DocketNumber: Appeal, No. 94
Citation Numbers: 47 Pa. Super. 428
Judges: Beaver, Head, Henderson, Porter, Rice
Filed Date: 7/13/1911
Status: Precedential
Modified Date: 2/18/2022
Opinion by
Samuel Hamilton, of Pittsburg, was a prominent business man who died possessed of a very considerable estate. He designated with great particularity how that estate was to be used. He was influenced in directing the distribution by sentiments which were entirely creditable to him and which included (a) affectionate remembrance of his wife, (b) care for the aged, and (c) devotion to the interests of the church with which he was connected. These sentiments are fully indicated by several items of his will, in one of which he provided for the payment of a balance of a subscription to the Emory Methodist Episcopal Church, which amounted to $10,000, upon which he had paid $2,000. In a codicil to his will, however, he directed an increase of that contribution, which carried the aggregate to $17,059.34, less any sum which he may have paid in his lifetime. He also made provision for the payment of $1,000 to the Woman’s Home Missionary Society of the Pittsburg Conference of the Methodist Episcopal Church, for the purpose of enlarging or building an addition to the present Deaconess’ Home, 2000 Fifth avenue, Pittsburg.
In the fifth section of his will, embracing all of the worthy sentiments above enumerated which influenced him, he provided: “I will and direct that my executors shall set apart the sum of twenty-five thousand dollars ($25,000), to be used in the purchase and equipment of a
“The acceptance of this bequest by the donee herein named (The Centenary Fund Society) and the naming of the home ‘Frances Campbell Hamilton Memorial' Methodist Episcopal Church Home for the Aged’ I make con
Whilst the law is ready to lend its aid in carrying into effect such a worthy charitable object as is herein provided, it can do so only in accordance with the intention of the testator. This intention is to be governed by the terms of the will. That the subject was near the testator’s heart is shown very clearly by the testimony. He discussed it prior to his death and dwelt upon it in conversation with the members of his family, and indeed purchased a property which he thought might be available for the establishment of the home. That it should be established very soon after his death is evidenced by several of the terms of the will. His direction is that the sum of $25,000 shall be set apart by the executors for the purchase and equipment of a property to be known as the “Frances Campbell Hamilton Memorial Methodist Episcopal Church Home for the Aged.” He also provides that the executors shall consult certain persons named, one of them being “the Presiding Elder of the Pittsburg District of the Methodist Episcopal Church at the date of my decease,” thus clearly indicating that the consultation with the presiding elder should be held by them immediately after his decease. The directions to his executors to set apart the sum of $25,000 clearly indicated that this sum was to be separated from his estate and dealt with as a separate trust fund.
The question of carrying out the provisions of this bequest was discussed by the executors at their first meeting, and steps were immediately taken to carry it into practical effect. In doing this, the executors expended the full amount of $25,000 and also the interest upon the fund which had been accumulated after the death of the testator up to the time of the filing of their
The exceptions to the executors’ account deal with two items, first, the interest on the fund set apart, which the exceptant claims should go into the residuary estate, and second, the charging of a collateral inheritance tax upon the bequest to the general estate. The question was raised in the court below upon exceptions to the finding of the auditing judge, and upon final adjudication by the court in banc, the interest upon the fund, as applied in the executors’ account, was approved, and the charge of the collateral inheritance tax was changed and charged by the court from the estate of the testator to the bequest itself.
We do. not understand that the question of the payment of the collateral inheritance tax is raised by the appellant, so far as this legacy is concerned, but the question is at least argued that, inasmuch as the appellee, the Safe Deposit & Trust Company, the principal acting executor of the estate, and the custodian of its funds and the keeper of the accounts, had telephoned to some one interested that the balance of the fund for distribution amounted to so much, not taking account of the collateral inheritance tax, that the said appellee should be charged with this tax, and that it should not be included as a credit so as to diminish the principal of the
The remaining question is as to the interest upon the legacy which the court awarded to the fund and not to the balance of the estate, and in this we think there was no error. The testator directed this fund to be set apart, that is, to be separated from his estate. Why?. Surely there was some object in setting it apart. It was for a specific purpose. It was managed, when set apart, even if not separated physically, as the balance of the estate was managed, and as any active, reliable trustee would manage an estate, for its best interest. The accumulations, therefore, belonged, as we take it, to the fund. Under the evident desire of the testator that fund was to be invested as early as possible in a property for the establishment of the home. Steps were practically immediately taken to that end. A corporation was organized, a
It is quite apparent, therefore, that there was no postponement of the founding, or location, or building or equipment of the home until after the five years had elapsed. The intention of the testator was to have, as already appears, the home located and built and equipped as soon as possible. This was done. A corporation was formed prac
In Bitzer’s Executor v. Hahn et ux., 14 S. & R. 232, under the following bequest by a testator: “Item. I give and bequeath unto each of the children of my daughter B. two hundred and fifty pounds, to be paid to them out of the money which may come into the hands of my executor, after the legacies are paid to my said two youngest sons; but it is my will, and I order, that if any of my sons or grandchildren, to whom I have given the said legacies, should die in their minority, and without issue, then such legacy shall be divided to and amongst my six children, to whom I have given the residue and remainder of my estate,” it was “Held, that by comparison with other parts of the will and under the circumstances of the case, the executor was liable for interest upon the legacies to the testator’s grandchildren, from the time he had sufficient funds in his hands to pay them, after pay
In the case we are considering there was nothing to take precedence of the bequest for the home, and, so far as the will itself intimates, nothing which more strongly appealed to the testator himself.
So in Manderson v. Lukens, 23 Pa. 31, it was held: “The vested or contingent character of an estate is not to be tested by the certainty or uncertainty of obtaining the possession, for that would make its character depend, not upon the terms of its creation, but on the form of the result; nor by the defeasibility or indefeasibility of the right of possession, for many estates are vested without possession as well as with it, and are yet defeasible.
“If there be a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested if it is certain to take effect in possession by enduring longer than the precedent estate.”
See also Carstensen’s Estate, 196 Pa. 325, and Safe Deposit & Trust Co. v. Wood, 201 Pa. 420.
We conclude, therefore, that this bequest was a vested estate, to be divested in the future based only upon the refusal by the beneficiary to accept or to call the home by the name fixed by the testator. The property being set apart and the estate vested, it seems to us that the income or increase of the estate so set apart belonged to it and not to the general trust estate of the testator. We think, therefore, the court was correct in awarding the interest upon the fund, less the collateral inheritance tax, to this fund and that the distribution, as made by Judge Miller in the decree, to which the appellant excepts, should be affirmed.
It is, therefore, ordered that the decree of the orphans’ court be afiirmed and the appeal dismissed, at the costs of the appellant.