*1 Murovich, Jr., appellants. Vincent C. Pittsburgh, for Davis, Reed Pittsburgh, appellee. J. JONES,
Before J., EAGEN, O’BRIEN, C. ROB- ERTS, POMEROY, MANDERINO, NIX and JJ. OF
OPINION THE COURT PER CURIAM.
Decree
appellants.
affirmed.
Costs
be borne
Supreme Pennsylvania. Court of
Argued Nov. 1974. May
Decided 1975. Rehearing July 7, Denied *3 Townend, Wilkes-Barre, Frank Sil- Townend, Frank Townend, appellant. for verblatt & McHugh, Caverly, Wetz- Aston, Fine, Aston, Albert H. Benjamin appellee, Musser. Geist, Wilkes-Barre, for el & Nancy appellee, Mus- Piccone, Estate for L. Arthur Harper. ser POMEROY, NIX and O’BRIEN, ROBERTS,
Before MANDERINO, JJ. THE COURT
OPINION OF Justice. ROBERTS, Laning bequeathed her entire es- Elizabeth
The will paid directing to her trustee, that the income be tate to Laning Musser, life adopted daughter, Helen my heirs corpus to “such of lineal then distributed young- are, daughter there at time ... twenty-one age years, members est arrives at Presbyterian ab- standing Church.” good corpus pass grandchildren, qualifying was sence After appellant for Homeless Women. Home a final account tenant the trustee filed of the life death sought of the trust distribution directions as estate. Musser,1 Laning al- of Helen
Appellees, the children though admitting are not and never have been on Presbyterian claim estate Church members *4 membership is unen- ground that the condition of the is val- condition Appellant maintains that the forceable. receiving precludes appellees any interest id and orphans’ that the corpus. concluded trust court the it is membership is unforceable both because condition of age of bore children survived to 1. Helen Musser three who Frederick, Frederick, Nancy. a twenty-one: Benjamin, now and Nancy monk, Benjamin. assigned his interest to Franciscan has Harper, represented now and her interest William deceased of her estate. widower and administrator contrary public policy Pennsylvania to and be- any to cause the Fourteenth Amendment forbids state give appeal to such a effect condition. This followed.2 We reverse. contrary to the claim that the condition is
Because public policy, appellees, if in favor resolved would ob- question, viate the need to resolve the that constitutional support con- claim considered first. In of the must be contrary ap- policy, tention to that condition is pellees 266, 118 Klinedinst, cite Drace v. Pa. A. 907 (1922), Estate, 11, and Devlin’s Trust Pa. A. distinguishable. However, these cases are Drace,
In
the testator devised certain land to his son
“provided
life and thereafter
to his son’s children
particular
religion;
remained faithful
to
a
religion,
them
case
forsook this
‘then
in that
remaining
case, to the
children who remain true’ to this
religion.”
275 Pa. at
children
fact will that the the remaindermen specified religion. “remain true” Enforcement require this condition would thus determination religion inquiry doctrines of that an whether Appellate July Court Jurisdiction Act of Act 673, § § 202(3), 211.202(3) (Supp.1974). P.L. P.S. *5 true” those the “remained doc- remaindermen had clearly improper for a questions Such are civil trines. apparent Indeed, from the court determine. Supreme unanimous decision of United States Court Mary Presbyterian Hull Me- Elizabeth Blue Church v. 601, 440, Presbyterian Church, 393 89 S.Ct. morial U.S. (1969), civil are constitution- courts L.Ed.2d 658 ally make forbidden to such determinations. Georgia Presbyterian case,
In the courts of Church right dispute over the had undertaken to resolve by determining property the denomina- church whether substantially departed tion from the tenets faith had congregation existing practice at the time and when Supreme denomination. had affiliated with unequivocally intrusion into eccle- condemned such Court siastical affairs civil courts: Geor- departure-from-doctrine element of the “[T]he requires gia implied theory court de- trust the civil very religion of a in- termine matters at core —the particular the im- terpretation church doctrine religion. Plainly, portance to the of these doctrines playing the First Amendment forbids civil courts such role.” 450, 89 at
Id. at S.Ct. 607. have re Drace only the condition
Not would content of improper inquiries into the quired domain doctrine, into ecclesiastical but the intrusion probe into the magnified by the need have been would contrast, bequest in of the remaindermen. beliefs or inquiry either doctrine requires into here no volved bene is whether All that need determined belief. specified church.3 not members of are or are ficiaries standing” good to mean for- membership “in We construe Any other construction specified church. affiliation mal with belief, thus lead inquiry into doctrine would entail could in- invalidity consequent testatrix’s frustration of the (1946); Estate, 45 A.2d 353 Pa. tention. See Funk Devlin’s Trust Estate, 284 Pa. A. *6 (1925), upon appellees, inappo also equally relied is site. There trust was for created the benefit of set three-year provided tlor’s grandson, old that he was in inquiry “reared Roman faith.” Catholic The nec essary apparently to administer this condition was limit obtaining annually: ed to the of two certificates one at testing grandson’s to the attendance at a Roman Catholic school and “from one the Roman Priest of the Catholic parish grandson] in which is resides the child [the being brought up and the Roman Catholic reared faith.” In declaratory judgment, action an for a against public policy Court held the condition to be therefore void. judgment,
In in- our of in Devlin vice the condition compel purpose: hered in Prot- its obvious the child’s him in fa- estant mother to the faith of his deceased rear ther, probable of instead of effect her own faith. The disruption relationship with would be of the child’s only surviving parent. In of his of the central role view responsible parent development child so adulthood, which would enforcement of a condition re Borwick disrupt relationship [1933] Ch. 657; contrary 4 see 1 A. Scott, policy. Law (3d there 1967), and cases 62.5, Trusts at 582-84 ed. § cited; Bogert Bogert, Trust and 2 Law of G. G. G. T. & (1940); 243(c) § Law Property Restatement of 5 American 21.3, 1952).
Property (A. § at 131 J. Casner ed. life, pay daughters for 4. Settlor created a income to his trust any provide support to daughter of the children education children, during minority and to who died of those upon give corpus death to the after their mother’s children daughter coming provided age. his their He child of obtaining interest who a vested became a Roman Catholic before daughters rights all of the should forfeit married a under the trust. One baptized Cath- were Roman Catholic and their children of the olics. The disruption ought both because condition was held unenforceable parents parent-child relationship and because solely awith matters instruct their children spiritual view to the moral and of the children welfare regard mercenary with considerations. 164 (2d 1965); Trust ed. cf. Girard 211, at
Trustees § (1941) (con- Schmitz, N.J.Eq. A.2d v. Co. or in- siblings communication no dition that adult have public poli- against another void one tercourse with f. 62, comments cy) ; (Second) of Trusts § Restatement (1944); Property g. (1959); Restatement § & (A. Casner, ed. Property J. 27.19 American Law § 1952). tendency presents no such provision here
The involved relationship parent to minor child. disrupt religious education expressed for the no concern testatrix only with deals grandchildren, for the condition of her among youngest them time at the their status when then, condition, twenty-one. effect of the *7 becomes adult to the testatrix’s only an inducement to offer sure, this To be grandchildren to her faith. to adhere relationships disruptive on familial may have effect some concern. social far less among adults, this effect live relatives may be that adult it desirable “However relationships our social family on which harmony, thought depend are those between to has been structure American parent child.” 6 wife and husband 1952). (A. Casner, ed. 27.19, J. Property at 672 Law of § key role of adulthood, grown to has child Once relationship, still while parent diminishes and that between nearly approximates special, more quite other relatives. by appellees are thus dis- cited of the cases both
While opinions offer language does in the tinguishable, certain Kephart Brace, positions. Justice support their human guarantee that “no our constitution’s conceived inter- whatsoever, control authority case can, expressing a rights of conscience”5 as fere with public distinctions as against private as policy well broad religious belief. on based I, Pa.Const., § 3. art. public policy. He will violated
“Testator’s ato to adhere to lineal descendants wished force his religious penalty faith, loss under certain penal- might their inheritance. Such what be termed and, punishment, course, was in the nature of ty, of pillory, physically, stocks, severe, as the not as while physical chas- whipping post and other forms of lasting effect, and tisement, more have a would adopt likely produce If we to were results. would sus- view, should be appellant’s that such condition this announced tained, would contravene we originate the by authority, would, policy, but we whereby, entering wedge step mark the first worship of through encroachments, God successive according given religious persuasion con- could be disposi- indefinitely through compelled trolled and step back- property It be a tion of at death. would persecution, ward, looking days duty stop inception.” it is our this effort its 270,118 275 Pa. at A. at 909. deny think statement
We too broad. None will that if the testatrix still lived to at- she would be entitled tempt, material inducements well as verbal exhor- grandchildren persuade tations, adopt her reli- gious permits individual, faith as their own. Our law an *8 through trustees, exercising use of continue some perpetually property dominion over after death —not as by Kephart, feared Justice time which a has proven compromise a of workable between interests property society. Probate, owners of See needs 6104(b) Estate, Code, (Spe- and Fiduciaries 20 Pa.C.S. § 1974). cial Pamphlet, Inasmuch as the result which sought accomplish immoral, testatrix illegal, is neither tortious, productive any or evil, social see no basis we upon power dispose which she should be denied property in this fashion.
166 sup is the fact
This conclusion is bolstered Co. authority. Trust ported by weight Delaware (Ch.1943), 101, A.2d 383 Fitzmaurice, 27 Del.Ch. 31 v. 374, A.2d 463 38 grounds, Del.Ch. on other 27 modified App.Div. 28, N.Y.S. Kempf's Will, (Sup.1944); 252 297 613, 123 (4th mem., N.E.2d Dep’t), 278 N.Y. 16 aff’d 307 209 Estate, N.Y.S. (1937); Misc. 287 Lessor’s 158 Am.Rep. 765 Magee O’Neill, 19 45 (1936); S.C. v. 553 (1883); Estate, N.W.2d Wis. 76 James’ 273 (1956); Will, N.W. Paulson’s 127 Wis. a. Property comment (1906); & Restatement § 27.20, Property at 674 (1944); American Law of § Maddox’s contra, (A. Casner, 1952);7 Maddox J. v. ed. (11 Gratt.) Adm’r, 52 Va. “§ 434. RELIGION. PROVISIONS CONCERNING Affecting Detrimentally “Except § as stated in 433 [Provisions Child], effective an otherwise the Relation of Parent and Infant condition executory subsequent limitation, precedent, special condition acquisition designed prevent limitation which is land in things than other or retention of an in land or in interest if the valid religious is the event of certain conveyee beliefs or affiliations conveyor. family is a member of the “COMMENT: ei- society with Generally “a. not concerned RATIONALE. particular religious or the sinceri- ther the of the individual creed free, be- ty normally not his beliefs. The individual chooses, among theological promote lieve he The rule stated views but to his attempt- an others. validates such this Section promotion promotion takes the the religious ed views where that gift property form of a to a and where restraint annexed person imposing occupies sufficiently close relation- a restraint religious ship conveyee legitimate in his to have a interest beliefs. ...” a
7. “The limitation in often-heard reminder that condition or dispositive no imposes obligation brings to bear instrument no beneficiary ignore suf- coercion which the free to seems is not dispose ficient to liberties contention that there is a civil problem say in these that reli- cases. One should not be heard to gious high- it less freedom has been denied him he values because ly pecuniary provisions il- than benefit. If are to be held these legal, finding hold it must on some that the inducement encourages society, out behavior or that which is harmful to purpose of one is unnatural who holds out such an inducement only charge or offensive. The far in which been heard so has respect provisions encourage hypocritical is that these practices. charge counterfeit beliefs and Does *9 167 Having is not con the condition concluded that policy, appellees’ trary reach constitu public we must argument is of their tional contention. The foundation Kraemer, 836, 92 L.Ed. Shelley 68 334 U.S. S.Ct. v. Amend (1948),8 Fourteenth 1161 held that which grant judicial enforcement ment forbids a state to property. to real racially covenant in a deed restrictive judicial re they argue enforcement From this that ligious equally condition this case is act As state Amendment. and forbidden Fourteenth appellees correct suming, deciding, are without that judicial contending of the condition that enforcement meaning of Fourteenth “state action” within by that Amendment,9 is not conclude it forbidden we that amendment. Particular make differences? too much denominational churches, may by particular most creeds be stressed public good, thought promote and insofar are institutions concerned, one policy adhere to an inducement may possibility de- justified despite may not be the be beneficiary’s
nomination of choice.” own Brown, Pennsylvania 392 orphans’ v. The court also relied on judicial re- (3rd (en banc), 1968) F.2d which held Cir. 120 private City and substitution moval the Board Trusts discriminatory provi- racially in order trustees to effectuate the Fourteenth Stephen sions of the will of Girard violated the Amendment. theory of leading scholarly 9. A few of the efforts formulate Mulkey: Horowitz, state phase A Telo- action are: Reitman Karst & v. Protection, Equal Supreme Court Rev. Substantive 39; Protection, Black, Action,” Equal Cali- A. Con- Foreward: “State Silard, Proposition (1967); fornia’s 81 Harv.L.Rev. 69 Limit on stitutional Action” Forecast: The Demise of “State Equal Guarantee, (1966); Protection 66 Colum.L.Rev. Henkin, Shelley Opinion, U. v. for a Revised Kraemer: Notes Action, Lewis, Meaning (1962); Pa.L.Rev. 473 of State The Poliak, and Judi- (1960); Colum.L.Rev. 1083 Racial Discrimination Wechsler, cial Integrity: Reply A 108 U.Pa.L.Rev. Professor Horowitz, (1959); Action” Misleading Search for “State Un- Amendment, der more A the Fourteenth 30 So.Cal.L.Rev. Alstyne, Mr. exhaustive in Van Justice list will found Action, Black, Review, State Constitutional and the Talisman of 1965DukeL.J. 231 n. 24. *10 168 provi it clear outset, we think
At the
judicial en
providing
Pennsylvania
for the
law
of
sions
religious
conditions,
testamentary
whether
forcement of
respecting
es
an
“law
otherwise,
do not constitute
not have
the state does
religion.”
of
Here
tablishment
religious
particular
advancing a
purpose of
the forbidden
97, 89
Arkansas, 393 U.S.
compare Epperson
doctrine,
v.
forbidding the
(law
(1968)
266,
While religion presented, that there it cannot denied be religion. upon appellees’ If impact exercise an free enforced, to their their the condition is then adherence lega- receiving prevent faith will them substantial However, cies. this does must remembered that impose any them, they on never had claim loss bounty upon they the testatrix unless satisfied it. conditions she attached
Moreover, entirely state is not forbidden impose religion on the free this is costs exercise where compelling pur- of a state necessary fulfillment to the Brown, S. 366 U.S. pose. Thus, v. Braunfeld up- Supreme Court (1961), the 1144, 6 L.Ed.2d Ct. ap- Sunday, prohibiting on even law retail sales held a religion required that plied whose Jews Orthodox Saturday. tend the law did stores on While close their competi- against seriously disadvantage plaintiffs as Saturdays, open it was sustained on tors who remained adequately the state’s no serve because alternative would single day to the providing uniform of rest interest permit community. no alternative will entire Here *11 allowing accomplish purpose testators of its state dispose property please. of their as case, as impact in this the more direct
Given
pur
necessary
compared Braunfeld,
that the state
it is
However,
especially
justify
pose
compelling
it.
unusually compelling. This
interest
in this case is
state
sought
bequest to fur
is so because the testatrix
seeking adherents
interest
in
ther
own free-exercise
in
to her
As this
said
Conversion Center
faith.
Court
(1957):
Case,
107, 110
239, 245, 130
Charter
388 Pa.
A.2d
“The 14th Amendment of the Constitution
Amendment,
incorporates
1st
United
which
States
religion
guarantees
Article
exercise of
as does
free
Pennsylvania.
I,
Not
Section 3
the Constitution
ex
country
to the free
is a citizen of this
entitled
peace
pression
may by
religious beliefs,
but he
his
thereto,
persuasion
ful
endeavor to convert others
organizing to
ef
we are aware
no bar to individuals
guaranteed rights
regard.”
in this
fectuate their
105,
Pennsylvania,
Accord,
63 S.Ct.
Murdock v.
U.S.
L.Ed. 1292
say
had
that the testatrix
Of course we need not
enforced,
right
a constitutional
the condition
have
may
a state
free
interest which
accommodate a
exercise
v.
right.
not amount to a constitutional
See Gillette
does
States,
United
91 S.Ct.
Decree reversed and case remanded with instructions opinion. in enter a decree Each accordance with party pay own costs.
JONES, J., EAGEN, J., participate C. did not the consideration or decision of this case.
NIX, J., dissenting opinion filed a in which MAN- joined. DERINO, J.,
NIX, (dissenting). Justice accept majority’s I cannot conclusion that the-con- imposed dition instant trust was one was not public policy violation of this Commonwealth. obliged I am therefore to dissent. long ago Court, recognized
This as aas funda- *12 precept right mental of this Commonwealth of self- the every of determination citizen in the exercise of his or religious persuasion practice. her and right
The of the citizens the of Commonwealth to worship inGod accordance with the dictates of their colony. own conscience is a landmark of the old It was, fact, in chief one the for its reasons establish- grant ment. The early part charter inwas the 1682, and, proprietor in year, enacted, the same with the deputies, consent and advice of the in chapter first of the laws, person, “That no or now, at any hereafter, living province, time in this who shall acknowledge confess and Almighty one God to be Creator, Upholder world, and Ruler
171 prej- or any in case be molested shall ............ persuasion or or her conscientious his, udiced compelled any time she at practice. he or Nor shall place religious worship, any frequent Maintain or mind, contrary or Ministry whatever, his his, her, Lib- fully enjoy Christian freely or shall and interruption or re- any respect, erty in that without Laws, p. of York’s 107. flection”: Duke later, though it was provision reenacted was This subjected certain modifications still later subsequently removed changes; these were to-day, substantially law of the Commonwealth well as through the States United Constitution III, of the through Rights, own Bill of section our as (1 Purd.Dig. declaring au- 117), that “no human latter can, interfere thority whatever, in control case rights with the of conscience.” A. Klinedinst, 907 Drace v. Pa. again Court same were reiterated this sentiments (1925): in Estate, Devlin’s A. Trust Pa. rearing years age until “The a child three twenty-one faith,’ covering he is ‘in as it does the period life, necessarily formative tends to bar though freedom, and, exercise of motives grandfather, providing, sin- doubtless so were expressed cere, yet, policy, under State, inoperative such void. a condition is distinguish present can see no reason case
We Klinedinst, from the down in Pa. rule laid Drace v. provision by will, It was there that a held made par- dependent remaining on the to a devisee attached church, through court, ticular was This Justice void. Kephart, said, part: there ‘Testator’s will violated public policy. de- force lineal He wished to his *13 religious faith, to to scendants adhere certain under a might in- penalty termed their of the be loss of what adopt appellant’s . . If were to heritance. . we sustained, we view, that such condition should be only policy, this announced but not contravene would step by authority, originate to would, we that the first through entering wedge whereby, successive mark according giv- worship encroachments, a to God religious persuasion and com- en could controlled pelled indefinitely through disposition property ” at death.’ 14-15,130 Id. at A. at 239. stressing emphatic in
Each these were decisions of its policy that assures each Commonwealth right worship their in a to choice God citizens the their Pursuant manner in accordance with conscience. recognize to re- precept, to that our has refused Court settlors, regardless by testators, crafti- strictions or how upon ly of choice. designed, which encroach this freedom distinguish attempt facts In instant a strained majority precedents, first states earlier imposed required key the condition Drace was that inquire and to a determination doctrine Court to make doctrine. into the remainderman’s adherence only to determine Here contend need that the Court specified are members a whether the beneficiaries reasoning clearly First, This fallacious. church. imposed a required the heir not to be condition Church, Presbyterian also member member of the a good standing. perceive I be- fail to difference person re- a has tween a determination whether particular or he is sect mained true whether good standing that sect. If freedom within protections upon semantics, depend afforded illusory. policy are than little more why any greater Further, perceive fail to there I was inquire need into than there is as in Drace doctrine challenged Drace presently result condition. *14 the religious faith to which the question no as to there was Nor was adhere. his testator intended descendants fact, did, in the remainderman question that there in- in that Thus, no need was there abandon that faith. doctrine, but question of inquire into the stance to provision offensive recognized as Court, nevertheless, appropriately: and stated most days looking step backward,
“It would be a stop duty religious persecution, it is our ef at 118 A. inception". Id. Pa. at in its fort added) (Emphasis recognize the majority Unfortunately failed has wisdom that admonition. case. the instant in Devlin closer
The facts are even justification may There, some there have been his deceased request in of the fact that view testator’s beneficiary question, had en- son, father moth- premarital agreement the child’s into a with tered part of made er child in the was to rear the faith Devlin did Further, condition. the restriction his beneficiary only required that forever bind given training, during minority, a accordance with rejected intrusion. Nevertheless, the Court faith. predicated opinion rejection Nowhere in that was that unity majority upon disruption family would majority suggest. tortuous distinction made emphasizes the extent which in this instance abandoning gone justify precedent. has properly my judgment Dr Devlin were both ace and I controlling present facts. decided and are under the the court below. therefore affirm the decree of would joins opinion. MANDERINO, J., in this