*1
remain
and unattainable.
no easement can
Therefore,
begin
highway,
such as
at the
cross defendants’
would
point
de
at
from
terminate
the entrance
fields,
right
fendants’ fields to
defendants’ woodland. Such
”5
contemplated
way
never
or created.’
was
prescriptive right
de
In
over
Trexler, therefore,
conclusively
land
statute.
fendant’s
defeated
purpose
being
for
defeated,
which was claimed
right
the entire
was defeated. No
situation exists
such
plaintiff
here. The chancellor found that
established
right
through
his
to an
easement
land
defendant’s
that the
ac
easement has
still
useful
been,
is,
cess
the dominant tenement. There
no evidence
portion
objected
that use of the Delaware
was ever
contrary
or denied
leads to
conclusion
and,
indeed,
рermis
use of
the road Delaware
at
was,
least,
presently
In
sive.
Woodlawn
Dela
addition,
owns
property
obviously
property
ware
and can
use that
making the easement over defendant’s land beneficial
Baptist
to. the dominant tenement
created
1820. See
alley Urquhart,
Church in the
V
v.
Great
Decree affirmed. Each
own costs.
Mr. Justice Jones and Mr. Justice Cohen dissent.
Superior
5 180 Pa.
Ct
Baum Estate. *2 Mus- J.,O. Before 1965. March 23, Bell, Argued Boberts, O’Brien Eagen, Cohen, Jones, manno, JJ. with Deputy Attorney General, Gafford, J.
Francis Counsel, and Walter E. him Ales- Jr., Brew, J. Eugene ap- for Commonwealth, General, sandroni, Attorney pellant. Enoch, O. Walter Filer, him
William J. Kelly, appellees. G. Shreve, Dаrt, Lyman A. Jr. and 1965: June Opinion Eobeets, Me. Justice be- validity appeal This involves days than in a executed less contained will quests without on May Testatrix died before death. last executing her after or next of nine kin, days heirs im- in her In 1958. dated will she of September mediately preceding three shares to equal estate in bequeathed *3 by drawn charities. Both wills were designated of identi- gifts contained charitable attorney and charitable of to the same named the residue cal shares purpose. for the same beneficiaries April of of upon the execution her Immediately will to her requested attorney-scrivener testatrix This of her earlier 1955 will. up signed copy tear in presence presence in her attorney did, had will. person who witnessed the new of another of her an idеntical carbon 1955 will which However, the revoked prepared simultaneously had been by attorney. retained copy was signed statutory its as asserting right The Commonwealth, of the Intestate claimed 3(6) Act,1 Section heir under estate contending the entire itself, to the charities contained in testatrix’s last gifts effect because made of no within 30 days were death.2 testatrix’s 80, §3(6), amended, 1¡. P.
1 Act of 20 P.S. §1.3(6). disheаrtening indeed to discover the is Commonwealth as It contrary to serting the welfare of this in interest charities
The court below held that the undisputed record facts placed the case within the exceptions to the 30- rule day in contained the Wills Act,3 ease, particularly light long-existing intention charitable manifested this testatrix. philanthropy during year American 1963 exceeded ten bil lion dollars. Thеse individuals, contributions came from business enterprises testamentary bequests, approximately half public contributed health, sum was used for causes such as educa Giving (1964 ed), published tion and pp. 10; welfare. U.S.A. Fund-Raising Counsel, Inc., the American Ass’n of N.Y. There appears Pennsylvania little doubt that ratio contributions population important to the national total exceeded the ratio. The giving is fact this makes substantial funds relief available governmental obligations of the Commonwealth’s in areas of so Surely, society’s stage cial concern. to human this dedication strong, welfare, pause we need not to recall the Commonwealth’s very policy its consistent broad of assistance to charities and encouragement long manifested to its citizens and businesses a Com It difficult to conceive of make charitable contributions. is public policy or more mean more fundamental monwealth is encouragement policy ingful frequently restated than its public giving interest. charities disappointing mind, policy public With espoused posture antithetical to its in a find the Commonwealth opposed, supported, principles. instead Had Commonwealth example, given, commendable gifts, have it would the charitable reality vitality to the advancement and substantial added *4 constantly properly quite policy it policy, which a desirable own Com regrettable the that instead encourage. indeed It is to seeks objective. In instance, admirable monwealth, a less chose in this support the part Commonwealth of the addition, on the a choice purpose harmony complete with the in have been would charities Underlying policy the of the Act. 7(1) of the Wills of Section protect natural kin and desire provision the thirty day 1), (No. Estate See, e.g., Hartman’s heirs. not appear statute was the would (1936). It 234, 238 Atl. statutory artificially protect created or benefit intended Ihe Commonwealth. such heir §180.7(1). §7(1), Un- 20 P.S. U. P. ofAct legis- designated scarcely mоdel of a be can fortunately the section upon occurrence modified the draftsmanship. shall “Wills be lative and of the gifts. established the charitable validity From this appeals. determination the Commonwealth two the Wills Act of 1947 creates methods which charitable in a will gifts contained executed of death be validated.4 thirty days may method One such if who permits gifts all benefit the be- would of thе charitable invalidity quests agree that shall be valid. second they The method permits such if re- gifts probated the will (a) prior vokes a executed will at least before thirty days (b) “the death, original which can produced be and legible (c) prior the con- condition”, instrument tains identical for the gifts same charita- substantially purposes. undisputed ble It is conditions (a) have been fulfilled (c) this case. Thе issue crucial is whether the carbon prior qualify sheets will “original” as an or requirement under above (b) as the Commonwealth whether, now- contends, only any following circumstances, among (1) of the Death others: Thirty Religious bequest Days; Any Within and Charitable Gifts. religious purposes or devise for or will in a included thirty days or codicil executed within testator the death of the invalidity invalid all shall be unless who would benеfit agree thirty-day period valid. so shall be shall be day computed as to which the will or codicil include day di- and to of death. Unless the testator written exclude supersede otherwise, a will or if such codicil shall revoke or rects thirty days prior tes- or executed before the codicil least a superseded death, not theretofore revoked or tator’s legible condition, produced if each be substantially gift an identical shall contain instrument purpose, gift or religious later will or charitable same give valid; for sub- each instrument shall or if shall codicil legacy purpose religious stantially or charitable cash the same asset, pay- or estate a share share or prior subject condi- immediately estates to identical able gift it shall valid to the extеnt to which tions, shall later gift.” exceed 3, supra. note See
409 prior copy destroyed, ribbon executed the prove pre-existing intent. admitted unquestioned is sheets It that carbon by testa were retained will, which, case, prove continuing attorney trix’s offered the same charitable intention were made at testatrix, typewriter by by strokes same same time, now-destroyed as made the ribbon оf that will. sheets Superior In John 81 Chase, Wanamaker v. Pa. Ct. 201, copies (1923), 203 a the court said: “Where several writing by are at me made the same same time operation regarded origi chanical each to be is as [Citing nal and is other admissible as such cases and authority.].” (Emphasis supplied.) Similarly, in Wer ner v. Hillman Coal & Coke 150 Co., question (1930), involving Atl. 473-74 whether typewritten papers copies originals, сertain were or quoted approval the Court a statement Harmon Territory, (1905). v. 15 Okla. 79 164, Pac. 770 quoted explained passage The court the Oklahoma longhand copy did any believe “a carbon transcript stenographer’s of a official made notes, stenographer himself the time he makes the transcript part copy a is a transaction, copy in ordinarily sense that the word used, any newspapers printed up more than several books press on the same at the same time and from same type copies are of each other.” concept is summarized in Words and Phrases5 heading “Original under the Writing”, which, cites Phillips-Body App. Lewis v. Pub. Co., 18 Ga. (1916), S.E. 177 and Savannah Bank & Trust Co. v. App. 6 Ga. (1809), Purvis, 65 S.E. proposition papers “All that: executed upon typewriter stroke written carbon im- —those (perm. 1940). and Phrases 325 Words ed. *6 410 the stroke as as the receives
pressions,
well
sheet
originals,
the letter
from the
alike
typewriter —are
of the
identity
typewriter
after
stroke
copies may
has been
manifold
established, any
as
in
(Empha
introduced
the case.”
writing
in
v. L.C.
sis
Fire Ins. Co.
supplied.)
U.S.
Furthermore,
Adam Mercantile
117 Okla.
Although recognize we what is it “original” vary according situation, may in that a carbon apparent, nevertheless, may qualify, The fact appropriate “original”. as an circumstances, capable the word is to and “original” subject Annot. 65 such varied definitionаl see treatment, 2d 342 impossible A.L.R. it is (1959), utterly Reference determine its meaning a vacuum. properly made legislative purpose must be to its context and the which the to ac- policy statutory provision seeks complish. purpose general thirty day provision stated “It
our statute has been was consistency. sure that to re reasonably to make testamentary gifts were the result of charity deliberate intent ligion from and were coerced him while testator, condition physical under the influence of the weakened of impending terrors death.” Paxson’s Es doubts Atl. Pa. 70 Prior (1908). tate, Act of 19176 provision the Wills made no what validating bequests made within ever 403, §6, L. 7, 1917, P. of June Act
4ll days unbending thirty of death. It held to be prohibition gifts, clear of such even where was bequests testamentary had that the intent to make such e.g., period. thirty day existed for more than the See, (No. 1), Hartman’s Estate 182 A. (1936) exceptions graphically . It is clear that the set out in of the Wills Act of 1947 were remedy tended to from situation and to remove *7 operation thirty day prohibition of our those cases purpose which did in fall not, reason, of thirty day McGuigen rule. See Pa. 388 Estate, (1957); 131 A. 2d 124 of the Comments Joint §7(1), State Government 20 Comment to Commission,7 рp. P.S. 268. §180.7, light legislative pur
In history of this clear pose, sought it is obvious that what was to be accom plished by requirements the validation involved in this proof case satisfactorily was a form of which would show that the charitable intention of the testatrix ex thirty days. isted for more than Since the we section considering are is remedial in we have nature, held liberally it must be construed in order to effectuate its purpose. McGuigen Estate, 131 A. (1957). 2d 128 “There are times uncertain when wrought words are to consistency unity be into legislative policy with a . . . .” Van Beeck v. Sabine Towing 300 Co., U.S. 57 S. Ct. (1937) J.). “origi This is such a time and ( Cardozo, in
nal”, as used is such a statute, word.
Construing “original” pres- word as used statutory ent compel reality reason context, tous legislative conclude that it was not intention require proof pre-existing of only charitable intent coрy prior executed ribbon revoked, will. This particularly light so of the more usual and rea- provision. which Commission drafted the proof by execution, sonable standards interpretation are operation wills revocation, permitted unrealistic It to be established. would require, Legislature an intention to attribute to the rigid higher standard and more this instance, provision required proof by any othеr than is probate relating or administra- Act wills Wills of decedents’estates. tion that if the carbon sheets
We therefore, hold, “origi- qualify properly they then authenticated, purpose Act. of the Wills for the nals” question the carbon There is no on this record prove her introduced to of testatrix’s 1955 sheets proved satisfactorily were intentions, the same to have been made at the еxact time copy ex- of that will. No doubt strokes as the ribbon anyone’s of this docu- mind the contents ists requisite pre-existing in- ment showed pertinent respects, in all tention. The will was, previously tes- a reaffirmance testatrix’s announced *8 tamentary manifest- charitable an intention intention, September continuously 1955. Under these ed since 27, in- conclude that the sheets we carbon circumstances, require- statutory troduced this case satisfied the bequests in tes- ment and that the charitable contained residuary are valid. The should tatrix’s last will estate to the be distributed charities as directed the decree below. paid by
Decree affirmed. Costs be the estate. Opinion Dissenting Mr. Chief Bell: Justice appeals from Commonwealth The Decree of exceptions Orphans’ Court which dismissed to an ad- judication residuary had awarded Mrs. Baum’s legatees. to her estate April left a last will Baum dated Mrs. 1958; 23, May unfortunately thirty died she less than testa- In after her 1958 days signing will, her will. revoked who had no or next of trix, expressly heirs kin, left all wills friends,, and after a few legacies Hos- her Zem estate to Zem residuary three charities, pital Crippled for Crippled Erie County Children, Children’s and Humane Society Society Erie, equal shares. that because tes- Commonwealth contends (a)
tatrix died thirty the execution days residuary gifts to charities are invalid under Section L. Act P. 7(1) April the Wills P.S. §180.7(1) ; that an occurred (b) intestacy with respect to all the residuary gifts; (c) under Section Act of 3(6) Intestate P. L. §1.3(6), 20 P.S. amended, the Commonwealth is entitled to the entire estate. of the Wills Act of per 1947, supra,
tinently provides: “Any bequest religious devise оr charitable purposes included in a will or codicil exe cuted within thirty days* the death of the testator shall be invalid [1] unless all who would benefit invalidity agree shall valid. . . . Un [Or 2] less the testator directs such a otherwise, will or if codicil shall revoke or supersede a prior will or codicil executed at least thirty days before the testator’s death, and not theretofore revoked or superseded and [3] which can produced in legible condition, [4] if each instrument shall contain an identical gift for substantially same religious or charitable purpose, gift the later will or codicil shall be *9 . . .” valid; 3(6)
Section the Intestate Act of 1947, supra, provides that if there is no surviving spouse, “the en- . tire estate . . shall descend in the following order: . . . * throughout, ours. Italics herein-
(6) persons In default of all Commonwealth. of Penn- before then to the Commonwealth described, sylvania.”
The an effort to come legatees, the one exceptions set forth John- an Herbert J. produced Wills Act, (1) attorney, of Mrs. Baum’s incomplete copy an son, Jr., (2) been de- prior 1955 of which had will, original at her this stroyed direction. Johnson testified unsigned unwitnessed was his copy copy of office her this car- that he had retained original will; bon files; his it made at same copy was time and with typewriter same original, impressions will; as her executed original he does remember who witnessing remembers but not in his other witness it was someone although was, testi- office. overlooks Johnson’s own majority I “What have been mony: typewritten referring copy of the will which made at the same time was original [1955] will was typed.” Unlike Mrs. we Baum’s typewritten copy, not contain her signature did nor the signаture repeat, of either name of subscribing witness, other witness subscribing was even known. then testified that Mrs. for him
Johnson Baum sent she while April 23, 1958, hospital, him he told him to her 1955 When bring will. her in the she (few) interviewed told him the hospital, to make. He she wished returned changes immediately her office and drew new will to his dated he returned to day hospital 1958. The same nurse witnessed Mrs. Baum’s he and a signature to inter contained, alia, express new revo- wills. all cation of further testified that
Johnson after the testatrix of April her will had executed she instructed *10 destroy original him to her then did 1955 will he presence. so in her pertinently of the Wills Act of 1947
provides
original
that such destruction of her
n willwould of itself constitute a revocation. See also,
Gray Will, 365 Pa.
Naturally, majority I would like to do as the does, namely, gifts, sustain Mrs. Baum’s but the right ignore Court has nо to or distort or rewrite language pertinent Legislature. clear Act of the original physically destroyed Mrs. Baum’s will was her direction. How can it be resurrected what obviously beyond any incomplete, doubt un- signed copy? provides unambiguous plain,
The 1947 Wills Act unequivocal language gift charity not that a thirty days absolutely made within of death shall be religious gift but that a invalid, a such will “shall be invalid” unless it falls one of exceptions clearly enumerated and in the delineated gift statute. Such a last minute charitable only (pertinently) saved validly executed and if original produced legi- unrevohed will is theretofore validly ble and such condition, executed and unrevoked original substantially will contains a identical charita- gift. ble original intentionally
Mrs. Baum’s 1955 will destroyed presence, by in her her direction. It follоws, surely night day, unsigned as the that an incomplete copy of her 1955 will, the of which destroyed had been at her was not direction, and could “original* it indeed, could not be her will”— unsigned by will at since was all, her. * majority Opinion interpre- in the The cases cited on various “original” application wills, of the word have no tations clearly inapposite. are re- decision attempts justify
The majority rеason underlying it believes was lying what *11 agree can Act of 1947. We for the in the Wills change in the law change the a reason underlying of provisions inflexible to ameliorate the harsh and Legis- the the 1917 Wills Act. However, 6 of Section clear- of 1947, of Wills Act Section lature, un- and unambiguous and specified ly delineated, such only ways by equivocal language, ig- cannot be effected. The Court amelioration could nore mandate. plain legislative this must the 1947 Act is remedial and Wills
Although
possible
reasonably
construed whenever
liberally
be
388 Pa.
Once a State
starts to
or alter
re
or
un
exceptions
unequivocal
make
clear,
write
provisions
the Wills
in order to
ambiguous
Act,
pro
the Court believes to be
duce what
a fair and wise
particular
in a
solution
issues
will case,
a meaningless
Act will become
well
(although
Wills
scrap
door
intentioned)
paper,
will
to countless fraudulent
opened wide
claims which the
Pavlinko
successfully
Will,
bars.
Aсt
To summarize: Pro distorted, tortured the English crustean stretch language make this incomplete a copy unsigned “the will, a at all* even The result will”, testa- instrument, signed to be written *A must be tbe end thereof. Section 2 of tbe tbe Wills Act of testator trix’s attempted of her gift estate to charities fails, intestacy said estate de- results, scends the Commonwealth.
I would reverse the and direct that costs Decree, all be paid out of the residuary estate.
Mr. Justice Cohen joins opinion. dissenting 89, supra (with exceptions L. P. certain not here rele- vant) . Appellant.
Francis v. Corleto,