249 Pa. 389 | Pa. | 1915
Opinion by
In the presence of two subscribing witnesses the testator signed and published his will 3d January, 1913. After directing that a tomb be erected on the family burial lot in the cemetery, he gave his entire estate to charitable uses, and named the Provident Life & Trust Company as executor and trustee. The execution of the will was witnessed by B. F. Jones, who at the time was an employee in the trust department of appellant, and by Richard T. Cadbury, assistant to the trust officer and a stockholder in said corporation. The primary question for decision is whether the execution of the will was attested by “two credible, and, at the time, disinterested witnesses” as the Act of April 26, 1855, P. L. 328, requires ; and as to several of the bequests it is necessary to determine what constitutes “a disinterested witness” under the Act of 7th June, 1911, P. L. 702. As to the witness, Jones, nothing need be said for the reason that the record does not disclose anything to indicate that he was interested, within the meaning of the statutes, either in the trustee corporation or in any of the charitable institutions named as beneficiaries. As to Cadbury the situation is very different. He is a stockholder in the corporation named not only as executor under the will but as trustee, having the management and control of two of the charitable bequests, and said trustee is also the residuary legatee, with power to appropriate the income perpetually to such charitable uses as it “may deem wise.” The trustee is given broad and comprehensive powers in the administration of the trust estate, all of which goes to worthy charities under the provisions of the will. These powers give the trustee authority to retain the assets, investments, securities and real estate which comprise the principal of the estate, for any length of time it may deem expedient; to invest and reinvest the principal of the trust estate, and to sell and dispose of all or any part of the assets, investments, securities and real estate for such price and upon such
We, therefore, concur in the views expressed by the learned auditing judge and by the court in banc upon
What has been said applies to the bequest of $50,000 in the fourth clause of the will, and to the sixteenth clause which gave the residuary estate to the trustee for charitable uses.
In the fifth clause the testator gave $10,000 to The Pennsylvania Academy of Fine Arts, which is an incorporated society, with shares of stock issued and outstanding. Cadbury was a stockholder in this corporation and the court held that he had such an interest in the charity to be benefited by the gift as to disqualify him as a witness to the will. It was decided in Kessler’s Est., 221 Pa. 314, that if a subscribing witness be interested at the time of attestation in a charitable institution named as a beneficiary under the will, he is not disinterested within the meaning of the statute. Cadbury was interested as a stockholder in the Academy of Fine Arts, and therefore came within the letter and spirit of the rule. The fact that an attesting witness may own one share, or five shares, or ten shares, or fifty shares, can make no material difference in the application of the principle involved. In many instances the rule may seem to be a harsh one, but the legislature had the power to prescribe how testamentary writings shall be executed and by whom they shall be attested, and having exercised that power by requiring wills containing charitable bequests to be attested by “two credible, and, at the time disinterested witnesses,” it is the duty of the courts to enforce the law as it is written. If ,for any reason it be deemed wise to change or modify this rule pf law the question should be brought to the attention of the legislature and not to the courts.
The first assignment of error relates to the bequest of $150,000 for the care of the cemetery lot in which the testator was buried. We do not find any reference to
We entirely agree with the learned court below that only those gifts to religious and charitable uses, in which the attesting, witness had an interest, are invalid under the Act of 1911. The learned judge who wrote the opinion of the court in banc has discussed this question in such a clear and convincing manner that we might well adopt his language as expressing the views of this court. But since it is a new question we will discuss it very briefly on the cross appeal from the same decree now pending here, upon which appeal we are asked to reverse the court below for sustaining the legacies bequeathed to religious and charitable uses by the sixth and subsequent clauses of the will to and including the fifteenth.
Assignments of error overruled and decree affirmed. Costs to be paid out of the estate.