Darr's Estate

• Citation: 39 Pa. D. & C. 210
• Decision Date: 05 April 1940
• Docket Number: 3805 of 1939
• Parties: Darr's Estate
• Court: Commonwealth Court of Pennsylvania

39 Pa. D. & C. 210

Darr's Estate

No. 3805 of 1939

Common Pleas Court of Allegheny County, Pennsylvania, Orphans Division

April 5, 1940

Exceptions to adjudication.

James M. Magee, for accountant.

E W. Arthur, for heirs of Eliza Sauers.

Emmett T. Graybill, for City of Massillon, Ohio.

Jason Richardson, for City of Massillon, Ohio, and Elyria Home for the Aged, Elyria, Ohio.

Henry W. Harter, for Aultman Home for Aged Women, Canton, Ohio.

Before Trimble, P. J., Mitchell, and Chalfant, JJ.

OPINION

PER CURIAM

Maria E. Warwick created a revocable trust for individuals, she being one, terminable upon their deaths, which have occurred, with a gift over to a charity, and named George W. Darr as trustee. She delivered to him the res. The trust has terminated and the fund is now ready for distribution. The remainder is distributable as follows:

" ... the whole of said bonds and property, both principal and interest, shall be applied by the trustee hereunder towards the endowment, or towards the support of a home for the aged ladies of Massillon, Ohio, in such manner and upon such terms as the trustee hereunder shall hereafter provide."

Darr executed the trust agreement in New York. To the left of his signature appears the following: " Witness Amos Jaffee" . On the next page there is a formal acknowledgment as follows:

" Personally appeared before me, a notary public in and for the State aforesaid, residing in the City of New York, George W. Darr, who acknowledged the foregoing indenture or deed of trust to be his act and deed to the end that the same might be recorded as such. Witness my hand and notarial seal this 23d day of March, A.D. 1903.

C. W. ROTCHILD

Notary Public. No. 42

King Co.

Certificate filed in

New York County."

The auditing judge held that the signatures of the attesting witness and the notary public were a compliance with the Act of April 26, 1855, P. L. 328, requiring the signature to a trust settlement to be " attested by two credible and at the time disinterested witnesses" . Cases supporting and denying the validity of like attestations were cited: In re McDonough's Estate, 201 A.D. 203, 193 N.Y.S. 734 (1922); Irvine's Estate, 206 Pa. 1; Kessler's Estate, 221 Pa. 314, 320; Spink v. Guarantee Bank & Trust Co., 181 Ala. 272, 61 So. 302 (1913); Nashville C. & St. L. Ry. Co. et al. v. Hammond et al. (Miss. 1894),15 So. 935; Adams v. Norris, 23 How. 64 U.S. 353 (1859); Murray v. Murphy et al., 39 Miss. 214 (1860); Tilton, Exec., v. Daniels, 79 N.H. 368 (1920); Keely v. Moore, supra; Hull v. Hull et al., 117 Iowa 738 (1902); Carson's Estate, 241 Pa. 117; Hickman's Estate, 308 Pa. 230.

Our attitude is to sustain all charitable trusts when possible. In this case there is a clear unequivocal expression of a desire to aid the charity designated. That much may be said of Paxson's Estate, 221 Pa. 98, where the will contained the usual attestation clause but the intended witnesses were wanting. We have considered the facts fully and after a review of the cases we believe that the act has not been strictly complied with in the creation of the instant trust.

The signature of the notary was for the single purpose of recording, not attesting. Darr acknowledged the foregoing " Indenture or deed of trust to be his act and deed to the end that the same might be recorded as such." When the trust is read in its entirety, we have no difficulty in coming to the conclusion that there was in the contemplation of Mrs. Warwick, the creator of the trust, the possibility of a conversion of the property transferred by her and reinvestments of the proceeds in real estate because in the agreement the property is vested in the trustee in trust " to pay the income, interest, rents, issues and profits derived from said bonds and property."

In Keely v. Moore, 196 U.S. 38, the certificate of acknowledgment written in the margin of the second and last page of the will was as follows:

" 'I hereby certify that William Thomson, consul at Southampton for the United States of America, attended before me this 25th day of February, 1886, and acknowledged the foregoing paper-writing contained in two sheets of paper as his last will and testament and that the signature " Wm. Thomson" at the foot thereof is in the proper handwriting of the said William Thomson.

" JOHN H. COOKSEY,

" Vice Consul United States of America.'"

[Seal U.S. Consul]

The Supreme Court, in commenting upon this, said (p. 42):

" The certificate was probably prepared under the belief that wills, like deeds, made in a foreign country must be executed and acknowledged before some foreign official, or 'before any (some) secretary of legation or consular officer of the United States,' (Rev. Stat. section 1750; Compiled Statutes D. C. chapter 58, section 6); but as such certificate was unofficial and contributes nothing as such to the validity of the will, it can only be looked upon as the affirmation of an ordinary witness to the facts therein stated. No particular form of attestation was necessary, as appears to be the case in England and in several States of the United States, and if the certificate of Cooksey had been written at the foot of the will and signed by...