Palethorp's Estate

Opinion by

Mr. Justice Elkin,

In the presence of two subscribing witnesses the testator signed and published his will 3d January, 1913. After directing that a tomb be erected on the family burial lot in the cemetery, he gave his entire estate to charitable uses, and named the Provident Life & Trust Company as executor and trustee. The execution of the will was witnessed by B. F. Jones, who at the time was an employee in the trust department of appellant, and by Richard T. Cadbury, assistant to the trust officer and a stockholder in said corporation. The primary question for decision is whether the execution of the will was attested by “two credible, and, at the time, disinterested witnesses” as the Act of April 26, 1855, P. L. 328, requires ; and as to several of the bequests it is necessary to determine what constitutes “a disinterested witness” under the Act of 7th June, 1911, P. L. 702. As to the witness, Jones, nothing need be said for the reason that the record does not disclose anything to indicate that he was interested, within the meaning of the statutes, either in the trustee corporation or in any of the charitable institutions named as beneficiaries. As to Cadbury the situation is very different. He is a stockholder in the corporation named not only as executor under the will but as trustee, having the management and control of two of the charitable bequests, and said trustee is also the residuary legatee, with power to appropriate the income perpetually to such charitable uses as it “may deem wise.” The trustee is given broad and comprehensive powers in the administration of the trust estate, all of which goes to worthy charities under the provisions of the will. These powers give the trustee authority to retain the assets, investments, securities and real estate which comprise the principal of the estate, for any length of time it may deem expedient; to invest and reinvest the principal of the trust estate, and to sell and dispose of all or any part of the assets, investments, securities and real estate for such price and upon such terms as the executor and trustee in their respective capacities may deem fit and proper; and to make, execfite and deliver such deeds, assignments, transfers and other legal instruments as may be required to pass title in fee simple or otherwise, free and discharged of all trusts. In other words the trustee, as to such property as comes into its hands, has the absolute power of control and administration, subject of course to such directions as the testator' gave in those clauses of his will making specific bequests for charitable uses to certain named beneficiaries. It would be difficult to conceive of a trustee possessing greater powers than the testator in the disposition of his estate thought proper to confer upon those selected by him to administer it. The appellant corporation was appointed to servé in the dual capacity of executor and trustee, and while interested in both relations, for the purpose of this case we need only consider how he is interested as trustee. According to the established facts in this case, it is within the bounds of exact statement to say, that under the rule of all our cases the corporation itself had such an interest as to disqualify its officers or managers acting upon its authority and in its behalf as an attesting witness under the Act of 1855'. If the interest of the corporation was a disqualifying one, it would seem to necessarily follow that the interest of a stockholder must be so regarded. The stockholders own and control the corporation, and whatever benefits accrue to the. corporate body inures to the stockholders in dividends, increased earnings, assets or investments which add value. In determining what constitutes a disqualifying interest of an attesting witness to a will under our statutes, a corporation as a legal entity cannot be differentiated from ■ its shareholders who are the real owners of the corporate property, who control and direct its business affairs, and who are responsible for those in charge of its management.

We, therefore, concur in the views expressed by the learned auditing judge and by the court in banc upon the question of Cadbury being interested in certain charitable bequests and hence disqualified under the Act of 1855 as an attesting witness in so far as these gifts are involved.

What has been said applies to the bequest of $50,000 in the fourth clause of the will, and to the sixteenth clause which gave the residuary estate to the trustee for charitable uses.

In the fifth clause the testator gave $10,000 to The Pennsylvania Academy of Fine Arts, which is an incorporated society, with shares of stock issued and outstanding. Cadbury was a stockholder in this corporation and the court held that he had such an interest in the charity to be benefited by the gift as to disqualify him as a witness to the will. It was decided in Kessler’s Est., 221 Pa. 314, that if a subscribing witness be interested at the time of attestation in a charitable institution named as a beneficiary under the will, he is not disinterested within the meaning of the statute. Cadbury was interested as a stockholder in the Academy of Fine Arts, and therefore came within the letter and spirit of the rule. The fact that an attesting witness may own one share, or five shares, or ten shares, or fifty shares, can make no material difference in the application of the principle involved. In many instances the rule may seem to be a harsh one, but the legislature had the power to prescribe how testamentary writings shall be executed and by whom they shall be attested, and having exercised that power by requiring wills containing charitable bequests to be attested by “two credible, and, at the time disinterested witnesses,” it is the duty of the courts to enforce the law as it is written. If ,for any reason it be deemed wise to change or modify this rule pf law the question should be brought to the attention of the legislature and not to the courts.

The first assignment of error relates to the bequest of $150,000 for the care of the cemetery lot in which the testator was buried. We do not find any reference to this question in the printed argument and must conclude that counsel for appellant do not care to press it. The reasoning of the learned auditing judge as to this item is convincing and the equitable disposition made for setting aside a proper sum for this purpose should meet with the commendation of all concerned.

We entirely agree with the learned court below that only those gifts to religious and charitable uses, in which the attesting, witness had an interest, are invalid under the Act of 1911. The learned judge who wrote the opinion of the court in banc has discussed this question in such a clear and convincing manner that we might well adopt his language as expressing the views of this court. But since it is a new question we will discuss it very briefly on the cross appeal from the same decree now pending here, upon which appeal we are asked to reverse the court below for sustaining the legacies bequeathed to religious and charitable uses by the sixth and subsequent clauses of the will to and including the fifteenth.

Assignments of error overruled and decree affirmed. Costs to be paid out of the estate.