1 Parsons 436 | Pennsylvania Court of Common Pleas, Philadelphia County | 1850
The opinion of the Court was delivered by
Margaret Pepper, by deed executed on the 3d day of June, 1837, conveyed to George Pepper certain valuable described real estate of which she was owner, and which composed all her property of any value, except a very small amount of personal estate, principally household furniture. The profits of the estate were to be received by Miss Pepper, during her life. A power was reserved to her, to dispose of it “ to such person or persons, purpose or purposes, and at the time and times, and in such parts and proportions, manner and form, as the said Margaret Pepper, whether sole or covert, by any writing under her hand and seal, in the nature of a last will and testament, and duly attested by two or more credible witnesses, should direct, limit, and appoint. And in case the said Margaret Pepper should not have
The case came before the Court under a petition filed on behalf of a portion of the heirs-at-law of Margaret Pepper, to appoint a new trustee under the deed of settlement of June 1837, in the place of George Pepper, who is deceased. The application is resisted by the executors and appointees of the will of Margaret Pepper, who insist that the will is a sufficient execution of the power secured to her by the deed of 1837, and that even if that is not so, this Court has no jurisdiction to grant the relief prayed for by the petitioner.
The questions involved in the cause are of great interest. They have therefore received a more than ordinary consideration from the Court. For the purposes of simplification and clearness, we propose attempting the solution of four propositions into which the case seems to divide itself. First, is this will a good execution of the power created by the deed of June 1837, supposing it to be adequately executed according to the requisitions of that deed, although it does not on its face purport to be made in execution of the power? Second, is the power on general principles adequately executed by the will, the latter not being under seal, as is required by the deed ? Third, if, on general principles, the will is not an adequate execution of the power, because not executed under seal, is it a good execution of the power, so far as respects the charitable bequests, under the statute of 43 Eliz., ch. 4; or rather according to the principles of that statute adopted into and forming part of the common law of Pennsylvania, this statute as such not being
First, then, is the execution of the power by the will defective as is contended, because the will does not on the face thereof purport to have been made in the intention and with the purpose of executing the power ?
There have been few subjects which have given rise to more discussions, or which have exhibited greater conflicts of opinion among equity lawyers, than those involving inquiry how far it is necessary to refer to the instrument creating a power, in another by which it is supposed to be executed. For the purposes of this case, it is unnecessary to enter into this field, of controversy, farther than to refer to certain portions, which have been fully settled in the progress of the conflict, and which rule the case before us.
We will first premise that the legatees in this will can only claim under it, as the execution of the appointment; for, although a gift to A. and to such person as he shall appoint, is absolute property in A. without appointment, yet if it is to him for life, and after his death to such as he shall appoint by will, he must make such appointment in order to entitle that person to anything. A distinction said by Sir William Grant, in Bradley v. Westcott, 13 Vesey, 452, to be slight, but perfectly established, for in such case the property vests. Questions on the executions of powers by testators are, like most questions arising under last wills, questions of intention: Probert v. Morgan, 1 Atk. 444; Ex parte Caswell, 1 Atk. 560; Adams v. Austen, 3 Russell, 461. Hence it has always been held that an express declaration of the intention to execute a power, need not appear on the face of the will, provided such intention otherwise sufficiently appears: Probert v. Morgan, Ex parte Caswell, Adams v. Austen, Bradley v. Westcott, ubi supra; Sugd. on Powers, chap. 6, § 7, paragraph 1; Andrews v. Emmett, 3 Bro. C. Cases, 303. This general rule is apparently a simple one; and yet the inquiry as to what state of things-sufficiently manifests an intention in a testator to execute a power by his will, to which power he does not specifically refer, has given rise to the greater part of the cases on the question whether a preexisting power has been actually executed by a subsequent will..
It is settled by these cases, that no terms, however comprehensive,, in a will, although sufficient to pass every species of property, real and personal, will execute a power, unless they demonstrate that the testator had the power in contemplation, and intended by his will to execute it. Where the will, however, devises or bequeaths' described
It is upon this principle the decision in the celebrated case of Standen v. Standen, 2 Vesey, Jr. 589, rests; a case the authority of which has never been denied, although the reasoning of Lord Rosslyn therein has been much questioned by subsequent equity Judges and lawyers: See Langham v. Newry, 3 Vesey, Jr. 470; Bradley v. Westcott, 13 Vesey, Jr. 453; Jones v. Tucker, 3 Merivale, 533; Jones v. Aurre, 1 Swanst. 66. The recent case of Denn v. Roake, 5 B. & C. 732, may be regarded as settling the
The doctrine has been held to extend even to appointments of estates less than of freehold, as in Grant v. Lyman, 4 Russ. 292, where it was said by the Master of the Rolls, Sir John Leach, that “ there was no distinction between freeholds and leaseholds in the nature of the subjects, the difference being only in the quantity of interest; and that there did not appear to him to be any solid ground upon which it could he maintained, that a gift of a leasehold, where the donee of the power has no other leasehold than the subject of the power, does not equally manifest an intention to execute the power as the gift of a freehold under the same circumstances.”
This principle has been held to embrace the execution of a power to appoint specific personal estate, by a specific bequest of such personalty, as in the case of Walker v. Mackie, 4 Russell, 76, where a testatrix, having a power over certain sums in the three per cent, stock which were standing in the name of the Accountant-General
A general gift of moneys, securities for moneys, and other personal chattels, which are in their nature subject to constant change and fluctuation, stands upon very different principles, and as to them, the will must refer to them, as the subjects of the power, or they will not pass: Grant v. Lyman, 4 Russ. 292.
It is manifest that we must go dehors the will to ascertain the fact that the testator possessed no other real estate, or specific personalty to which a general devise or bequest thereof could apply, except that embraced in the power; in order to apply this principle to a given case. As to real estate, or specific personalty, this has been done without hesitation, as will be seen from the cases of Jones v. Curry, 1 Swanst. 72; Standen v. Standen, 2 Ves. Jr. 589; Sibley v. Perry, 7 Vesey, 522. All efforts, however, have been resisted to ascertain from the status of the testator’s general personal estate, at the time of his death, the existence of a state of things from which an inference could be drawn of his intention to execute a power over any general personal estate by a general or residuary bequest of all his personal property. Inquiries for this purpose have always been refused by Courts of Chancery, as leading to results too speculative, uncertain, and unsatisfactory to form the basis of judicial action: Jones v. Tucker, 2 Merivale, 533; Nancrek v. Horton, 7 Vesey, Jr. 398; Andrews v. Emmet, 2 Brown Ch. Rep. 303; Webb v. Honner, 1 Jacobs & Walker, 352.
Applying these principles to the case before us, it is quite clear that the will of Margaret Pepper was a sufficient execution of the power, as respects the real estate secured to herself by the deed of 1887, provided the will is executed in conformity to the requisitions of that power. She had no other real estate except that embraced in the power, nothing savouring of realty, that excepted. This is an undisputed fact. Of consequence this case comes directly within the principles discussed and adopted.
We are thus brought to the second branch of the inquiry, viz. Was the will executed in conformity to the requisition of the power ? By the deed of 1837, the power of appointment secured to Margaret Pepper, was to be executed “ by any writing under her hand and seal,
“If,” says Lord Ellenborough, in Hankins v. Kemp, 3 East, 420, “these circumstances be unessential and unimportant, except as they are required by the creator of the power, they can only be satisfied by a strictly literal and precise performance. They are incapable of admitting any substitution, because these requisitions have no other spirit in them that can be satisfied; incapable of receiving any equivalent, because they are in themselves of no value.” The case of Porter v. Turner, 3 S. & R. 108, is decided on these principles. There the testatrix, having a power to dispose of the property by any writing under her hand and seal, executed in the presence of two witnesses. This power the testatrix first attempted to execute by a testamentary writing in the form of a letter, signed, but not attested at the time of its date by any witness. Afterwards she added a codicil to this will, which was signed and sealed in the presence of three witnesses. At the same time she acknowledged
Since the passage of the recent English Statute of Wills, questions, such as those discussed, have practically ceased to arise in the Courts of that country. By that statute it is provided, that by bequests of all a testator’s real or personal estate, all property shall pass, over which he possessed a disposing power, either by direct ownership, or in virtue of any power of appointment; unless otherwise expressed by the will. And that if a will is executed in the manner prescribed by the Act, it shall sufficiently execute any power of appointment possessed by the testator, although other particular forms are required by the creator of the power.
With us, however, the law remains as before the statute. Its enactment shows the principles of the English Courts to have been so inveterately established on this subject as to require the potency of a statute to change them.
It would therefore follow, necessarily, from these premises, that the appointment in this case, not being under seal, is null, unless the fact that the devise is ultimately to enure to charitable uses, saves it from the operation of an otherwise general rule. That this ■would be the case in England at this time, if the bequests in this will had been bequests of mere personal estate, to continue as such, is clearly shown by the very recent case of Innes v. Sayer, 20 Law Journal Reports, 274. There, a power executed by a will made before the recent statute of wills, and defective in a manner analogous to the defect in execution in this case, was sustained as a good appointment to a charitable use. The principle established for centuries in the English chancery in this respect, has been that where an appointment is to a charity, any writing, however informal as an execution of the power, is good as an appointment within the statute of charitable uses. This celebrated statute was passed at a session of Parliament, which began on the 27th of October, and ended on the 19th of December, 1601. Its preamble and enactments show it to have been intended to provide new means for the assertion of existing recognised legal obligations and duties, and not to introduce anything new into law or equity, except new and vigorous remedies.
Although it would seem from precedents cited by Mr. Binney in his great argument in the latter case (p. 59), that equity had exercised, before the statute of 43 Elizabeth, a jurisdiction in all respects analogous to that exercised subsequently, yet most of the cases in the books are decisions since the statute, and purport to have been made under it. Most of these decisions were made under circumstances much more urgent than the present, and the relaxation in favour of charities extended to what might be called, and not too irreverently, extravagant lengths. In the Jesus College, or, as it is called in Hobart, Griffith Blood’s case, a devise to a charity was deemed good, although void by the statute of wills, 32 Henry 8, both as a devise of lands to a corporation in mortmain, and as the devise of all his lands by a tenant in eapite, when, by the statute of Henry, the right of disposition of lands in eapite by will was limited to two-thirds, one-third being required to descend: Hobart, 136; Duke on Charitable Uses, by Bridgeman, 363. This cause was decided in 1615.
In Revett’s case (1617), Duke, 366, Moore, 890, a decree by a copyholder without a previous surrender to his use, which, though void at law, was held good under the words “ limited and appointed” in the statute of 43 Elizabeth. In Roth’s case (1617), Duke, 368, Hobart, 136, Moore, 88, a devise of all the testator’s eapite lands to a charity was, though void at law, held within the relief of the statute. To the same effect as the former cases was Christ’s Church Hospital v. Hawes, Duke, 370, decided in 1670. In Stoddard’s case (1622), Duke, 373, a nuncupative will of a rent charge out of lands in favour of a charity was held good by the words “ or limitation and appointment,” being good as a limitation or appointment, though void as a gift. To the same effect was Hillom’s case, Duke, 375, (1629) and Worford Parish v. Parkhurst (1639), Duke, 378. In Platte v. St. John’s College, Duke, 375, the devise of a remainder was held good, without a particular estate to support it. “ This defect being made good,” said Lord Keeper Coventry, “ by the statute, by a benign and favourable interpretation for maintenance of charity, as in other cases upon statutes for piety and charity.” After the statute of frauds and perjuries, 29 Charles 2, ch. 3, which went into effect in 1677, wills of lands in favour of charities were required to be in the
It is true that this course of decisions met from time to time with resistance. Judges and text-writers have expressed their disapprobation of what they have termed its “ alarming extravagance;” of “the anomalies introduced by it, irreconcilable with any sound principle of judicial interpretation or proper exercise of judicial authorityof deduction being drawn from the statute of charitable uses “ which the makers of that statute never thought of;” but still these decisions have held their places in the law of charities, except where superseded by positive statute. Lord Chancellor Sugden, in The Incorporated Society v. Richards, 1 Drury & Warren, 300, after questioning their original propriety, concluded with saying “ that these cases have been too long the law of the land, and it is now too late to disturb them.” See Shelford on Mortmain, ch. 5, § 1, p. 514; Attorney-General v. Barnes, 2 Vernon, 597; Precedents in Chancery, 270; and Incorporated Society v. Richards, supra.
The growing dissatisfaction with them, however, led to the passage
This statute has been said to be improperly called, a statute of mortmain; being truly a statute to restrain gifts to charitable uses: Corbyn v. Trench, 4 Vesey, Jr. 427, per Aden, Master of the Rolls. It makes void all gifts of lands, or moneys, or personal property, to be laid out in the purchase of lands, for the benefit of any charitable use whatsoever, unless made by deed, sealed and delivered in the presence of two witnesses, twelve months before the death of the donor or grantor, and enrolled in the Court of Chancery within six months after execution, &c.; and unless the same be made to take effect in possession for the charitable uses intended immediately, and be without any power of revocation, reservation, trust, limitation, or agreement whatsoever, for the benefit of the donor or grantor, or any person or persons claiming under him.” The statute, and the numerous decisions under it, which fully carry out the policy of its framers, have heretofore foiled every ingenious attempt made to evade its provisions, and have rendered comparatively harmless the doctrines extended, if* not introduced, by the statute of 43 ’Eliz., leaving them only in vigour as to appointments of pure personalty, to be continued as such. Under this statute a bequest of moneys to arise from the sale of lands is void. This was decided by Lord Hardwicke, in The Attorney-General v. Weymouth, Ambler, 201. To the same effect is Parce v. The Archbishop of Canterbury, 14 Vesey, 360; Wastes. Webb, 6 Madd. 73. Hence the charitable bequests in the will before us would at this time be utterly void in England as to lands, though the power were otherwise ever so perfectly executed.
The statute of 9 George 2 never was in force in this state, and of consequence the law of charitable uses with us, stands unaffected by it. That the law of charitable uses has always formed part of our civil code, is not now an open question. It is true that the statute of 43 Eliz. as a statute never had an existence in this state, and simply because its peculiar machinery was wholly inapplicable to our colonial institutions. But its conservative provisions have been in force here by common usage and constitutional recognition, and not only these, but the more extensive range of charitable uses which chancery supported before that statute and beyond it: Zimmerman v. Anders, 6 W. & S. 218; Witman v. Lex, 17 S. & R. 88; M’Give v. Aaron, 1 Penn. Rep. 49; Mayor v. Wills, 3
Another question has presented itself in this case, of considerable gravity, in respect to the parties to whom the life and contingent bequests of this estate enure, before it finally reaches the charities. Suppose that equity will supply the defect in this appointment in
Two of the cases cited seem to intimate that the aid given by equity to defective assurances in favour of charities, is not extended to associated devises or bequests to individuals. In Platt v. St. John’s College, Sawbridge, Duke, 379, a tenant, seised in tail of copyhold land, made a surrender to the uses of his will, and suffered a recovery, in which no judgment was given against the vouchee, and afterwards devised the land by his will to his wife for life, Avith remainder to a charity. The Lord Keeper Littleton decided that “ the recovery was void at law to cut off the estate-tail, and as to the wife to Avhom the land was devised for life, the heirs had liberty given them to evict them; but as to the college, and to the remainder limited to them, the devise was good by the statute of 43 Eliz. of charitable uses, for there was a gift and limitation of the land to a charitable use, which shall not be avoided for want of a circumstance at law to make it good.” In the case of Pigott v. Penrice, already cited, which is a leading case as to the aid granted by equity to defective executions of powers in favour of charities, the power of revocation reserved by the grantor was adjudged Avell executed as to the charity, but void as to the other appointees, he-' cause not executed in the manner required by the settlement. In this case the power of revocation was also reserved by the settler herself, in the deed of settlement.
It is not, however, necessary now to rule this point, and which we do not intend to do. In holding the appointment to the executors of this will as trustees, good as respects the charities, we hold the estate appointed to be sufficiently vested in them to carry out all the IaAvful trusts of the will. If there exists any particular class of cestui que trusts, to whom the bounty of the testatrix cannot enure by reason of incurable defects in the donation to them, then the heirs-at-law of Margaret Pepper can make any reclamation they may legally have against that part or interest in the fund derived from the sale of the land, when in the hands of the trustees for appropriation, according to the terms of the trust. At that time the doubt that exists in this part of the case may be solved, and certainly we would rather desire that the appointment should be held good in toto, than partially good and partially bad; good as to the charity, but bad as to the other donees.
It follows, from the conclusions we have arrived at, that the application by the heirs-at-law in opposition to the executors and appoint