Stinson's Estate , 232 Pa. 218 ( 1911 )

Opinion by

Mr. Justice Brown,

By a will in her own handwriting, and signed by her more than one calendar month before her death, the testatrix devoted nearly all of her estate to the establishment of a charity, but, under the decree of the court below, her intention cannot be given effect, and her next of kin will take what she wished to go elsewhere, because of her failure to have her will attested by two disinterested witnesses, as required by the Act of April 26, 1855, P. L. 328. That portion of her will by which she intended to found a charity is as follows: “ I give and bequeath my property at the corner of Airy and Church Streets in the Borough of Norristown to start and use for a Women’s Christian Association. I, give and bequeath my furniture, organ, carpets, piano, bedding, linen, silverware, sewing machines to be used with care in the Women’s Christian Association. I, give and bequeath the residue of my estate to the Women’s Christian Association and the interest thereon arising for an endowment fund for said institution. Hereby revoking all former wills. I, hereby appoint or wish the institution to be carried out upon the plan of the Women’s Christian Association of Philadelphia, 18th and Arch Sts. with the exception that this institution is for Protestants only. I would like the Executive Committee to consist of the following ladies, Mrs. F. D. Sower, Mrs. Robert N. Wood, 531 Cherry St., Mrs. John K. Ralston, Mrs. H. M. Bunting, Mrs. Ella R. Wright, all of the Borough of Norristown, Executive Committee being empowered to select other ladies, who are willing to work faithfully for the Institution.”

The two attesting witnesses to the execution of the will were John K. Ralston and his wife, Anna M. F. Ralston, called by the testatrix “Mrs. John K. Ralston” when she named those whom she wished to compose the executive committee of the Women’s Christian Association, and from the finding of the court below that Mrs. Ralston was not a disinterested witness at the time she attested the execution of the will there followed a decree of distribution from which we have this appeal.

Though the testatrix used words precatory in form in saying who should compose the executive committee of the charity which she intended to establish, she used them to express her will and intention as to the composition of that committee, and they are, therefore, to be regarded as mandatory. The rule as to this is that, when precatory words are used merely for the purpose of advising or influencing, or as expressive of a wish or desire that the legatee or devisees make a certain use of the testator’s bounty, they are not obligatory upon those to whom they are addressed; but when used to express his manifest intention to control or direct, they are mandatory, and will be so construed in saying what effect is to be given to them: Pennock’s Estate, 8 Harris, 268; Burt v. Herron, 66 Pa. 400; Presbyterian Board of Foreign Missions v. Culp, 151 Pa. 467; Dickinson’s Estate, 209 Pa. 59; Colton v. Colton, 127 U. S. 300; Warner v. Bates, 98 Mass. 274; Phillips v. Phillips et al., 112 N. Y. 197; 1 Jar-man on Wills, 680. “All the cases upon a subject like this,” said Lord Chancellor Cottenham in Shaw v. Lawless, 5 Cl. & Finn. 129, 153, “must proceed on a consideration of what was the intention of the testator.” In Williams v. Williams, 1 Simons (N. S.), 358, 369, Vice Chancellor Cranworth said: “The point really to be decided in all these cases is whether, looking at the whole context of the will, the testator has meant to impose an obligation on his legatee to carry his express wishes into effect, or whether, having expressed his wishes, he has meant to leave it to the legatee to act on them or not at his discretion'. I doubt if there can exist any formula for bringing to a direct test the question whether words of request, or hope, or recommendation are or are not to be construed as obligatory,”

The Women’s Christian Association of Norristown was to be the sole creation of the testatrix, and when she said “I, hereby appoint or wish the Institution to be carried out upon the plan of the Women’s Christian Association of Philadelphia,” she meant that she ordained and directed that the institution should be carried out upon that plan. That the words she thus used are to be regarded as mandatory cannot be questioned. Remembering, however, that the executive committee of that association was to be composed of its officers, together with the chairmen of the standing committees, and being unwilling that the executive committee of her charity should be so made up, she proceeded, in immediate connection with her concededly mandatory words, to say: “I would like the Executive Committee to Consist of the following ladies,” whom she named: This was but a continuance of her expressed intention as to how her intended charity was to be “carried out,” and to that intention effect must be given under all the authorities. The word “like,” as the court below properly held, expressed the intention of the testatrix, and, though precatory in form, it none the less declared the state of her mind and showed that one of the essential elements of the scheme which she prescribed for her proposed charity was an executive committee to consist in part of Mrs. Ralston. The sole question before us on this appeal is as to the interest of Mrs. Ralston at the time she attested the execution of the will.

The expressed intention of the testatrix, that Mrs. Ralston should be one of the executive committee of the Women’s Christian Association, would be given effect if the charity which she intended to establish had been created and endowed in accordance with the requirements of the act of 1855. If her will had been attested by two disinterested witnesses, the charity would have come into existence upon her death, and, under her expressed intention that it should be conducted upon the plan of the Women’s Christian Association of Philadelphia, at Eighteenth and Arch Streets, the general plan of that association would be its general plan; but its first executive committee would consist of the persons whom she named. The Women’s Christian Association of Philadelphia was established for the temporal, moral and religious welfare of women, especially young women, who are dependent upon their own exertions for support. The general management of this association is controlled by a board of managers, with large general powers, among which are those specially given by the ninth by-law. It is as follows: “The board of managers shall have full power and authority to enter into any contract or agreement that they may deem best for the interests of the association, for the lease or purchase of any real estate or property needful or necessary for the use or enjoyment of the said association. The said board of managers shall also have full power and authority to sell, mortgage, or lease any real estate or property held by or belonging to said association, and to extinguish any ground rent or rents issuing thereout or owned by said association. They shall also have full power and authority to authorize the due execution and delivery of any and all such deed, deeds, conveyances, mortgages, agreements, contracts or other assurances in the law needful and necessary to effectuate the same.” By the seventh by-law it is made the duty of the executive committee “to act for the board, and suggest such measures as they may deem expedient,” their proceedings being subject to the approval of the board. It is to be presumed that the testatrix had these provisions in her mind when she wrote and signed her will. She directed that the general plan of this association should be the model upon which her charity was to be conducted, except as to the composition of its first executive committee. The functions of that committee, however, in the absence of any direction by the testatrix to the contrary, were to be those of the executive committee of the Women’s Christian Association of Philadelphia, and, in view of the provisions of the by-laws of that institution, the court below properly found: “The functions, powers and duties of the ‘Executive Committee ’ mentioned in the will of Agnes J. Stinson of which committee she appointed said Anna M. F. Ralston a member, are of a most comprehensive, important and material character, in the maintenance, direction, management and government of the charity which said Agnes J. Stinson intended to establish under the name of the ' Women’s Christian Association.’ ”

The disqualifying interest of a witness to the execution of a deed or will, within the meaning of the act of 1855, is an interest in an existing charity for which a grant is made by a deed or a bequest or devise is given by a will, or it is one in a charity created by the grantor or testator, but the rule as to disqualification is the same in each case. In testing the qualification of witnesses to the execution of a deed or will by which a charity is created the situation is just the same as if the charity was in existence and the grantor or testator would make additional provision for it. Many charities are originally established by testators just as this testatrix wished to establish one, and the purpose of the act of 1855 is to exclude from witnesses qualified to attest the execution of such a will anyone who may by its terms be interested in the intended charity. “The interest which disqualifies a witness under the act is such an interest as appears to exist at the time of the execution of the will, either by the terms of the will itself or by reason of the attesting witness being then interested in the religious or charitable institutions for which provision is made by the testator, or both, or either, as the case may be:” Kessler’s Estate, 221 Pa. 314. The disqualifying interest of Mrs. Ralston as a witness appears from the will itself, and to say that it is an uncertain, remote or contingent one, not within the contemplation of the act of 1855, because the. charity was to come into existence only upon the death of the testatrix, provided she had not revoked her will, and provided further that Mrs. Ralston would, if she had lived, have consented to act as a member of the executive conunittee, would be to strike down the act in every case in which one of the attesting witnesses to ¡ a will is, by its terms, made interested in a charity created by it. The act is intended as much for such a case as if the bequest or devise is to a charity in existence at the time of the execution of the will in which the testator would make it the object, or one of the objects, of his bounty.

The learned judge below aptly says of the appointment of Mrs. Ralston by the testatrix as a member of the executive committee of the association which she would have established, that by such appointment she built Mrs. Ralston into the very structure of the official organization of the proposed charity, and, for the purpose of passing upon the question of her interest as a witness to the will, she is inseparable from it. Proceeding, he further says: “The testatrix has made the 'Executive Committee’ the very nucleus of the organization of the proposed institution; and of that nucleus the challenged witness is a component part. It is quite evident that the testatrix appointed the 'Executive Committee,’ with the expectation, that they, as persons directly interested, would organize the charity; and that the finished product should be the fruit of their deliberations. If that was not her expectation, why did she stop there? What interest, then, could be more vital than that of the members of the 'Executive Committee,’ at this point; to say nothing of the functions, powers and duties vested in and imposed upon them, by the seventh section of the by-laws of the Philadelphia institution, adopted as a model by the testatrix.”

The foregoing corréctly states the situation, and, under Kessler’s Estate, supra, and Fetterhoff’s Estate, 228 Pa. 535, the conclusion reached by the learned court below, that the decedent’s proposed charity must fail, could not be avoided.

Appeal dismissed and decree affirmed, at the costs of the appellants.