dissenting (Ladner, J., concurring), June 24, 1940. — With the conclusion of the majority of the court on the first exception, namely, that the German-town Relief Society has standing to take exceptions to the adjudication, we are in accord. The question merits a more extended discussion. In opposition to the conclusion that the society has such standing may be cited the general rule that an action for the enforcement of a charitable trust must be brought by the Attorney General, and cannot be maintained by those who, have no special interest therein: A. L. I. Restatement of Trusts, §391, comments (c) and (d); 2 Bogert, Trusts and Trustees (1935), sec. 414; 3 Scott on Trusts (1939), sec. 391.
This rule is based upon the historical fact that in England like actions were usually brought by the Attorney General for the reason that trustees would be unduly harassed if subject to an action by any having possible beneficial interest. Per contra, any member of the class may maintain a suit for the enforcement of a charitable trust created for the benefit of a small class of persons. In many cases, prior to the Statute of Charitable Uses of 1601, 2 Eng. Stat. at L. 708, the suit was brought by the Attorney General; in many others by third persons. These cases indicate a tendency of the courts to relax the *21rule requiring the interested parties to be represented by the Attorney General.
The record indicates that the class in the present case is small. Manifestly, the restricted area within which the beneficiaries must be situate, and the limited scope of their corporate activities, confine the beneficiaries to a small number.
The statutes of Pennsylvania disclose a legislative policy which sustains the right of the Germantown Relief Society to file exceptions to the adjudication. The Act of February 17,1818, 7 Sm. L. 43, sec. 1, 20 PS §2874, provides that any person interested in the due execution of a charitable trust may apply to the Supreme Court of this' State, in the event of neglect or abuse by the trustees, for their removal from the trust. The act has been repealed, so far as it relates to testamentary trusts, by the Fiduciaries Act of June 7,1917, P. L. 447, which confers like authority upon the appropriate orphans’ court for the removal of a delinquent fiduciary of a charitable trust upon application of “any person interested.” It is not required that the action to remove the trustee be brought by, of with the consent of, the Attorney General: Fiduciaries Act, supra, secs. 54, 53(a) 7, 53(b), 20 PS §§921, 927, 930.
In the present case the Germantown Relief Society is a “person interested” within the meaning of the Fiduciaries Act, capable of bringing an action to remove the trustee on the ground of improper distribution of income to an object not within the specified class. No less, the society has standing to except to an adjudication awarding the income to specified institutions.
From the conclusions of the majority upon the other exceptions we dissent. Those exceptions relate to the finding of the auditing judge that the Whosoever Gospel Mission and Rescue Home is within the purpose of testator’s will; that the use of the word “or” in the phrase “religious or sectarian” should be construed, “that is to say”; that, while the charter of the mission lays equal *22emphasis upon the dissemination of Christian religion and the alleviation of humanity by providing employment, meals, lodging and clothing, the institution is absolutely nonsectarian in character.
The precise question to be determined is whether the executors have abused their discretion in including the Whosoever Gospel Mission and Rescue Home among the objects of testator’s benevolence. The will provides that the executors shall use their discretion in the matter of the amount to be distributed to each of the societies. This involves discretion as to whether a society receive anything or nothing. Therefore, the exact issue to be determined is not whether the society is religious or sectarian, but whether the accountants have abused their discretion. The abuse must be manifest.
The auditing judge, in our opinion, was correct in his finding that the distribution of part of the income to the Whosoever Gospel Mission and Rescue Home was within the purposes of testator’s will, and that the trustees did not abuse their discretion in making such payment.
We consider that the evidence before the auditing judge justifies the conclusion that no such abuse of discretion exists, and that the testamentary prohibition, “None of said monies shall be paid to any religious or sectarian societies”, has not been violated. We think he was right in holding that the predominating purpose of the Whosoever Gospel Mission, as conducted, is the administration of charity in the way of finding employment, meals, lodging, clothing, and assisting the destitute. The fact that services of a religious nature are held at the mission does not vitiate the society according to the intent of testator. From the evidence it does not appear that he was a militant atheist. Whatever may have been his motive in making the provision of his will in question, the holding of religious services would not place the institution beyond the pale of his benevolent intent.
In the briefs in support of the exceptions, and against them, Collins v. Kephart et al., 271 Pa. 428, is cited and *23discussed at length. Since there is no reference to this case in the adjudication, it may be assumed that it was not brought to the attention of the auditing judge. In the opinion of Chief Justice von Moschzisker, it is related that the proceeding involved a construction of article III, see. 18, of the Constitution of this State, which provides that “No appropriations . . . shall be made for charitable, educational or benevolent purposes, to . . any denominational or sectarian institution”. In construing this phrase, the opinion of the court holds (p. 434) : “that no public moneys could be appropriated, lawfully, to institutions other than those entirely unconnected with any of the various religious sects or denominations”. Five institutions in different parts of the State were under consideration and were held to be within the prohibited class. A basis for the exclusion is that the property and management of the institution were controlled by a corporation, required to be composed of members of a certain church; another, because the membership was confined by its charter to the rector, churchwardens and vestrymen of a certain church; and the Jewish Hospital of this city because the organization which owned and controlled its property was confined to members of the Jewish faith, although the medical and hospital staff were not confined to those of that faith, and the majority of the patients were not of that faith.
The Whosoever Gospel Mission is managed by a board of 15, elected by contributors in the sum of $50 annually, or more. Eligibility to vote for the management, and to serve as a member of the board, is not dependent upon affiliation with any particular sect or denomination; nor, indeed, is a manager or a voter or a contributor required to have any religious convictions whatsoever. The present case is, therefore, widely different in its management and control than were the five which were included in the case cited.
The corporate purposes of the Whosoever Gospel Mission are three, stated conjunctively. The first, the dis*24semination of Christian religion, is wholly religious. The third, conducting charitable work, is wholly secular. The second, “conducting practical and useful religious temperance” is two thirds secular and one third religious. The notes of testimony show that the religious services of the mission are conducted by visiting pastors and by voluntary speakers. Apparently, no payments were made to such persons. Thus, with the possible exception of the expense involved in furnishing facilities for these services, the revenue of the mission is wholly spent for secular purposes.
The meaning of the second corporate purpose, “conducting practical and useful religious temperance”, is probably exhortation to total abstinence from liquor, for practical, useful, and religious reasons.
We cannot concur with the opinion of the majority of the court that the case is to be controlled by the principle that a corporation cannot be heard to say that it is exercising any powers other than those conferred upon it by its charter. In the instant case, the Whosoever Gospel Mission is admittedly exercising powers conferred by its charter, and the question is whether its character is to be determined in the light of the powers which it exercises, or in the light of those which it does not. We are disposed to be more liberal in determining the character of a corporation organized for charitable purposes that in the case of one conducted for profit. The nature of the operations of the corporation is, in our opinion, to be given the greatest weight. Furthermore, a distinction exists between the present case and the more usual instance of an absolute award of a principal sum to an institution. Here is involved discretionary distribution of income from time to time. A society, which is presently eligible, may at a future date be otherwise, through change in the manner in which it is conducted, and vice versa.
We, therefore, dissent from the conclusions of the majority of the court, and hold the opinion that the exceptions to the adjudication should be dismissed.