Cerny v. First National Bank

479 P.2d 697, 106 Ariz. 554, 1971 Ariz. LEXIS 207

• Court: Arizona Supreme Court
• Decided: January 19, 1971
• Docket: No. 10072-PR
• Status: Published

Opinions

STRUCKMEYER, Chief Justice.

This appeal is from a determination of heirship in which the rights of 103 claimants under the will of James Kidd were adjudicated.

James Kidd was a bachelor of frugal nature who came to Arizona about 1920. On January 2, 1946, he wrote a holographic will which was sealed in an envelope and placed in a safety deposit box. A few years later, Kidd disappeared without a trace. But it was not until shortly before March 6, 1964 that his will was discovered and on that date offered for probate. On proof that Kidd had absented himself from Maricopa County, Arizona for such a period as to be presumed dead, see A.R.S. § 12-509, his will was admitted to probate and the First National Bank of Arizona was appointed as Administrator With Will Annexed.

Pursuant to A.R.S. § 14-641, the First National Bank filed a petition to determine heirship and subsequently moved for summary judgment, asking the court to declare that Kidd’s will created a valid charitable trust. The trial court granted the motion of the bank, declaring that Kidd’s will created a valid charitable trust, and set for hearing the petitions, statements of interest, and claims of those individuals and organizations who sought distribution of the estate under the terms of the will. Hearings were held which continued for a period of almost three months — the trial court taking testimony and receiving exhibits from more than sixty claimants in addition to the more than forty claims submitted without oral testimony.

After extended consideration, the court decreed that the claim of the Neurological Sciences Foundation be granted, and that the residue of James Kidd’s estate, amounting to about $175,000.00, be distributed in trust to be used for the purpose of research to be performed and carried on by the Barrow Neurological Institute of Phoenix, Arizona. It rejected the petitions and statements of interest of the other 102 claimants.

Kidd’s holographic will provided:

“This is my first and only will and is dated the second day in January 1946. I have no heirs have not been married in my life, after all my funeral expenses have been paid and #100. one hundred ■ dollars to some preacher of the gospital to say fare well at my grave sell all my property which is all in cash and stocks with E. F. Hutton Co Phoenix some in •safety box, and have this balance money •to go in a reserach or some scientific ■•proof of a soul of the human body which ■leaves at death I think in time their can be a Photograph of soul leaving the human at death,

James Kidd

(dated 2nd January 1946)

some cash in Valley bank some in Bank America LA Cal"

While the proceedings in the court below were extensive, the questions raised on this appeal by the admission to probate of this extraordinary document can in the main be determined perfunctorily.

We note first, as did the court in Opinion of the Justices, 109 N.H. 335, 251 A.2d 330, at 330:

“In this state the right of an individual to dispose of his property by will to individuals, public and private corporations, charities and public entities, * * *, is singularly free from restrictions or limitations, constitutional, statutory or judicial.”

The power to make a will is a power that belongs to the testator and is not subject to a veto power of the courts. So, unless limited 'by statute, a testator may dispose of his property by will as he pleases. In In re Greene’s Estate, 40 Ariz. 274, 11 P.2d 947, 949, this Court said:

“Nor is a court concerned with the abstract justice or injustice of the will. [Citation] Unless it clearly appears the testator did not fully realize what he was doing with his property, it was his to dispose of as he pleases.”

And in In re Nolan’s Estate, 56 Ariz. 353, 108 P.2d 385, 387, we said :

“The general rule is that in the absence of statutory provision limiting it, a man may dispose of his property as he sees fit, regardless of the fact that the prevailing code or morals may consider such disposition as unwarranted from any standpoint.”

Other courts have said:

“The value of property consists largely in the right to dispose of it as the owner desires, and this power of disposal, either by deed or by will, is not to be interfered with so long as the requisite mental capacity exists. Cole v. Drum, 109 Kan. 148, 197 P. 1105, and cases cited therein. The right to make a will includes the right to make it according to the testatrix’ own desires, subject only to the statutory restrictions. It is no condition of this right that the will shall please a jury, or a court, or the testatrix’ relatives, or anyone else. If the will was properly executed, and the testatrix was of competent sanity, and no undue influence has been established, it is the testatrix’ will, and no tribunal is appointed on earth to inquire whether it ought to have been her will.” In Re Millar’s Estate, 185 Kan. 510, 345 P.2d 1033, 1041.

“Though a testator may be aged, infirm, and sick he has the right to dispose of his property in any manner that he may desire if his mental ability meets the law’s tests. It is not for the courts, juries, relatives, or friends to say how property should be passed by will, or to rewrite a will for a testator because they do not believe he made a wise or fair distribution of his property.” Farmer v. Dodson, 326 S.W.2d 57, 61 (Tex. Civ.App.).

“ ‘No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the good. A testator is permitted to be capricious and improvident, and is, moreover, at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions. Many a testamentary disposition may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.’ ” In Re Wayne’s Estate, 134 Or. 464, 291 P. 356, 362.

And see also, In re Woehr’s Estate, 166 Cal.App.2d 4, 332 P.2d 818, 826; In re Heaton’s Estate, 404 Pa. 360, 172 A.2d 293, 296-297; Feiler v. Feiler, 149 Ohio 17, 77 N.E.2d 237, 240.

Appellants are six of the 102 claimants whose statements of interest and claims were disapproved by decree of the court below. Four of the appellants, Emma G. Clausser, Joe H. Cerny, Joseph W. Still, M.D., and Russell Dilts, urge that the trial court erroneously ruled that a valid charitable trust was created by the words used in Kidd’s will. They argue that the words in the residual clause, “ * * * have this balance money to go in a reserach or some scientific proof of a soul * * .* ”, are in the disjunctive, and that Kidd’s, intent was first, not to create a trust but to give an outright bequest to any person who had “scientific proof” of a soul which leaves the human body at death, and second, that a trust be established only if such “scientific proof” was not available.

Appellant Clausser believes she has such proof. She claims she saw her soul leave her body during a volunteer experiment in Stuttgart, Germany in 1937. Appellant Cerny’s proof is in the nature of an inductive argument stemming from biblical writings. Appellant Still argues that he has “some scientific proof” (without stating it) at the present time, but he wishes to do further research based upon a thesis developed from his work in the fields of biochemistry, physiology, psychology, and sociology. Russell Dilts’ unverified ' petition and statement of interest asserted that since 1948 he has engaged in ..the pursuit of scientific knowledge of psychical and spiritual phenomena including manifestations of the human soul. In this court he incorporates in his argument the arguments contained in all the briefs filed by the other appellants. A further reference to the Still and Dilts claims will be made later.

We think that the intent to make a testamentary trust rather than testamentary bequest is clear. The single most important element in the creation of a testamentary charitable trust is the manifestation by the testator of a charitable purpose. Kidd expressed the wish that research be conducted in a specific area— the existence of a soul of the human body which leaves at death. Such a purpose could have been considered by the trial co.urt as advancing education or religion. Both educational and religious purposes have been recognized as charitable in nature, Restatement (Second), Trusts § 368, §§ 370-371 (1957).

Although Kidd did not use language indicating the establishment of a trust, the ab- - sence of words of “trust” or “trustee” is not fatal.

“e. Direct gift to charity. If the owner of property devises or bequeaths it for charitable purposes, and not only does not name a trustee but also does not use language indicating that the property is to be held upon trust, nevertheless the disposition is valid. Thus, if a testator bequeaths a certain sum fto charity,’ a charitable trust is created. So also, a charitable trust is created where the testator directs that a certain sum should be used to aid needy students, or to assist the poor.

In such cases the court will either appoint a trustee to carry out the purpose or will approve a scheme to carry it out. * * *” Restatement (Second), Trusts § 397, comment e (1957).

And see, In re Quinn’s Estate, 156 Cal.App.2d 684, 320 P.2d 219, and Wilson v. Franz, 359 S.W.2d 630 (Tex.Civ.App.).

A literal reading of the clause “ * * * have this money to go in * * * some scientific proof” is more indicative of the intention to create a trust than an absolute bequest. We gather from the record in the court below that as of the date of the execution of Kidd’s will there was no accepted scientific proof of a soul of the human body. Accordingly, Kidd must have addressed this clause to the future, contemplating scientific research leading to proof of a soul which leaves the body at death.

Kidd’s will clearly evidences his belief in the basic elements of historic Christianity — a belief in human responsibility, in a transcendent God, and in human survival of bodily death. Kidd was not deluded by modern secularism into assuming that the Christian view of the world is so dull and pointless that it is not worth investigating. The affirmation of God as taught by the Christian Creed — the Communion of Saints, the Resurrection of the Body, and the Life Everlasting' — is more satisfying to the intellect and more enriching to the human personality than its etiolated substitute, scientific humanism, the pursuit of which has led to materialism and the lack of moral responsibility.

The thrust of the attack made by the two remaining appellants is directed against that part of the judgment of the court below finding that the Barrow Neurological Institute is qualified to execute the trust. The record in this respect may be summarized as follows: The Barrow Neurological Institute was founded in 1962 as part of the St. Joseph’s Hospital of Phoenix, Arizona. The general area of research carried on by Barrow is into the normal and abnormal functioning of the nervous system, which includes the brain, the spinal cord, sense organs, peripheral nerves and central control of muscular activity. Barrow carries on specific research studies into various aspects of the human nervous system to the end of increasing man’s knowledge of its complex functions.

Dr. Editardo Eidelberg, Chief of the Laboratory of Neurophysiology, Chairman of the Department of Neurobiology, and Director of Research for the hospital, testified that Barrow has never and does not intend, at least in the foreseeable future, to do research in whether there exists a soul to the human body. He testified:

“Q In other words, if I understand you correctly then, there would be no specific attempt to use those funds for scientific research to determine whether there was a soul separate and apart from the central nervous system as such?

A Do you mean by that to directly test that question experimentally?

Q Yes.

A The answer is no, sir, because at the moment with methodology presently available, we don’t think it is a testable question. It may be a good question, but it is not a testable one.”

The impact of the totality of the testimony of the witnesses for Barrow Neurological Institute is that the phenomena laymen ordinarily ascribe to the soul can be explained as part of the functioning of the central nervous system and that Barrow would not attempt to isolate the soul from the central nervous system as a separate and distinct entity. Since Kidd left his estate for research or scientific proof of a soul “which leaves at death”, he obviously contemplated that the soul was a separate entity, distinct from the body or its central nervous system and surviving the body’s physical dissolution. Manifestly, the Barrow Neurological Institute does not qualify under the plain intent of Kidd’s will.

At least two of the appellants, the American Society for Psychical Research, Inc. and the Psychical Research Foundation, Inc., are qualified to carry out the specific purpose expressed in the will of James Kidd.

The American Society for Psychical Research was formally organized in 1906, principally through the efforts of William James, thought generally to be the most eminent of American psychologists. This society has a working capital of approximately $700,000.00, it publishes a quarterly journal, and its membership has included such well known figures as Sigmund Freud, Arthur J. Balfour, Margaret Mead, and J. B. Rhine. The American Society for Psychical Research is now headed by Dr. Gardner Murphy, who is also presently the Director of Research of the Menninger Foundation.

One of the stated purposes of the Society is psychical research in all of its aspects, of which “survival research” is one of its recognized subdivisions. As Dr. Murphy explained, “Psychical research is the study of psychological processes for which we have no physical explanation as physics now exist.” Dr. Murphy further explained that most of the phenomena associated with the field of psychical research are some type of telepathy or clairvoyance or related processes.

As to “survival research” itself, the American Society for Psychical Research studies and disseminates information as to “crisis apparitions” (whereby a person receives a “vision” of another person undergoing a crisis experience, often death, at another place), “deathbed visions” (whereby a dying person appears to undergo a transformation allowing him to see into another world), “physical changes in the surroundings” (whereby the death of a person is signaled by the disturbance of a physical object some distance away), and “out-of-the-body experiences” (whereby a person in a sleeping or comatose state appears to himself to wander forth from his body and take up a station some distance away, purportedly sometimes to be seen there by others). Dr. Murphy testified that the American Society for Psychical Research would use the Kidd funds to make further studies and experimentation to determine whether a measurable physical event occurs at the moment of death. Dr. Murphy testified that the American Society for Psychical Research would attempt to measure whether there are “material aspects in human psychic existence” by the use of such equipment as photography, especially infra-red photography, weight and pressure and temperature measures, photoelectric beams, and sound instruments.

Dr. Murphy summarized the view of the American Society for Psychical Research as to how such experimentation would tend to prove there is a “soul” which survives at the time of death :

“Q How would this tend to prove there is a soul which survives at the time of death?

A The issue is, classically, whether the soul has a material aspect or is purely psychological without a material aspect.

All of the experiments I am trying to describe do involve a physical aspect. They do suggest whether or not at the moment of death the soul, the entity which gives life to the individual, simply departs as a psychological or spiritual entity, or whether it has material implication which might even be photographed.

I think this type of research would enrich our understanding of what the moment of death is. It may enlarge our comprehension as to what we mean by the word ‘soul’.”

The Psychical Research Foundation was founded in 1961 for the sole purpose of engaging in “scientific and educational activities proximately directed toward securing and disseminating reliable information . with respect to the survival upon termination of the living organism of the mental, spiritual, and personality character of man . or any parts or aspects of them.”

Joseph Gaither Pratt, president and member of its board of directors, is a member of the faculty of the Department of Psychiatry of the University of Virginia. His position is as a psychologist, in which position he does full-time research in the field of parapsychology. Pratt received an A.B. “degree from Duke University, a master’s dé'gree in psychology, and completed his ‘ thesis and all requirements for a Ph.D. in 1936. He served as research assistant to Dr. J. B. Rhine at Duke University and thereafter spent two years with Dr. Gardner Murphy at Columbia University in experimental work in extrasensory perception. He rejoined Dr. Rhine as a member of his research staff, doing full-time research in parapsychology. There he stayed, with the exception of four years during the second World War, until 1964 when he joined the staff of the University of Virginia.

Dr. Pratt testified that there are two principal areas in the field of psychology, the conventional, which is largely dedicated to attempting to understand behavior in human nature in terms of physical principles, and the parapsychological, which are those exceptional things which occur which come about by noting that there arc exceptions that do not fit into the ordinary conventional physical considerations. Dr. Pratt has been the author and co-author of books in the field of parapsychology and has published some eighty to ninety articles on the subject.

Dr. Pratt further testified that the Psychical Research Foundation was founded by Charles E. Ozanne who felt that there was a need for some organization that would more explicitly, more specifically concentrate on work in the area of survival interest through scientific investigation. He founded the Foundation in order that there be an organization that would be exclusively dedicated to that purpose. In addition to its board of directors, it has an advisory committee of such people as Professor Gardner Murphy, Professor C. D. Broad, who is described as a world famous philosopher at Cambridge University, author of several books concerned with the problem of the evidence bearing upon the survival question, and Professor H. H. Price of Oxford University, recently retired. Dr. Pratt stated that the net worth of the Psychical Research Foundation was somewhere between $300,000.00 and $350,-000.00, in trust with the Wachobia Bank in Durham, North Carolina.

Dr. Pratt testified that the Foundation has been involved in direct experiments in the field of survival research and that research reports have been published in the literature of journals which are dedicated to the publication of religious and scientific work in this field. He testified that “soul” is a term that everyone in common language understands as applying to some aspect, a part of man’s nature, which we generally conceive would survive death. It was his opinion that Kidd was concerned with having research done on the question of whether some aspect of man’s nature survives and if it does, we can call this aspect “soul” or “spirit” or what you will. The Psychical Research Foundation has been from its inception engaged in such specific and restricted line of endeavor.

It is apparent from what has been summarized of the purposes and operations of the American Society for Psychical Research and the Psychical Research Foundation that at least two organizations exist which- the court below could have found were competent to carry out the testamentary trust established by Kidd’s will.

The appellees Neurological Sciences Foundation and Barrow Neurological Institute urge that this appeal cannot be decided unless a transcript of the evidence of all 103 claimants is furnished on appeal, instead of only those parties involved in the appeal. But we think otherwise. The basis of the claim by the Barrow Neurological Institute is clearly expressed in the transcript of the testimony of its officers. They do not consider it possible to discover proof of a soul which leaves at death and, consequently, do not propose to attempt scientific research to that end. No other testimony can possibly change these facts. Consequently, the court does not need the testimony of other claimants in order to determine the merits of the claim of Barrow.

The appellants Joseph W. Still and Russell Dilts assert that they wish to and are competent to seek scientific proof of a soul of the human body which leaves at death. Accordingly, this case is reversed with directions that the court below enter into a final determination as to which of the four appellants, Joseph W. Still, Russell Dilts, the American Society for Psychical Research or the Psychical Research Foundation, is most suitable to carry out the trust expressed in Kidd’s will.

Judgment reversed with directions.

HAYS, V. C. J., LOCKWOOD, J., and McFARLAND, J., Retired, concur.

Note: The Honorable JAMES DUKE CAMERON, Justice, having disqualified himself, the Honorable ERNEST W. McFARLAND, Justice, Retired, was called to sit in his stead.