Lead Opinion
Opinion by
So much has been said in several recent cases upon the question of “disinterested witnesses” under the Act of April 26,1855, P. L. 328, that no useful purpose will be
In the case at bar the single question for decision is whether Christy was interested so as to disqualify him as an attesting witness within the meaning of the Act of 1855. He had no interest as legatee or devisee under the will, nor did he derive any pecuniary benefit or advantage under its provisions; nor was he interested at the time of attestation in any religious or charitable institution made the object of testator’s bounty. It is clear, therefore, that under the facts of the present case Christy was not disqualified as an attesting witness within the meaning of the rule as stated in Kessler’s Est., 221 Pa. 314. That case was decided upon the facts which gave rise to the controversy and the court was necessarily limited in its discussion to the facts out of which the litigation grew. Since the opinion in that case was handed down several cases, involving the same principle but growing out of a different state of facts, have been before us on appeal. In the decision of these cases it became necessary to determine from time to time what interest disqualified an attesting witness under the par
In the case at bar the residuary estate is devised to the executor in trust for the establishment and maintenance of a manual training school devoted to the instruction of boys and girls in useful arts and trades. The bequest is not to any committee or advisory board but to the Scranton Trust Company as executor and trustee for the uses and purposes specified in the will. The trustee holds the legal title, takes the fund, administers the residuary estate, and will be legally responsible to account for all moneys and property set apart under the residuary clause of the will for the charitable use. It is true that the testator named an advisory board to act in conjunction with the trustee in all matters connected with the administration of the charity, and it must be conceded that great confidence was reposed in this advisory board by decedent. It is also apparent that the testator desired his trustee to have -the benefit of such suggestions and advice as he thought the advisory board would give it, and learned counsel for appellant argue with great force that the testator intended this advisory board to be vested with all the powers required to fully administer the charity. To sustain this contention would have the effect of reading out of the will all the provisions relating to the duties of the trustee. Such a construction would make the trustee a mere figure-head without power or authority to administer the residuary estate, although legally responsible to account for the proper administration of the trust. Our conclusion is
The case has been very ably presented here by both sides to the controversy. Nothing has been left unsaid by either side which would add value , to the discussion. It is a close case upon its facts and there has been difference of opinion, in our own court as to the conclusion reached. A majority of this court, however, are of opinion that the case was properly disposed of in the court below. • .
Decree affirmed. All costs to be paid out of the estate.
Dissenting Opinion
Dissenting Opinion by
If the testator’s execution of his will was not attested by two witnesses disinterested in the charity which he intended to create, it cannot be established. Its failure would be a matter of deep and lasting regret; but the law provides how, and how only a charity may be created -by will, and as the law is written it ought to be consistently enforced, without regard to consequences which may result from enforcing it. Instead of differing with the majority of my colleagues on the question brought up on this appeal, I should much prefer to follow, if I could, the reasoning which has led them to the conclusion that the execution of the will of Orlando S. Johnson, a benevolent testator, was attested by two disinterested witnesses; but I cannot, and my conviction is so clear that there was an unfortunate failure to observe the vital requirement of the Act of 1855, that I must
While the testator gave his residuary estate to his executor in trust for the establishment of a charity, he did much more. He appointed what he calls an advisory board, and thus gives his reason for doing so: “The carrying out of this project will necessarily entail considerable responsibility upon my executor and call for the exercise of good judgment and wise discretion, and it is my wish to appoint an advisory committee or board under whose direction and control this part of my estate shall be administered.” After directing that vacancies in the advisory board, caused by death, resignation or inability to act, shall be filled by the remaining members, the testator provides as follows: “The advisory board and my executor shall have the largest discretionary powers in regard to the whole subject, confined only by my direction that the object of this charity shall be the founding and maintaining of a manual training school.” The large discretionary powers are not vested in the executor alone, but in it, in connection with the advisory board. Passing this, what specific direction of the testator immediately follows? “The location of the site for such school, the size and extent of the institution, the time when its construction may be commenced and when it may be opened for operation, the number and kind of teachers to be employed, the character of the equipment, the number of pupils to be accommodated, the particular useful arts and trades which are to be taught, the rules regulating the acceptance or rejection of applicants for instruction, the age of pupils, the length of terms of instruction,—these and all other subjects arising in the administration of this charity are to be determined by the said advisory board in the exercise of sound judgment and their best discretion.” In view of the foregoing directions, I am utterly unable to understand how Arthur H. Christy, named by the testator as a member of the advisory board, can be regarded as hay
Even if the case were one of first impression, and effect is to be given to the Act of 1855, Christy ought not to be regarded as a disinterested witness; but the case is not of such nature, and, if well-considered cases are to be followed, and the rule of stare decisis is to prevail, the decree of the court below cannot be affirmed. In support of this I refer particularly to Kessler’s Est., 221 Pa. 314; Stinson’s Est., 232 Pa. 218, and Leech’s Est., 236 Pa. 57. If in Stinson’s Estate, Mrs. Ralston, who was named by the testatrix as a member of the executive committee of the charity, was, by reason of such nomination, not a disinterested witness to the execution of the will establishing the charity, how can it be seriously contended that Christy, a member of the advisory board created by the testator, Orlando S. Johnson, was a disinterested witness to the execution of his will? The duties and powers of the executive committee in Stinson’s Estate appear in the opinion of this, court in that case. Contrasted with them, infinitely greater powers are conferred by the testator in the present case on the members of the advisory board of his charity. This is beyond question, for, after specifically enumerating certain matters which are to be under, the direction of that board, the testator declares that “these and all other subjects arising in the administration of this charity are to be determined by the said advisory board in the exercise of sound judgment and their best discretion.” .The members of the advisory board are not mere advisers to the trustee. That board is woven into the very warp and woof of the charity, and its members are the charity’s board of managers, each one of them being directly interested in it.