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April 29, 1952

GRAFF et al.

The opinion of the court was delivered by: MATTHEWS

The Percy Metzger Memorial Presbyterian Fund, a corporation, as trustee, petitions for an order determining that it is not required, annually or otherwise, to file with this Court for its approval after audit by its Auditor an account and report portion of which reads:

'(a) A fiduciary charged with the care or administration of property, appointed by the Court or required to file bond with it for faithful discharge of his trust, or otherwise acting under the authority, supervision or direction of the Court, shall account and report as herein provided, unless -aid fiduciary be acting under the probate branch of the Court.'

 Opposing the petition is the United States and the Attorney General of the United States representing as parens patriae the unknown beneficiaries of the charitable trust established by the will of Percy Metzger, deceased, which was admitted to probate December 4, 1924.

 The contention of the United States is that after 27 years the charitable plan of Mr. Metzger has not been executed; that it is doubtful if his precise plan can ever be carried out, and that the Court should require accounts and retain the cause for the purpose of applying the cy pres doctrine, or affording guidance and direction of the trustee in and about the administration of the trust. Further, the Government insists that relieving the trustee from further accounting would sever 'the last contract between the trustee and the public.'

 By the will several individuals were named trustees of the trust but pursuant to the will they formed a corporation to act as trustee and that corporation is the petitioner here. The corpus of the trust amounts to a little under $ 100,000.

 Mr. Metzger's will contemplated the establishment and maintenance of a fund 'which from the increment (and not a penny from principal)' was to be used to 'create, establish and maintain a Hospital for the care and succor of crippled children, and the sick and injured of persons, of the Caucasian race resident and citizens of the District of Columbia, and where unable by reason of adversity in life not occasioned by their own fault such care and succor may be had without cost. * * *'

 As long ago as December 28, 1927, Judge Bailey, of this Court, held that Mr. Metzger's will created a valid charitable trust but said in part:

 'If it should later appear that the income alone should not be sufficient, if accumulated for a reasonable time, to accomplish the purposes of the testator in the particular manner prescribed by him, I think that the court, upon proper proceedings, would have the power to have the same charitable purposes carried out in some more practicable manner.'

 On appeal Judge Bailey's decision that a valid charitable trust had been created by Mr. Metzger was upheld. Graff v. Wallace, 59 App.D.C. 64, 32 F.2d 960, 962. But the Court of Appeals was then not in accord with Judge Bailey's ideas as above expressed as at the time it regarded the cy pres doctrine as not in force in the District of Columbia, however, the appellate court later recognized that the doctrine of judicial cy pres is in force in this District. Noel v. Olds, 78 U.S.App.D.C. 155, 160, 138 F.2d 581; Shoemaker v. American Security & Trust Co., 82 U.S.App.D.C. 270, 163 F.2d 585. Despite these holdings and the fact that the purpose of the testator in the manner prescribed by the will has not been accomplished, still the trustee has made no effort to obtain a determination from the Court for carrying out the testator's purpose in some more practicable manner. In short, nothing has yet been done toward applying any funds of this estate to any charitable purpose whatever.

 Moreover, a careful examination of the record in this case, as hereinafter indicated, has raised grave doubt in the mind of the Court as to whether the trustee is properly administering this trust.

 'It is further stipulated and desired that if by the emergencies and vicissitudes of life either D. Irving Coakley, Nellie L. Coakley, or Grace Coakley their daughter be reduced in circumstances to such extent that they or either of them has not sufficient to support him or her, then an allowance shall be made out of the increment of my estate to make them comfortable in old age or disease during their natural life, *fn1" and decent burial afforded them, this benefit shall also be extended to Mrs. Dalton, wife of George A. Dalton, and if the increment of my estate shall not be sufficient to cover such outlays, let what there is be used to the extent of seventy-five per cent of such increment, but it is understood and enjoined upon the trustee that there shall always remain out of the increment twenty-five per cent which said remainder or more every three months shall be added to the corpus of the estate and not taken away after such addition * * *'. (Emphasis supplied.)

 The ultimate charitable intention of the testator is clear, and it is equally clear that in no event was more than seventy-five per cent of the income to be used, the remaining twenty-five per cent to be added to the corpus of the estate every three months and to remain a part thereof. Nowhere, however, has the Court been able to find that the trustees or any of them in their accounts complied with the injunction of the testator regarding the twenty-five per cent provision. Indeed it is not apparent that any income has ever been applied to enlarge the trust corpus as the testator directed.

 Furthermore, if the administration of this trust in the future is to be as in the past the result will be the thwarting of the charitable purpose of the testator. This is because the charitable purpose must be wholly financed from income and the officers of the corporate trustee are distributing to themselves for so-called 'salaries' and 'office rent' so much of the income that they are the actual beneficiaries of the trust instead of crippled children as the testator intended. In this connection a detailed ...

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