James's Estate

There can be no doubt that the present accountan as trustee, is vested with a certain discretionary power to distribute the estal in accordance with the directions contained in the fifth codicil to the will t the testatrix. This codicil expressly refers to the successors of the executoi and trustees, but, aside from this, we may refer, in addition to the cases cits by the Auditing Judge, to Kershaw’s Estate, 27 Dist. R. 659, and Anderson Estate, 269 Pa. 535.

A discretion being thus vested in the accountant, by which it has been exe: cised, it would, in the usual case, be necessary for an exceptant to show th; this discretion has been abused, in the technical legal sense of the term; bi the will in this case confers a discretion which is not absolute in terms, ina much as the testatrix expressly says that the selection of the beneficiaries “ subject to the approval of the Judges of the Orphans’ Court who will plea; see that it (meaning her estate) goes for the benefit of poor young girls ■ enable them to maintain their virtue rather than to reformatories for the restoration after they have fallen.” This appears to us to cast an affirmatih duty upon the judges of this court. It is not enough for us to be satisfied th; the trustee has not abused its discretion; we are required to approve its exe cise. It may be that were we required in the first instance to select the fr institutions best qualified to carry out the beneficent intent of the testatri we might have selected those represented by some of the exceptants, or pe haps others that have not appeared. But the primary duty of selection h; been, in our opinion, conscientiously exercised by the trustee, to which belongs, and this exercise of its discretion is entitled to great weight, esp daily as it has been approved by the Auditing Judge in his careful adjudic tion. Our approval of the institutions so selected is a continuing duty, and tl *643future alone can determine whether other institutions would be better able to carry out, in a satisfactory manner, the special purpose of the charitable and beneficent provisions of the fifth codicil; so, in confirming the adjudication, we add to it that each of the distributees shall keep and specifically administer the moneys so awarded to them as a separate and distinct trust, and that each of them shall, at the expiration of three years, file its account in order that the court may then determine whether the trust has been fulfilled in the manner intended by the testatrix. To this extent the adjudication is modified.

All exceptions are dismissed and the adjudication, as modified, is confirmed absolutely.