232 Pa. 98 | Pa. | 1911
Opinion by
The question we have to determine is, whether under the evidence submitted, a secret trust attaches to an alternative bequest, which by the terms of the will was to become effective in case the testatrix died within thirty days after the execution of her will. The appeal is by the brothers and next of kin of the testatrix from a decree of the orphans’ court of Philadelphia county adjudicating the account of the executors and trustees, and awarding the fund absolutely to the residuary legatee named in the will. The claim made on their behalf is that the bequest though in terms absolute, was made with a tacit understanding that in case the charitable bequests contained in the will failed by reason of death within thirty days from the date of the execution of the will, the alternative
“And upon the further trust, upon the death of the last survivor of the said annuitants, in trust to pay over, transfer and deliver the whole of my residuary estate as it may then be constituted unto the University of Pennsylvania.”
The codicil as prepared by Mr. Simpler was as follows: “Whereas there may be a question as to the legality of the bequests to the University of Pennsylvania and to the charities named as beneficiaries in my said will in case of my death within thirty days after the date of said will, now in case I shall die within thirty days after this date, I hereby revoke the said bequests to St. Joseph’s Hospital of five thousand dollars, to the Presbyterian Home for Aged Couples and Aged Men located at Bala, of Twenty five thousand dollars, to the University of Pennsylvania of One hundred thousand dollars, and the residuary bequests to the said University of Pennsylvania, and in lieu thereof, I give, devise and bequeath the sum of One hundred and thirty thousand dollars to
“ And as to the rest, residue and remainder of my estate, and after the termination of the annuities as provided in my said will, I give and devise and bequeath the same to .”
The only change made in the codicil before execution
This brings us to the material inquiry in the case; and that our recital of the facts in connection therewith may be entirely accurate we shall quote from the record the testimony of the several witnesses. Mr. Simpler, the scrivener, having testified that on writing up the will in accordance with the instructions Mrs. Stirk had given him on Saturday night, it occurred to him that in case the operation contemplated should prove fatal the charitable bequests would fall, and that he therefore prepared a skeleton of a codicil, and took that with the will; that the will was entirely satisfactory, and was executed, and that then the codicil was taken up; his further examination proceeded as follows: Q. “Had she, [testatrix] given you any instructions about the codicil prior to that? ” A. “She had not.” Q. “The codicil, then, was your suggestion?” A. “ Was my suggestion, to take care of the possible intestacy, because she had expressed herself to me as having provided for everybody in whom she had any interest, under the terms of the will, including the money to go as the residuary clause provided.” Q. “In preparing the codicil, you prepared it as a skeleton, with the names of the beneficiaries blank? ” A. “Exactly.” Q. “At the time you received your instructions as to the preparation of the will, was anything said as to the alternative bequests under the codicil?” A. “Nothing.” Q. “The codicil was not referred to?” A. “The codicil was not referred to, because as I say, the possible fatal termination of the operation did not occur to me until I sat in the quiet of my office on Sunday night and had the will prepared.” Q. “ When you went back with the skeleton of the codicil, what did you say to her in connection with that? ” A. “ I told her that in case of her death within thirty days, the law said that a gift to a charity was void, and that the law also said that a gift to any person in trust to pay to a charity was void; and that therefore it became necessary
Mr. Simpler had brought with him two of his assistants in the trust company to attest the execution of the will. They were not introduced into the room where testatrix was until after the conversation between Mr. Simpler and the testatrix has occurred, and their testimony was confined to the act of execution. John F. Case, one of these, testifies that together they were called in to attest the will; that having subscribed as witnesses to the will proper they remained in the room while Mr. Simpler took up the matter of the codicil. This witness was then asked the question, “Now tell us what you heard, so far as you remember?” His answer was: “After the clause in the codicil where the bequest of $130,000 is revoked, Mrs. Stirk requested Dr. Stirk’s name to be inserted, after which she requested Mr. Simpler to run his pen through the words immediately following Dr. Stirk’s name, which he did, and Mrs. Stirk put her initials on the margin, and after that she suggested that the residuary estate be left to the Land Title & Trust Company.” Q. “What was the conversation between Mrs. Stirk and Mr. Simpler— what did each of them say — at the time in your presence in relation to the codicil?” A. “As I remember, there was not much conversation. I think Mr. Simpler spoke something to this effect — as to whom should this residuary estate be left, and she said, ‘the Land Title & Trust Company,’ and then he asked her to write the Land Title & Trust Company’s name in the codicil, to which she demurred, it being a long name, and Mr. Simpler said he would write the name in if she would put her initials on
The testimony of the other attesting witness, Mr. Glenn, was to the same effect. Dr. Stirk, the husband, testified that he was present when the name of the Land Title & Trust Company was inserted in the codicil. He was asked, Q. “Can you give us any conversation that took place at that particular time?” A. “The only conversation that I can recall is when Mr. Simpler said, ‘Now, there is a residue, what shall we do with that?’ and she says, ‘Oh, give that to the Land Title Company? ’ ” Q. “Just in that way?” A. “She remarked at the same time that she had made provisions for every one else that she cared anything about, and she would give that to them.” Q. “Did she give any direction as to how they should dispose of it?” A. “None whatever; just simply ordered it to be given to the Land Title Company.” Q. “Did you suggest anything to her?” A. “Absolutely not.” Q. “Did you raise any question or make any suggestion as to the propriety of giving this to a corporation for profit?” A. “I had no reason to.” Q. “Or a total stranger?” A. “Absolutely none.”
We have been careful to recite all the testimony bearing upon the immediate question with which we have to deal. These additional facts, however, appear in the case, which are to be noticed. The estate which was disposed of under this will the testatrix had derived in most part, if not wholly, from her first husband; she was not a stockholder in the trust company, and so far as appears was not even a depositor; and again, so far as appears, she was unacquainted with anyone interested in it except Mr. Simpler; and still again, the Land Title & Trust Company is neither a religious nor charitable, nor educational institution, but one exclusively for profit. The first question that naturally arises is, why should the testatrix, whose governing desire and evident purpose, as declared in- her will,
But her understanding and intention while important are not decisive of the question. Mere expectation on her part that the trust company, in case the gift to it became effective, would dispose of the property to and among the charities she had designated, would not convert what by its terms is an absolute gift into a trust. The assent of the party to whom the gift is made must appear as well. “If an absolute estate is devised, but upon a secret trust assented to by the devisee, either expressly or impliedly, by knowledge and silence before the death of the testator, a court of equity will fasten a trust on him on the grounds of fraud and consequently the statute of mortmain will avoid the devise if the trust is in favor of a charity. If the devisee has no part in the devise and no knowledge of it until after the death of the testator, theré is no ground upon which equity can fasten such a trust on him even though, after it comes to his knowledge, he should express an intention of conforming to the wishes of the testator:” Schultz’s App., 80 Pa. 396.
It follows that however much this testatrix misapprehended the legal effect of her testamentary act, except as her misapprehension was designedly encouraged by another, it is too late to correct the mistake. We turn now to the acts and conduct of the scrivener in connection with the transaction. If it be found that he knew or had reason to believe, that the testatrix was executing the codicil he prepared in the belief that the gift to the trust company, though absolute on its face, was but a method adopted to secure in any event her gift to the charities designated in the will, and kept silence, the law will charge him with assent, and acquiescence and will imply a trust arising from
Upon a review of all the testimony, and having in mind the situation and surroundings of the testatrix, the character of the gift to the trust company, which if absolute, in the language of the learned auditing judge, is “incomprehensible and almost incredible,” we are constrained to the conclusion that it was the understanding of both the testatrix and Mr. Simpler, notwithstanding that neither communicated in words such understanding to the other, that the bequest to the Land Title & Trust Company, though by its terms absolute, was with a purpose to secure to the charities designated in the will the bequests therein given them, in any and every event; and that nothing more was intended than that the trust company should be a medium of transmission. It follows that it is as though the bequests were given directly to the charities, and the testatrix having died within thirty days from the execution of the will, the bequest falls and so much of the estate is to be distributed under the intestate laws of the state.
We are quite aware that the case upon its facts is without exact parallel; nevertheless, its main and essential features bring it within the operation of established and familiar principles, and these we. have applied. With the statute out of the way we would hold without question that the absolute bequest to the trust company was impressed with a trust for the charities. For the reasons given the decree in this case awarding the fund to the Land Title & Trust Company is reversed, and the record is remitted for distribution of that fund in accordance with the views here expressed.