228 Pa. 537 | Pa. | 1910
Opinion by
The testatrix, a single woman, gave the bulk of her large estate to charities. Collateral next of kin whom she remembered — the closest being a first cousin — seek to avoid this disposition of her estate, on the ground that her will was not duly attested by two credible and, at the time, disinterested witnessses, as required by the Act of April 26, 1855, P. L. 328, relating to bequests or conveyances for religious or charitable uses. The two attesting witnesses were Lewis A. Balz and Miss H. E. Pennypacker. The- first, at the time he attested the will, was the vice president of the Pennsylvania Company for Insurances on Lives and Granting Annuities and the owner of eight of the 20,000 shares of its capital stock. Miss Pennypacker was in the employ of the company as a stenographer and typewriter. Each of these attesting witnesses was paid a remunerative salary by the company, and Balz was receiving dividends on his eight shares of stock. The company was named as one of the four executors of the will of the testatrix and qualified as such. One of the clauses in the will is as follows: “I hereby Will and direct that the Pennsylvania Company for Insurances on Lives and Granting Annuities shall hold the one hundred and forty-eight (148) shares of Stock of the said Company now held by it in the name of Mary
Interest which, under the act of 1855, disqualifies a witness from attesting a will containing religious or charitable bequests must be a present, certain and vested one. It must not be uncertain, remote or contingent: Combs’ & Hankinson’s App., and Jordan’s Est., supra; Kessler’s Est., 221 Pa. 314. Applying this rule to the will before us, it is difficult to follow the process of reasoning by which it is attempted to show that Balz was an interested witness when he attested it. It is first to be observed that no bequest or devise is made to any religious or charitable institution in which he was in any manner interested, and it is next to be noted that there is not even an absolute gift of the 148 shares of stock to the company in which he was a stockholder, to be held by it as trustee for any religious or charitable use. The direction of the testatrix upon which the appellant relies in asking that Balz be declared an interested witness is merely that his company pay the dividends on the 148 shares of stock, under her control at the time she executed her will, to the women’s hospital, provided it would accept her conditional bequest. For a subsequent breach of the condition the stock is given directly to a named charity. So long as the company might pay the dividends to the women’s hospital it would simply be rendering a service common to all of its stockholders.
The interest which it is contended disqualified Balz was in the compensation which might be paid to the company in which he was a stockholder. If, under the direction in the will that it pay these dividends to the women’s hospital, it could charge and would be entitled to receive compensation for paying them, it would be compensation for services rendered. The services which it renders as executor are the services of a trustee, and the reasoning of our cases, which hold that the compensation to an executor for his services does not disqualify him from attesting a will, applies with no less force to the services which may be rendered by the Pennsylvania Company for Insurances on Lives and Granting Annuities in paying the dividends to the women’s hospital. But, apart from this, the interest of the company, if it can be termed such within the contemplation of the act of 1855, in the direction to pay the dividends was uncertain and contingent, and that of Balz was at least equally so. No such disqualifying interest was in the mind of the legislature when it was wisely enacted that a testator, during the last calendar month of his life, should be free from the importunities and influences of designing persons, who, from present, certain and vested personal interest in religious or charitable institutions, might, if so inclined, improperly turn his thoughts to them and away from the natural objects of his bounty. A reasonable meaning is to be given to the words “two credible, and, at the time, disinterested witnesses,” and it would be torturing them to include Balz within them, because, at the time of his attestation of the will, he might have had an uncertain, remote and contingent interest to the extent of not more than four cents a year in the earnings of his company, under the direction of the testatrix that, upon certain conditions, it pay dividends on certain shares of its stock to her appointee.
The unanimous opinion of the court below on the exceptions to the adjudication of the learned auditing judge is approved here and the decree affirmed at appellant’s costs.