In re Thompson's Estate

• Citation: 416 Pa. 249,206 A.2d 21
• Parties: In re ESTATE of Robert M. THOMPSON, Deceased. Appeal of Lewis S. MOSHER. [*]
• Decision Date: 05 January 1965
• Court: United States State Supreme Court of Pennsylvania

206 A.2d 21

416 Pa. 249

In re ESTATE of Robert M. THOMPSON, Deceased. Appeal of Lewis S. MOSHER. ^[*]

Supreme Court of Pennsylvania.

January 5, 1965.

[Copyrighted Material Omitted]

T. P. Dunn, John M. Wolford, Dunn & Wolford, and Eugene J. Brew, Jr., Erie, for appellant.

Barney Bernard, Evans, Johnson, Scarpitti & Bernard, Erie, for Estate of Robt. M. Thompson.

John A. Blackmore, Blackmore & Grieshober, Erie, for Myra Parkhurst Betts.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

JONES Justice.

Where a testator in a concededly valid will gives to a named executor his residuary estate for 'distribution to and amongst such local charities as he [the executor] shall determine in his sole discretion', does the executor in his representative capacity, under the Register of Wills Act of 1951, ^[1] have the right to appeal from the probate of a codicil to such will which codicil completely cancels the gift of the residuary estate made in the will? Such constitutes the primary issue on this appeal.

On September 19, 1959, Robert M. Thompson [testator] made a will wherein he appointed L. S. Mosher as sole executor. In the 19th paragraph of that will, testator gave the 'executor' certain personal effects, 'in trust nevertheless, to distribute the same among such persons and in the manner as indicated by a memorandum to be enclosed in the envelope with this will but not to be recorded as a part of it'. Under the 20th paragraph, testator gave the 'executor' all the residuary estate ^[2] 'for the purpose and administration and distribution to and amongst such local charities as he shall determine in his sole discretion in such amounts and such proportions as he shall choose, and I specifically provide that his conduct in such division of my residuary estate shall not be questioned.'

Subsequent to testator's death on March 21, 1963, Bronte Greenwood, a member of the Philadelphia bar, ^[3] petitioned the Register of Wills of Erie County to probate the 1959 will and a codicil thereto, both instruments were probated and letters testamentary were issued to Greenwood, the codicilnamed executor.

The codicil--the validity of which is attacked--purports to have been executed on April 26, 1962. Insofar as presently pertinent, ^[4] this codicil cancels the 19th and 20th paragraphs of the 1959 will and, in substitution thereof, testator in the codicil purports to give the residue of his estate 'unto [his] loyal and faithful friend, Myra Parkhurst, to be owned outright and in fee by her,' and he also gave her 'the power to designate distribution therefrom to and amongst any charitable organizations she may desire and in any amounts she may desire' and he specifically provided 'that her conduct in such designation shall not be questioned, nor shall she be required to make any such designation'. ^[5]

On July 23, 1963, Mosher, 'not as executor but as beneficiary under the nineteenth paragraph and as the party having the duty and authority to distribute the bulk of [testator's] estate among Erie charities under the twentieth paragraph of the will', ^[6] appealed from the probate of the codicil to the Orphans' Court of Erie County. The basis of his appeal was two-fold: (a) that testator,--86 years old at the time--, was not of sound mind when the codicil was executed and (b) that the codicil was procured by undue influence exerted upon decedent by Myra Parkhurst and 'perhaps by others named in the codicil'. ^[7]

Preliminary objections filed by Myra Parkhurst averred: (a) that Mosher lacked standing to appeal from the probate of the codicil and (b) that the appeal petition failed to set forth specifically the facts relied upon to sustain the several charges. Notice was given by Mosher to the Attorney General as parens patriae and St. Barnabas House and Erie City School District were permitted by the court to join as petitioner-appellants.

The court below sustained the preliminary objections ^[8] as to Mosher on both grounds and dismissed Mosher's appeal. From that decree Mosher has taken this appeal.

Under our case law and the Register of Wills Act, Act of June 28, 1951. P.L. 638, § 208, 20 P.S. § 1840.208, an executor, as such, lacks standing to prosecute an appeal from the decree of a Register of Wills. Faust's Estate, 364 Pa. 529, 531, 73 A.2d 369; Hand's Estate, 288 Pa. 569, 136 A. 864; Reese's Estate, 317 Pa. 473, 177 A. 792. As a prerequisite to such appeal, a fiduciary, be he executor or trustee, must fall within the class of an 'aggrieved' party in interest or one 'whose estate or trust is so aggrieved': Register of Wills Act, supra.

Initially, we must inquire into the nature of the gift provided in the 20th paragraph of the will to determine Mosher's status thereunder. This gift was of the entire residuary estate and the language employed unequivocally indicates that the gift was not to Mosher but to 'local charities' of Erie. Which of the class of 'local charities' was to receive and how much each of the 'local charities' selected was to receive were expressly left by testator to Mosher's determination, choice and discretion and his conduct in making such determination and choice and in the exercise of his discretion was not to be questioned. ^[9] Under such testamentary provision, there can be no doubt of the charitable nature of the gift, that the executor, although not so eo nomine, was in fact a trustee to carry out the purposes of the gift and that the charitable objects within the class of 'local charities' remains unascertained until selected by Mosher.

Almost a century ago, this Court speaking through Justice (later Chief Justice) Sharswood, in Helfenstein's Estate, 77 Pa. 328, 331, said: 'There is no prescribed form for the declaration of a trust.' Such is still the law. In Smith's Estate, 144 Pa. 428, 437, 22 A. 916, 917, this Court quoted with approved from Bispham's Equity (p. 65): 'Three things, it has been said, must concur to raise a trust;--sufficient words to create a definite subject, and a certain or ascertained object; and to these requisites may be added another, viz, that the terms of the trust should be sufficiently declared' and then the Court added 'any words which indicate with sufficient certainty a purpose to create a trust will be effective in so doing.' See also: Ranney v. Byers, 219 Pa. 332, 68 A. 971; Evans' Estate, 372 Pa. 284, 93 A.2d 683. Appellee contends that the omission in the 20th paragraph of the words 'in trust' or 'trustee'--especially in view of the presence of the words 'in trust' in the 19th paragraph--negatives the existence of a trust. Such contention lacks merit. While the presence or absence of the words 'in trust' or 'trustee' must be given consideration, the presence or the absence of such words is not controlling in determining the existence or non-existence of a trust. Tunnell's Estate, 325 Pa. 554, 190 A. 906; Sheets' Estate, 52 Pa. 257.

The provisions in the 20th paragraph are not novel. We have construed similar provisions as creating charitable trusts and considered the executors therein to be acting in the capacity of trustees: Kinike's Estate, 155 Pa. 101, 25 A. 1016 (testator directed the executors 'to distribute [the residuary estate] among such charitable institutions, and in such proportions as they in their discretion deem proper'); Murphy's Estate, 184 Pa. 310, 311, 39 A. 70 (testator directed the residuary estate 'be divided among such benevolent, charitable, and religious institutions and associations as shall be selected by my executors, or their successors'); Dulles' Estate, 218 Pa. 162, 164, 67 A. 49, 12 L.R.A.,N.S., 1177 (testatrix directed her executors 'to pay over, appropriate, dispose of and distribute [the residuary estate] * * * among such religious, charitable and benevolent purposes and objects or institutions' as testatrix would specify in writing, or, if she did not so specify, then in the executors' discretion). ^[10]

A study of the 20th paragraph of the will indicates that, while Mosher is nominally an executor, actually he is a trustee clothed with the duties of a trustee. ^[11] In such posture, , we determine his standing to appeal from the probate of this codicil.

If the codicil stands, the provisions of the 20th paragraph are cancelled and the charitable trust therein provided never comes into existence. To the extent that the codicil prevails, the testator's intentions expressed in the 20th paragraph of this concededly valid will are frustrated, the trust fails and the as-yet-unascertained 'local charities' are deprived of the residuary estate. Such 'local charities' are without standing to appeal (cf: Atlee's Estate, 406 Pa. 528, 178 A.2d 722), although the Attorney General as parens patriae may represent their interest. Under such circumstances, does Mosher, in his capacity of trustee, have standing to appeal from the probate of this codicil destructive of the trust, the testator's expressed intent and the 'local charities' interests?

Other jurisdictions have been presented with this problem. Ferrall's Estate, 33 Cal.App.2d 202, 200 P.2d 1, 3, 6 A.L.R.2d 142, held that one acting as trustee may appeal in his representative capacity if it is necessary to prevent the termination of a trust, the Court (speaking through Justice Traynor) stating that such appeal was the 'performance of a duty by the trustees to protect the trust against an attack that goes to the very existence of the trust itself.' In Toledo Trust Co. v. Farmer, 165 Ohio St. 378, 135 N.E.2d 356, 357, the Court held that where 'a judgment affects or threatens the existence, validity or continuance of a trust or prevents the trustee from discharging his duties thereunder, or where such judgment threatens to defeat the purposes of the...