Funck's Estate

Citations

• 16 Pa. Super. 434
• 1901 Pa. Super. LEXIS 90

Syllabus

<p>Trusts and trustees — Charitable use — Burial ground — Sale.</p> <p>Where a testator devises a burial ground in which his ancestors are buried to his son “ and his heirs in fee in trust and for the use of a burial ground forever,” and provides a fund, the income of which is to be used in keeping the burial ground in repair, and further directs that all of his relatives shall have the privilege of burial in the burial ground free of cost, the estate acquired by the son is a fee simple, in trust for a charitable use, and not a base fee subject to a condition.</p> <p>When in the course of time such a burial lot becomes surrounded with blast furnaces, cinder banks, ore roasters and quarries, and all of the bodies have been removed, the orphans’ court may, under the Act of April 18, 1853, P. L. 503, order a sale of the land; but the proceeds of such sale can be devoted only to the purpose of the purchase of another place of burial to be held for the same uses.</p> <p>Trusts and trustees — Sale under the Act of April 18,1853, P. L. 503.</p> <p>In all cases where the immunity or exemption referred to in the concluding sentence of the 1st section of the Act of April 18, 1853, P. L. 503, inheres in the title or estate itself, involving rights which would conflict with the interest decreed to be sold, and would, therefore, be impaired by the sale, the protection of the proviso may be interposed with effect; but where there is no immunity from sale intended as a protection of the estate itself, and it is but a mere want of power in the person or party who holds it, and no independent interest would suffer by the conversion, the law intended to confer the power upon the court to order a sale.</p> <p>Trusts and trustees — Sale under the act of April 18, 1853 — Discretion of court.</p> <p>• The appellate court will not review the discretion of the orphans’ court in ordering a private sale of land under the act of April 18, 1853, to a person who agrees to pay $300, together wit