426 Pa. 283 | Pa. | 1967
Lead Opinion
Opinion by
This is an appeal from a decree of the Orphans’ Court of Washington County dismissing exceptions to. its adjudication which allowed reformation of a deed of trust of Anne A. Duncan. The facts surrounding the present controversy are as follows:
Anne A. Duncan (Settlor), executed a revocable deed of trust on August 19, 1935 wherein her son-in-law, Walter H. Baker (Baker), and the Union National Bank of Pittsburgh (Union) were named trustees. This particular trust created by Mrs. Duncan was designated by her as the “Baker Trust” since its benefits ran primarily to her daughter — Amy—who had married Walter H. Baker.
Settlor amended the “Baker Trust” on two occasions. The purpose of the first amendment, executed on December 10, 1936, was to eliminate a disparity which had occurred in the value of the trust for her son and daughter; to eliminate this disparity, the amendment transferred funds from the “Baker Trust” to the “Duncan Trust”. In addition, the first amendment to the trust gave Settlor the express power to revoke and/or amend the original instrument.
On January 4, 1941, Settlor executed a second amendment to the trust and it is this amendment which is the subject of the present litigation. Prior to January 4, 1941, Baker approached Smith W. Whitworth, a member of the Bar and a Trust Officer of Union, and informed him that the Settlor wished to amend the “Baker Trust”. Baker informed Mr. Whitworth of Settlor’s intentions and asked that Whitworth prepare an amendment to the trust to comply with Settlor’s alleged wishes. At this point, it should be noted that Whitworth, although involved with the creation of the original trust, was not the scrivener of the original instrument but was the scrivener of both the first and second amendments; whether or not Baker or the Settlor submitted his drafts of either the first or second amendments to private counsel is unknown. After receiving instructions from Baker, Whitworth drafted an amendment and forwarded it to Baker, not to Settlor. On January 4, 1941, Baker returned the draft of the
In the “Whereas” clause of the second amendment, there was a recital that the death of her son, James E. Duncan, Jr., was the reason for the amendment. Although the recital of the purpose of the amendment states such reason, Mr. Duncan’s death was completely irrelevant and immaterial insofar as the subject matter of the amendment was concerned and the purpose of. the amendment would be the same if he were living or dead. The amendment of January 4, 1941 dealt only with Article I of the “Baker Trust”, and it departed drastically from the dispositive scheme set forth in the original trust agreement.
It will be recalled that the original instrument gave the remainder interest in the trust, after the death of the various life tenants, to the issue of Anne Baker Weimer, that the issue were to take free of trust when they attained age 35, and that the original contained a provision that issue born after the Settlor’s death would share equally with those issue born before her death. The disposition of the remainder interest in the trust was changed by the second amendment as follows: (a) at the death of Anne Baker Weimer — the last of the life tenants — the trust was to be divided into two equal parts — one for each of the Settlor’s then-living great granddaughters — Amy Anne Weimer and Julia Y. Weimer; (b) the two shares were to be held in trust with income payable to the two named great-grandchildren until each attained age 40, at which time they could petition the trustees for ¡¡¡>10,000 annually from the principal of their shares while receiving the
It can readily be seen that the effect of a literal reading of the language of the amendment — caused by naming the issue living at the time the second amendment was executed — was to bar any child of Anne born between January 4, 1941 (the date of the amendment) and the date of Settlor’s death, February 16, 1943) from sharing in the corpus of the trust. The present problem arises since Anne did, indeed, give birth to a child during this period; Walter Baker Weimer (Walter) was born on December 16, 1942 and thus falls within the class of persons excluded from receiving any interest in the trust under the terms of the second amendment thereto.
On December 10, 1963, the trustees, Union and Anne (as substituted trustee) filed a second and partial account. At audit, the trustees advised the court that their purpose in filing the account was to have the court determine the identity of the beneficiaries who would take at the death of Anne — the then-living life tenant. Further, the trustees advised the court that the question was being raised at that time, since: (a) there was only one living person- — -the scrivener, now quite elderly — who had knowledge of the facts; and since (b) Walter had just attained majority.
At a hearing held on January 24, 1964, counsel appeared on behalf of Walter and in his praecipe for appearance
After a hearing on April 16, 1964, at which time extensive testimony of the scrivener was received, the Orphans’ Court of Washington County filed an adjudication reforming the second amendment so as to include Walter as a remainderman in the same posture with his living sister and the child of his deceased sister. Exceptions to the adjudication, filed by Amy Anne Weimer Ritter and the guardian ad litem, were dismissed by the auditing judge, sitting as the court en banc, and the adjudication was confirmed absolutely. This appeal, by Mrs. Ritter and the guardian ad litem (appellants), followed.
While appellants challenge the lower court’s adjudication on several grounds, the main thrust of their attack is that the evidence presented is not as clear, precise and convincing as is necessary to support a decree of reformation of a trust. Since we agree with appellants that the evidence presented does not attain the quality required for reformation, it is unnecessary to address ourselves , to any of appellants’ other contentions.
We turn to an examination of the instant record with certain well-defined principles in mind: (1) the
The testimony presented to the lower court is for the most part that of the scrivener. Our task is to examine his testimony and determine if a scrivener’s mistake or error has been shown by “clear, precise and convincing evidence”.
For many years, Mr. Whitworth had been a business acquaintance and personal friend of Settlor’s son-in-law, Walter H. Baker. In 1935 Baker discussed with Whitworth a possible trust to be established by
Whitworth testified that some time prior to January 4, 1941, he was approached by Baker, informed of Settlor’s desire to again amend the trust agreement, and asked to prepare an amendment incorporating the changes which Baker said Settlor desired: “Q. Who gave you your instructions in drafting the second amendment? A. Mr. Baker: I didn’t talk with Mrs. Duncan.” (Emphasis supplied) He described the instructions he received from Baker in the following language: “Q. Now, can you tell us again, I don’t recall how your answer was, what were the instructions as to drafting of the amendments? What part of the original were you to amend and in what respect? A. Just the first paragraph of the original agreement. Q. What were you to do with it? ' A. To name the children of Mr. Baker and provide for succession. Q. Were you told to alter the succession of the trust estate as among Anne Baker Weimer’s issue? A. No. Q. What were you told? A. I told Mr. Baker all I could do was to use a draft of the original agreement in redrafting
Clearly, therefore, scrivener had no personal knowledge of what Settlor intended. The only intent of which Whitworth might have had first-hand knowledge was that of his co-trustee, Baker. The draft of the amendment was submitted to Baker, not Settlor. Whitworth could not possibly have known whether the amendment complied with Settlor’s wishes; he only knew what Baker wanted the amendment to accomplish.
Whitworth’s testimony also casts doubt upon the question of whether or not there was, in fact, a mistake in draftsmanship. “Q. Was it a mistake? A. She being a very old lady, at that time, past 90, I believe. Q. Was it a mistake of yours to omit a provision for all the issue? A. Well, as it turned out, it could have been better to have it in. . . .” (Record 52a). “. . . Q. Is the general effect then of the amendment to conform to Mrs. Duncan’s intents? A. Yes, other than that clause ‘D’ that you just mentioned. Q. How doesn’t it conform to her intent there? A. Mrs. Duncan didn’t laiow anything about that.” (Emphasis added) (Eecord 78a-79a).
From an examination of the above excerpts of Whit-worth’s testimony, it seems obvious that he was merely guessing at the intent of Settlor. Since he did not know what her intention was, he could not possibly know whether, in fact, his draft contained a mistake.
Obviously, Whitworth’s testimony does not meet the qualitative test necessary to reform a written trust instrument.
As soon as Walter was born, the scrivener realized that there was a “gap” in the dispositive scheme of the trust and that Walter was excluded from any interest in the trust due to the provisions contained in the second amendment. This fact was conveyed to Baker while Settlor was still alive and the suggestion was made that the matter be corrected. Baker replied that, due to the poor health of the Settlor, he was hesitant to trouble her, saying “we’ll have to see what can be done later.” (Record 41a). Settlor lived two years after the amendment had been executed and several months after Walter’s birth. She knew of Walter’s birth and, in fact, knew Walter, since he had been in her home and in her presence on several occasions. Whether or not Baker ever conveyed to her the fact that a gap existed excluding Walter is unknown. However, it is a fact that, despite his awareness of the
It is impossible for us to find that the testimony clearly, precisely and convincingly establishes the existence of a scrivener’s error or mistake and it is impossible for anyone now to know what Settlor’s intention was. The Settlor is dead, and thus cannot enlighten us. The only testimony concerning the mistake is that of the scrivener, twenty-three years after the event; who, at no relevant time, discussed the pro visions of the amendment directly with the Settlor. The existence of the gap was known, or could have been made known, to all the principals involved in the trust, i.e., the Settlor, the individual trustee and a representative of the corporate trustee. It is apparent from an examination of the record that Mr. Whitworth’s memory had failed him with respect to many facets of the transaction surrounding the execution of the amendment. Even if his memory had served him well, his testimony would not be convincing, since he, by his own words, had absolutely no first-hand knowledge of the Settlor’s intent.
It is our duty to examine the record and determine if in fact, the testimony meets the standard requisite for a decree of reformation. We must conclude that the lower court erred in its determination that Whit-
Decree reversed.
In addition to the trust presently in litigation, Mrs. Duncan created a second trust, designated by her as the “Duncan Trust”, for the primary benefit of her son, James E. Duncan, Jr. The “Duncan Trust” is not involved in the present litigation.
The amendment provided for other various contingencies none of which are presently pertinent.
Record pp. 32a, 58a.
Ibid.
Appellees attempted to explain Baker’s inaction during Settlor’s lifetime by implying that she was incompetent. However, the record clearly refutes this position; shortly before Walter’s birth, Settlor executed a Codicil to her Will — to which Baker was a witness — which was later probated. (Record 17a).
While we hold the evidence herein presented insufficient to support a decree of reformation, it might well be that the language of the present trust instrument would support a finding of an impiied gift’ to appellee. Cf. Sowers Estate, 383 Pa. 506, 119 A. 2d 60 (1956); Lifter Estate, 377 Pa. 227, 103 A. 2d 670 (1954); Rouse Estate, 369 Pa. 568, 87 A. 2d 281 (1952); Willis Estate, 7 Fid. Rep. 392 (1957). Since that issue is not now before us nor is the present action the proper medium to present such issue, we express no opinion as to the merits of such a possible interpretation or argument.
Dissenting Opinion
Dissenting Opinion by
The majority has proceeded to reverse the decree below under a view of the principles of law which is excessively strict. Neither the facts of the instant case nor the equitable nature of the proceeding justify such strictness in my view.
It seems to me clear enough from the circumstances surrounding the adoption of the second amendment to the trust that a mistake on the part of both the scrivener and the testator has been shown. To begin with, it seems highly probable from a comparison of the trust as it stood before and after the second amendment, that the amendment’s primary purpose was to avoid a possible violation of the Rule Against Perpetuities which originally appeared in the trust. The presence of this purpose suggests to me the absence of any other purpose which settlor and her advisers intended the amendment to have. Secondly the majority has suggested no reason, nor is it reasonably possible to imagine one, why the settlor would have changed
Finally I would like to observe that the majority falls into error when it assumes that “clear, precise, and convincing” standard is not met because a witness expresses himself with equivocal rather than declarative statements. Given the fact that the scrivener was being put in a position where he was admitting a serious mistake, it seems to me that such equivocal expressions need not necessarily indicate a lack of clarity or conviction by the witness. In any event, it seems to me that the majority infringes the province of the trier of fact when it insists on its interpretation of such expressions which are equally susceptible of the different interpretation put upon them by the trier of fact.
Accordingly, I dissent and would affirm the decree below.