in the city of Chester
     and its immediate environs.” Moreover, her testimony reflected a
     comprehensive familiarity with federal, state and other health-
     related programs that offer assistance to those in need in the local
     community.

Orphans’ Court Opinion, 11/20/17, at unnumbered 1–2.

     Applying our deferential standard of review, we discern no abuse of the

orphans’   court’s   discretion     in    crediting   Ms.   Sheehan’s   testimony.

Shoemaker, 115 A.3d at 354–355. Applying the factors for determining a

donor’s intent, we conclude the orphans’ court’s determination that CKCF is


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the appropriate cy pres beneficiary rests upon solid ground.          First, the

language contained in the four corners of the trust documents—Mr. Cohen’s

will and his Trust Under Agreement—names as beneficiaries two churches and

a hospital in Chester and a church in Philadelphia. Will, 10/18/46, at ¶ 5;

Trust Under Agreement, 2/24/47, at ¶ 4. The documents do not explain or

describe Mr. Cohen’s donative intent, and no evidence was offered for that

purpose. However, the Cohen Trust language does not include any restrictions

or conditions on use of the charitable bequests to or by the named

beneficiaries. Mindful that charitable bequests are favored, Nesbitt, we draw

a reasonable inference from the Cohen Trust language that Mr. Cohen

intended to provide for the spiritual and physical well-being of the Chester

community and the spiritual well-being of a particular Philadelphia parish.

      Second, the Cohen Trust distribution scheme provides that the four

beneficiaries would equally share the net income. Employing the doctrine of

cy pres to distribute Chester Hospital’s share to a substitute beneficiary

supports this scheme.      In contrast, Bible Church’s narrow approach to

interpreting the extent of Mr. Cohen’s donative intent as applying only to the

four named beneficiaries undermines this scheme. Bible Church’s approach

results in the failed gift passing to the remaining three beneficiaries, ignores

the medical component of the Cohen Trust, and imposes a condition not

otherwise expressed in the trust documents. Compare Nesbitt, 652 A.2d

855 (continuing payment of charitable bequest to hospital “so long as [the


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hospital] exists as a separate institution caring for the sick and injured”); In

re Pruner’s Estate, 162 A.2d 626, 630 (Pa. 1960) (“[T]he doctrine of cy

pres has no application in the instant case, since testator expressly provided

for the reverter upon the failure of the trustees to use the land as a Home.”);

In re Leffmann’s Trust, 105 A.2d 115 (Pa. 1954) (affirming distribution of

income share granted to hospital equally between remaining beneficiaries

where hospital ceased to have “separate corporate existence” required by

trust language).

      Third, the record reveals little about the circumstances surrounding the

testator at the time the Cohen Trust was created.         Apparently, Mr. Cohen

owned property in Chester and created a trust to benefit two local churches,

Chester Hospital, and a church in Philadelphia. Petition of CCMC, Inc. Seeking

Relief Pursuant to Doctrine of Cy Pres, 5/30/17, at Exhibits A and B.

      Finally, the existing facts of record include the ineligibility of CCMC, Inc.

to continue as a beneficiary and the creation of CKCF as a not-for-profit

charitable organization engaged in the funding and provision of health-related

services. Petition of CCMC, Inc. Seeking Relief Pursuant to Doctrine of Cy

Pres, 5/30/17, at ¶ 8; N.T., 8/7/17, at 6–7. CKCF’s past and current activities

include the following:

      fundraising which allow[s] for breast cancer screenings,
      predominantly in Chester but also elsewhere in Delaware County;
      the allocation of funds to support the financial needs of cancer
      patients, those in need of home health services or hospice care;
      operation of the County’s Women’s Infants and Children Program
      (intensive nutrition for mothers, infants and children up to age 4)

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      also offered mainly in Chester and the Nurse Family Partnership
      Program (health services to pregnant women and babies); drug
      and alcohol addiction prevention programming; Healthy Start
      program (home visiting program to assist low income women,
      babies and toddlers); fundraising efforts to underwrite other
      programs to support healthcare services to the needy residents in
      Chester and its vicinity; as well as other programs. Many of these
      programs operate from a physical facility located in Chester.

Orphans’ Court Opinion, 11/20/17, at unnumbered 2; N.T., 8/7/17, at 8–11.

Additionally, the Attorney General does not object to naming CKCF as a

substitute beneficiary.   Petition of CCMC, Inc. Seeking Relief Pursuant to

Doctrine of Cy Pres, 5/30/17, at Exhibit F. As for the two non-profit hospitals

that Bible Church proffers as substitute beneficiaries, while they are in

Delaware County, neither of them is in the City of Chester; CKCF, on the other

hand, is located in the City of Chester. N.T., 8/7/17, at 12, 21.

      Reiterating that the testator’s intent is paramount and charitable

donations are favored, we conclude that the relevant factors support the

orphans’ court’s interpretation of Mr. Cohen’s bequest to Chester Hospital as

based on a desire to support the health and welfare of the Chester community.

The orphans’ court considered the significant number of health-related

programs and services supported by CKCF for Chester mothers, infants,

toddlers, drug and alcohol addicts, low-income residents, and cancer patients,

along with other relevant factors to determine with care what institution

Mr. Cohen would have chosen had he been aware of the present situation.

Accord Farrow, 602 A.2d at 1348 (“[I]n several cases in which the

designated charity was defunct or ambiguously labelled in a testamentary or

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trust document, and the court applied the cy pres doctrine, the lapsed share

did not go to any of the named beneficiaries, but to a charity not mentioned

in the will or trust but which most nearly approximated the intention of the

donor.”).

      Furthermore, mindful that we employ “a highly deferential standard of

review of the orphans’ court’s determination as to whom should be accorded

cy pres beneficiary status,” Elkins, 32 A.3d at 778 (citation omitted), we

discern no abuse of the orphans’ court’s discretion in determining that CKCF

is within the general donative scheme outlined by Mr. Cohen. CKCF performs

a variety of functions designed to support healthcare education, healthcare-

related social services, and healthcare initiatives to promote the physical well-

being of Chester residents.     The fact that CKCF is not a hospital does not

mandate reversal of the orphans’ court when one considers that Mr. Cohen

did not impose a condition on his bequest as to how Chester Hospital was to

spend the funds. This omission supports a logical inference that Mr. Cohen

was primarily concerned with the provision of medical services rather than the

functioning and maintenance of the hospital itself. Cf. Elkins, 32 A.3d at 780

(“Mr. Elkins specifically delineated that his money not be used to pay for any

hospital structure. This language supports the orphans’ court’s conclusion that

Mr. Elkins was primarily concerned with the provision of medical services

rather than the hospital building itself.”).




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      Having thoroughly reviewed the certified record, the parties’ arguments,

and the orphans’ court’s analysis, we conclude that the orphans’ court did not

override or misapply the law or exercise its judgment in a manifestly

unreasonable manner and that its ruling did not result from partiality,

prejudice, bias, or ill will.   Elkins, 32 A.3d at 781.   Finding no abuse of

discretion, we affirm the order of the orphans’ court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/18




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