192 A. 405 | Pa. | 1937
Argued March 30, 1937.
Mary E. Lowe died January 26, 1934, leaving a son, Harold C. Lowe, and a minor grandson, James Horrocks Lowe. The genuineness and validity of her will, dated January 13, 1934, were contested by the son, but it was sustained, on appeal to this court, in
At the audit of the executor's account the son, Harold C. Lowe, claimed the entire residuary trust estate on the ground that the bequest to the Odd Fellows Home was for charitable uses and void because of the death of testatrix within thirty days after execution of her will, and that the life estates also fell because they were an integral and inseparable part of the general scheme of disposition of the estate. The auditing judge sustained this claim. Exceptions were filed by the Odd Fellows Home to the finding that it was a charity; by the trustee, claiming that even if the gift for charity failed the life estates were not affected; and by Harold C. Lowe, objecting to an allowance to the executor of a credit for counsel fees, a part of which was for services in the contest for an issue devisavit vel non. The court in banc affirmed the ruling that the Odd Fellows Home was a charity, held the accumulations of income to be illegal, decided that the remainder vested in the son, Harold C. Lowe, as heir at law and next of kin, sustained the trustee's contention that the spendthrift trusts did not fall with the gift to the Home, dismissed the exceptions to the allowance of the counsel fees, distributed to the son, Harold C. Lowe, "all the income from the whole of the principal of the trust estate from the date of his mother's death until his son James Horrocks Lowe attains the age of thirty years, if he shall so long live," and awarded the corpus of the residuary estate to Fidelity Trust Company, trustee, in trust for the purposes specified in the will. From this decree two appeals have been taken, one by the Odd Fellows Home, and one by Harold C. Lowe.
The first question for consideration is whether the gift to the Odd Fellows Home was properly held by the *379 court below to be for charitable uses. According to the charter of the Home, as amended in 1918, its purpose was to establish a "Home for Aged and Infirm Members of the Independent Order of Odd Fellows, their Wives and the Indigent and Aged Widows of deceased Members of the Order, and all such as the By-Laws may provide." The by-laws provide that an Odd Fellow, in order to be admitted to the Home, must be sixty years of age or over, of good moral character, and unable to support himself by reason of age or indigence; he must have been a contributing member of his lodge for at least five consecutive years next preceding his application. Qualifications are also prescribed for wives and widows applying for admission. An Admission Committee receives applications, investigates them, and refers them, with its recommendations, to a "Committee on Homes and Kindred Charities of the Grand Lodge;" if approved by that committee, the applicant is received by the Home as a resident. In addition to such donations and bequests as may be made to it (and which are solicited in its publications), the Home is supported by annual payments made by the subordinate lodges on assessments levied by the Grand Lodge and based upon the number of members in each lodge. The payments by the subordinate lodges are made from the dues paid in by their members.
Neither in the charter of the Home nor in its constitution or by-laws is there any provision giving a lodge member a contractual right to become a resident. No one who lacks the enumerated qualifications can enter the Home, but, on the other hand, the mere possession of those qualifications gives no assurance of acceptance. While it is not to be presumed that the Committee on Homes and Kindred Charities acts arbitrarily or capriciously in passing upon applications, even were it to do so a rejected applicant would have no rights that he could enforce in an appeal to a judicial tribunal. *380
In determining whether, under these circumstances, the Odd Fellows Home is a charity, it must be kept in mind that it is distinct from the lodges and from the Order of Odd Fellows; moreover, the question is not as to its being a public charity entitled to exemption from taxation, but whether a bequest to it is one for "charitable uses" within the meaning of the Wills Act of 1917, P. L. 403, section 6 (amended in respects here immaterial by the Act of July 2, 1935, P. L. 573).
In the organization under consideration in Swift'sExecutors v. Easton Beneficial Society,
So in Sharp's Estate,
On the other hand, in the leading case of Philadelphia v.Masonic Home of Pennsylvania,
The fact that the applicant, when he enters, is compelled to turn over his property to the home is not such a circumstance as changes his admission from the domain of charity to that of contract. As was said in Brooks v. Hastings,
Since an applicant for admission to the Odd Fellows Home in the present case has no legally enforceable right to enter, we are of opinion that the court below was right in holding that the bequest to the Home was for a charitable use, and therefore void because of the *382 death of testatrix within the statutory period. It may be added, while not of controlling import, that the Home has never paid local taxes on its real estate, but has been considered exempt, presumably as a public charity.
The bequest to the Home falling, the principal of the trust fund goes to Harold C. Lowe as the heir and next of kin of testatrix. The court below properly held, however, that this did not affect the spendthrift life estates of the son and grandson, nor merge the son's interest in the income with the interest in the remainder thus obtained by him. This is not one of the line of cases* in which a testator, in contravention of the law against perpetuities, provides for a gift to remote descendants and in the interim for life estates intended merely to serve a dominant purpose of deferring the ultimate vesting of the estate. In such instances the courts have declared, as in Lilley's Estate,
The accumulations directed by the will are void. This is true even as to those covering the period of the grandson's minority, because accumulations during minority are prohibited unless they are for the benefit of the minor and not of another legatee or beneficiary: Washington's Estate,
The fees of counsel allowed by the court covered legal services rendered both in the issue devisavit vel non and in the administration of the estate, no apportionment being made. The amount of the charge is not challenged as excessive, the only objection advanced being that no allowance whatever should have been made to the executor for expenses incurred in defending the will. It is true that, generally, "an executor is not bound to defend his testator's will, but if he undertakes to do so, it must be as the agent and in the interest of those benefited by his action": Yerkes's Appeal,
The decree of the court below is affirmed. Costs of the appeals to be paid out of decedent's estate.