416 Pa. 249 | Pa. | 1965
Opinion by
Where a testator in a eoneededly valid will gives to a named executor his residuary estate for “distribution to and amongst such local charities as he [the executor] shall determine in his sole discretion”, does the executor in his representative capacity, under the Register of Wills Act of 1951,
On September 19, 1959, Robert M. Thompson (testator) made a will wherein he appointed L. S. Mosher as sole executor. In the 19 th paragraph of that will, testator gave the “executor” certain personal effects, “in trust nevertheless, to distribute the same among such persons and in the manner as indicated by a memorandum to be enclosed in the envelope with this will but not to be recorded as a part of it”. Under the 20th paragraph, testator gave the “executor” all the residuary estate
The codicil — the validity of which is attacked — purports to have been executed on April 26, 1962. Insofar as presently pertinent,
Preliminary objections filed by Myra Parkhurst averred: (a) that Mosher lacked standing to appeal from the probate of the codicil and (b) that the appeal petition failed to set forth specifically the facts relied upon to sustain the several charges. Notice was given by Mosher to the Attorney General as parens patriae and St. Barnabas House and Erie City School District were permitted by the court to join as petitioner-appellants.
The court below sustained the preliminary objections
Initially, we must inquire into the nature of the gift provided in the 20th paragraph of the will to determine Mosher’s status thereunder. This gift was of the entire residuary estate and the language employed unequivocally indicates that the gift was not to Mosher but to “local charities” of Erie. Which of the class of “local charities” was to receive and how much each of the “local charities” selected was to receive were expressly left by testator to Mosher’s determination, choice and discretion and his conduct in making such determination. and choice and in the exercise of his discretion was not to be questioned.
Almost a century ago, this Court speaking through Justice (later Chief Justice) Sharswood, in Helfenstein’s Estate, 77 Pa. 328, 331, said: “There is no prescribed form for the declaration of a trust.” Such is-
The provisions in the 20th paragraph are not novel. We have construed similar provisions as creating charitable trusts and considered the executors therein to be acting in the capacity of trustees: Kinike’s Estate, 155 Pa. 101, 25 A. 1016 (testator directed the executors “to distribute [the residuary estate] among such charitable institutions, and in such proportions as they in their discretion deem proper”) ; Murphy’s Estate, 184 Pa. 310, 311, 39 A. 70 (testator directed the residuary estate “be divided among such benevolent, charitable and religious institutions and associations as shall be selected by my executors, or their successors”) ; Dulles’s Estate, 218 Pa. 162, 164, 67 A. 49 (testatrix directed her executors “to pay over, appropriate, dispose of and distribute [the residuary es
A study of the 20th paragraph of the will indicates that, while Mosher is nominally an executor, actually he is a trustee clothed with the duties of a trustee.
If the codicil stands, the provisions of the 20th paragraph are cancelled and the charitable trust therein provided never comes into existence. To the extent that the codicil prevails, the testator’s intentions expressed in the 20th paragraph of this eoncededly valid will are frustrated, the trust fails and the as-yet-unascertained “local charities” are deprived of the residuary estate. Such “local charities” are without standing to appeal (cf. Atlee Estate, 406 Pa. 528, 178 A. 2d 722), although the Attorney General as parens patriae may represent their interest. Under such circumstances, does Mosher, in his capacity of trustee, have standing to appeal from the probate of this codicil destructive of the trust, the testator’s expressed intent and the “local charities” interests?
A case most apposite to the case at bar is O’Leary v. McGuinness, 140 Conn. 80, 98 A. 2d 660. Testatrix in her will gave her residuary estate “to [her] executors” to be paid by them to such charities as they in
We need not rely, however, on these decisions from other jurisdictions, compelling in their reasoning as they are, because the language of our statute (Register of Wills Act, supra), i.e., “a fiduciary whose estate or trust is so aggrieved” and the rationale of our case law (Elliott Estate, 388 Pa. 321, 325, 131 A. 2d 357; Neafie’s Estate, 199 Pa. 307, 49 A. 129) compels our recognition of Mosher’s right to appeal from the pro
The fact that the Attorney General, as parens patriae, represents the interests of the unascertained “local charities” does not foreclose Mosher’s right of appeal.
In sustaining the preliminary objections upon the ground that Mosher lacked standing to appeal from the probate of the codicil, the court below erred and its decree in this respect must be reversed.
Certain other matters remain for our consideration. The preliminary objections further questioned the sufficiency of Mosher’s appeal petition on the ground that the petition did not allege sufficient factual support for its averments of lack of testamentary capacity and undue influence. The court below, relying on Shaffer’s Estate, 332 Pa. 225, 2 A. 2d 764, and Hochberger Estate, No. 2, 72 Pa. D. & C. 454, held that the appeal petition was deficient in this respect and upheld the preliminary objections as to Mosher on this
Mosher’s appeal from the probate of the codicil in the court below was followed by several motions on his part seeking discovery by way of depositions and by the production and inspection of documents. The court below refused, in separate orders, such motions principally on the ground that they sought discovery in too broad a manner. At this time, we need not pass on the propriety of the court’s action in this respect in view of our disposition of this matter by way of remand to the court below.
From a study of this record and the applicable case law, two conclusions are inevitable: first, that Mosher does have standing to appeal from the probate of the codicil and, second, that Mosher must aver in an amended appeal petition sufficient facts and circumstances to support his averments of lack of testamentary capacity and undue influence. Such conclusions compel that we remand the matter for further proceeding in the Orphans’ Court of Erie County.
Since we are remanding this matter for further proceedings and since it is inevitable that, either for the preparation of pleadings or the preparation for and trial of the cause, further attempts at discovery will be made, it may not be amiss to point out that, since there is a pending action, the Orphans’ Court has
The case at bar is one of grave concern and importance. The circumstances presented on this record are such as demand that all parties be given their “day in court”. We in no manner presume to pass upon the merits of this controversy; we simply note that this record portrays a situation requiring on the part of the Orphans’ Court the strictest of scrutiny that the rights of the “local charities” of Erie, of Myra Parkhurst, of Mosher and of all other parties concerned be fully protected.
Decree reversed and the matter remanded to the Orphans’ Court of Erie County for proceedings consistent with the views expressed in this opinion.
Consisting of the bulk of an estate valued in excess of $700,-000.
Greenwood, witnessed the 1959 will.
Under the 4th paragraph of the will, testator permitted his housekeeper, Mary Verstreet, to occupy certain realty during her lifetime and spinsterhood and directed that the property, after her death, be sold and the proceeds given to a charity, St. Barnabas House, North East, Pennsylvania: Item I of the codicil cancelled the 4th paragraph of the will and substituted therefor a new paragraph wherein testator gave his “stocks, corporate bonds, and U.. S. Government Bonds” to one Myra Parkhurst. Under the 16th paragraph of the will certain valuable antique items were given to the Erie Public Museum, owned by the Erie Oity School District; this gift was cancelled by Item V of the codicil.
There is no doubt that if the codicil is valid, testator’s testamentary disposition to charities of his residuary estate under the will is ■ completely nullified. Unlike the duty imposed upon the executor, by the terms of the will, to dispose of the residuary estate to -local charities in Erie, the codicil gives the residuary estate outright and in fee to Myra Parkhurst and any disposition of any part of the residuary estate to charities — any charities as
Averments in paragraph 2 of the petition of appeal from probate.
The petition further avers that Myra Parkhurst, an Erie nonresident, came to Erie in April 1962; that within a month she moved into testator’s home; removed his housekeeper; secured his power of attorney; entered testator’s safe deposit boxes; secured the right to draw his checks; secured the execution of the codicil; then was ordered out of his home by testator. Myra Parkhurst was not related by blood to testator.
In an opinion labeled “Opinion No. 3”.
As was said in Domestic and Foreign Missionary Society’s Appeal, 30 Pa. 425, 435: “. . . individual designation is left to the-trustee, wlio is tie dispenser of the bounty, and who is under obligation to dispense within the class”.
See also: Schleicher’s Estate, 201 Pa. 612, 51 A. 329; DeSilver’s Estate, 211 Pa. 459, 60 A. 1048; Kimberly’s Estate (No. 1), 249 Pa. 469, 95 A. 82; Barnwell’s Estate, 269 Pa. 443, 112 A. 535; Thompson’s Estate, 282 Pa. 30, 127 A. 446; Voegtly Estate, 396 Pa. 90, 151 A. 2d 593; Little Estate, 403 Pa. 247, 168 A. 2d 738. Cf. Beck’s Appeal, 116 Pa. 547, 9 A. 942; Watts’s Estate, 202 Pa. 85, 51 A. 588.
What testator gave Mosher was not a discretion to distribute the residuary estate willy-nilly. On the contrary, testator clearly indicated his intent that the “local charities” of Brie were to be the beneficiaries of the residuary estate and testator entrusted Mosher with the duty to carry out such purpose, leaving to him the selection of the particular “local charities” and the division among such “local charities”. Cf. McCurdy’s Appeal, 124 Pa. 99, 112, 113, 16 A. 626.
See also: Howard Savings Institution v. Peep, 34 N.J. 494, 170 A. 2d 39; Jackson v. Johnigan, Jr., 110 Ohio App. 532, 170 N.E. 2d 79; In Re Huling’s Estate, 105 Colo. 475, 99 P. 2d 194; Waterbury Trust Co. v. Porter, 130 Conn. 494, 35 A. 2d 837; Stein v. La Salle Nat’l Bank, 328 Ill. App. 3, 65 N.E. 2d 216; Cheever v. Washtenaw Circuit Judge, 45 Mich. 6, 7 N.W. 186; Ripley v. Brown, 218 Mass. 33, 105 N.E. 637. Contra: Freeman v. De Hart (Mo. App.), 303 S.W. 2d 217; 4 Am. Jur. 2d §§206, 213; 6 A.L.R. 2d 152.
In the case at bar, the Attorney General took no appeal. Mosher argues that the Attorney General is faced with a conflict of interest in that the Commonwealth, on the basis of the validity of the codicil, has already received $90,000 on account of the estate’s tax liability and that, if the codicil prevails, the Commonwealth is enriched taxwise whereas, if the codicil fails, the Commonwealth will lose taxwise. This argument lacks appeal. We are fully satisfied that the Attorney General has and will continue to hold paramount his duty as parens patriae and that he will not be influenced by any interest in tax gathering on the part of the Commonwealth.
The contention of appellee as to prematurity of this appeal has been considered and dismissed.