Appeal of Hacker ( 1888 )

Opinion,

Mr. Justice Clark :

The only question to be decided in this case is, whether or not Ellen Wain properly exercised the power of appointment given her in the last will and testament of her father, Jacob S. Wain, deceased. The testator, Jacob S. Wain, devised and bequeathed all his property, real, personal, and mixed, to certain persons named in his will upon certain trusts, viz.: to pay the net income thereof to his wife, Sarah M. Wain, during the term'of her life; at her death to apportion the trust estate into as many shares as he had children, and to convey to his sons, Henry and Edward, their respective shares in fee; to pay to each of his daughters, whether covert or single, the income of their respective shares for their maintenance and support ; or, in case of their marriage and death, to their surviving husbands or children respectively, as the case might be; “ and to convey the share of any unmarried daughter, or of a daughter dying married and without children, as she may by writing under her hand and seal, in nature of a last will and testament, executed in the presence of two witnesses, designate and appoint, and, in default of such appointment, to their or her brothers or sisters living, or if dead leaving issue, then to the said issue share and share alike.”

Ellen Wain, one of the daughters who was unmarried and without issue, made and published her last will and testament, wherein she undertook to exercise the power of appointment reposed in her by her father’s will, referring specially to the property covered by the trust, and over which she was invested with the power. Her will is in due form, was signed by her in the presence of two witnesses, was after her death duly probated and recorded, and it is conceded to be a perfectly valid disposition of her estate.

It is contended, however, that the will is not a valid exercise of the power because it is not in compliance with the donor’s directions in this, that it is not a writing under seal. The testimonium clause of the will is in these words: “ In witness thereof I have hereunto set my hand and seal; ” and to this is appended the signature in the form following: “ Ellen Wain — ” No wafer or scroll in the usual form was affixed for a seal, nor was there any flourish of the pen in lieu thereof other than the dash “ — ” following the name, which was perhaps from one sixteenth to one eighth of an inch in length, and was made by the pen apparently in connection with the signature. The estate of Ellen Wain was for life only; the fee, under this particular provision of her father’s will, was vested in those entitled in default of appointment, subject to be divested, however, on a proper execution of the power. It may be conceded too, that it was essential that the exercise of the power should be in strict compliance with the directions contained in the will of Jacob S. Wain, deceased; he was the owner of the entire estate, and had a right to dispose of it as he pleased; therefore, any terms which he saw fit to impose must be fulfilled, or the execution is fatally defective : Rutland v. Wythe, 10 Cl. & F. 419.

The world has outgrown the necessities of an age when men made their seals because they could not write; what then from necessity attested the very act of execution and the genuineness of it, is now but a mere arbitrary form, through which, however, special obligations still attach, in support of the well-recognized distinction between writings which are sealed and those that are not. “ Although in this and many of our sister States,” „says Chief Justice Tilghman, in Taylor v. Glaser, 2 S. & R. 502, “the law has been somewhat relaxed in favor of custom and convenience in doing business, yet this relaxation is confined to the manner of making a seal. Sealing and delivering is still the criterion of a specialty; and it is important that the distinction between specialties and writings should be preserved in the courts; because, in payment of debts due from the estates of deceased persons and in other cases the law makes the distinction. If it should be thought that in the present state of society it would be best to put all writings on the same footing, the legislature alone has power to accomplish it.”

That the writing should be “ under seal,” it may be conceded, was in this instance a mere technical requirement, which could not in any way affect the substance of the instrument, or add to or subtract from the testator’s rights; yet it was competent for him, as against a mere volunteer, not a charity, to impose any lawful restriction upon the execution of the power which his judgment would approve or his fancy suggest.

Was the will of Ellen Wain under seal? This is the question -upon which the determination of this case depends. It is plain that in the preparation of her last will, the testatrix intended to exercise this power of appointment and to exercise it in the way designated by the donor. She made particular reference to the property over which she had- the power, and in proper form and phrase disposed of it, designating and appointing the persons to receive it. She subscribed her name with the mark following, in the presence of two witnesses, and in the testimonium clause states, in terms, that she has affixed her hand and seal. Under such special circumstances may we not assume that the testatrix intended this dash of the pen as a seal ? A seal is not necessarily of .any particular form or figure ; when not of wax it is usually made in the form of a scroll, but the letters “ L. S. ” or the word “ Seal,” inclosed in brackets or in some other design, are in frequent use. It may, however, consist of the outline without any inclosure ; it may have a dark ground or a light one; it may be in the form of a circle, an ellipse, or a scroll, or it may be irregular in form; it may be a simple dash or flourish of the pen : Long v. Ramsay, 1 S. & R. 72. Its precise form cannot be defined; that, in each case, will depend wholly upon the taste .or fancy of the person who makes it.

The mere fact that in the testimonium clause the testatrix states that she has affixed her hand and seal, is insufficient to constitute the instrument a writing under seal, if in fact there be no seal; but if there be any mark or impression which might reasonably be taken for a seal, this statement of the testatrix will certainly afford the strongest evidence that the mark was so intended. In Taylor v. Glaser, supra, there was nothing but a flourish of the pen below the signature, and it was offered to be shown that this accompanied Glaser’s ordinary signature. There was nothing on the face of the paper, which, in the opinion of the court, the obligor could have intended for a seal. To the same effect is the case of Duncan v. Duncan, 1 W. 322, where a ribbon had been inserted, manifestly as a preliminary to the act of sealing, which act was never performed.

Whether the instrument is under seal or not, is a question to be determined by the court upon inspection ; and whether or not any mark or impression shall be held to be a seal-, depencls wholly upon the intention of the party executing the instrument, as exhibited on the face of the paper itself. The dash which follows the signature in this case, it must be conceded, is not in the usual or ordinary form of a seal, but as no particular form is prescribed by law, we think that upon a consideration of the plain requirements of the writing creating the power, and of the manifest purpose and effort of the testatrix to execute that power, in the manner designated, and her avowed purpose to affix a seal, together with the presence of a mark or flourish of the pen, which may be taken as such, we are justified in assuming that the mark was made and intended for a seal, and that the writing is in this respect in compliance with the donor’s directions. It is said that the same or a similar mark is found in other parte of the will, used for punctuation, and that this is a circumstance evidencing a different intention of the testatrix. But if the testatrix did use a mark in this form indifferently for a comma, a colon, or a period, what good reason is there for supposing she did not also use it for a seal ?

The decree of the Orphans’ Court is reversed, and the record remitted, in order that a decree may be made in accordance with this opinion.