Opinion by
Mr. Chief Justice Sterrett,
This contention arose in the distribution of $1,015.26, representing net residuary personal estate of Mrs. Ellen Hodnett who resided in Altoona and died there, testate, on July 8,1888. The eighth clause of her will as originally published is as follows : “ The rest, residue and remainder of my estate I give and bequeath to the Passionist Monastery at Pittsburgh, Pa.” Two days before her decease she executed the following codicil thereto: “Now, 6 July 1888, as a codicil to the foregoing-will, I direct the portion directing my executors to procure a chalice to be omitted from the said will, as I have already purchased one myself; and further I direct that the residue and remainder, if any, shall go to the Franciscan Brothers of Altoona, Pa., and to the pastor of the St. John’s R. C. Church of Altoona, Pa., in equal parts or shares instead of to the Passionist Monastery of Pittsburgh, Pa.”
It is conceded that this operated as a revocation of the residuary clause above quoted ; and, as to the moiety of the residuary estate thus given to the “ Franciscan Brothers of Altoona, Pa.,” it is also conceded that the codicil is void, under the provisions of the act of April 26, 1855. The only question is whether the other moiety, given to “the pastor of the St. John’s R. C. Church of Altoona, Pa.,” is a personal gift or bequest, in [488]*488his own right, to Rev. N. J. O’Reilly, the appellant, who, at date of the will, and also at the death of testatrix, was the pastor of said church, or whether it was given to him, not in his own right, but in trust for religious or charitable uses, and therefore void under the act of 1855. The learned auditor, holding that it was a personal gift to appellant, in his own right, awarded one half of the fund to him and the residue to the next of kin of the testatrix, according to the intestate law; but the oiphans’ court, sustaining exceptions to the auditor’s report, awarded the whole fund to said next of kin. In this it is alleged there was error, and that is the sole question presented for our consideration.
It is conceded that when the will became operative, by testatrix’s death, appellant was the pastor of the church specified in the codicil, and hence the fact that he is the "legatee described therein cannot be doubted.
There is nothing in the will to indicate that the bequest is, or was ever intended to be, in trust for any religious or charitable use; nor is there, dehors that instrument, a scintilla of evidence of any such trust. The auditor says, in substance, there is no evidence that appellant was present when the codicil was executed, or had been consulted, in relation thereto, by testatrix or anyone in her behalf, or that'he even knew he was to receive a legacy thereunder, nor was there any evidence of any communication whatever between him and testatrix, at any time prior to her decease, in relation to the bequest, or in regard to her wishes respecting the same; and, in summing up on this point, he finds : “ There is nothing in the case to indicate or show that the legacy in question was given in trust to ‘the pastor of the St. John’s R. C. Church,’ .... or that such pastor should devote this particular legacy to charitable or religious uses or purposes.”
It is suggested, however, that the existence of a trust for religious or charitable uses may be inferred from the official designation or description of the legatee, as “ the pastor of the St. John’s R. C. Church,” etc. — that it is a gift to the ecclesiastical officer, in charge of that particular church, and not to the person who happened to be the incumbent of the office when the will took effect, and therefore it must be regarded as a gift for the benefit of the church and in ease of the congregation worshiping therein, etc.
[489]*489There would be force in this position if the legatee were an artificial being, having but one character, and that charitable, but where, as in this ease, the donee is a natural person, having1 interests of his own, distinct from those which appertain to his ecclesiastical office as pastor of the church, it is quite different. As is said in 1 Jarman on Wills, 193, “ a gift will not be deemed charitable merely from the nature of the professional character of the devisee, or on account of the testator’s having accompanied the gift with an expression of his expectation that the devisee would discharge the duties incidental to such a character, however intimately those duties may concern the welfare of others, as this merely denotes the motive of the gift, and not that the devisee is to take otherwise than beneficially.”
In Schultz’s Appeal, 80 Pa. 396, the testator, wishing to bequeath his estate to charitable uses, was told it would be invalid if he should die within a month, but that he might give it unconditionally to some person whom he could trust to carry out his wishes. Reuben Yeakle, bishop of the religious denomination to which the testator belonged, was selected, and an absolute bequest was made to him. Within a month thereafter the testator died and Bishop Yeakle, being informed of his death, and of his wishes respecting the property thus bequeathed, said he would carry them out. It was held by this court that, in the circumstances, the 'bequest was not within the act of 1855, and consequently there was nothing to fasten a trust upon the devisees. After referring to the facts and reciting the 11th section of the act, Mr. Justice Shakswood said : “ It seems very clear that the bequest .... to Reuben Yeakle is not within the words of the statute. There is nothing in the circumstances to fasten a trust upon him. The statute out of the way, the charities intended to be benefited would have no claim, legal or equitable, to enforce payment by him to them. He would, in the eye of the law, be guilty of no fraud, legal or equitable, either against them or the testator, if he should, even at this day, change his intentions and apply the money to some other use. Being the absolute owner, under the will, the declaration of his intention would not be binding upon him. It is not, therefore, in the words of the statute, a bequest ‘to a body politic or to any person in trust for religious or charitable uses.’ Had Reuben Yeakle been present when the will was executed, [490]*490or the objects of the bequest been communicated to him before the testator’s death, and had he held his peace, there would have been some ground for fastening a trust upon him ex maleficio, as in Hoge v'. Hoge, 1 Watts, 163. But nothing of that kind can be pretended here.” In reply to the position that the whole plan was “ nothing but a contrivance to evade the statute,” he further said: “ No doubt such was the intention of the testator. It is said that is a fraud upon the law, and the bequest ought therefore to be declared void. But that overlooks the fact that the absolute property in the subject of this bequest was vested in the legatee, and that he is entirely innocent of any complicity in the fraud of the testator. If the statute is practically repealed by this construction it is evident that it must be for the legislature to devise and apply a remedy, not the judiciary, whose province is not jus dare but jus dicere.”
It is scarcely necessary to say that the statute cannot be evaded by any secret trust for charitable or religious uses. Anyone interested may compel the legatee or devisee to disclose any promise made by him, or facts within his knowledge, tending to prove the existence of such secret trust; and if he denies such promise, etc., proof thereof may be made aliunde.
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Opinion by
Mr. Chief Justice Sterrett,
This contention arose in the distribution of $1,015.26, representing net residuary personal estate of Mrs. Ellen Hodnett who resided in Altoona and died there, testate, on July 8,1888. The eighth clause of her will as originally published is as follows : “ The rest, residue and remainder of my estate I give and bequeath to the Passionist Monastery at Pittsburgh, Pa.” Two days before her decease she executed the following codicil thereto: “Now, 6 July 1888, as a codicil to the foregoing-will, I direct the portion directing my executors to procure a chalice to be omitted from the said will, as I have already purchased one myself; and further I direct that the residue and remainder, if any, shall go to the Franciscan Brothers of Altoona, Pa., and to the pastor of the St. John’s R. C. Church of Altoona, Pa., in equal parts or shares instead of to the Passionist Monastery of Pittsburgh, Pa.”
It is conceded that this operated as a revocation of the residuary clause above quoted ; and, as to the moiety of the residuary estate thus given to the “ Franciscan Brothers of Altoona, Pa.,” it is also conceded that the codicil is void, under the provisions of the act of April 26, 1855. The only question is whether the other moiety, given to “the pastor of the St. John’s R. C. Church of Altoona, Pa.,” is a personal gift or bequest, in [488]*488his own right, to Rev. N. J. O’Reilly, the appellant, who, at date of the will, and also at the death of testatrix, was the pastor of said church, or whether it was given to him, not in his own right, but in trust for religious or charitable uses, and therefore void under the act of 1855. The learned auditor, holding that it was a personal gift to appellant, in his own right, awarded one half of the fund to him and the residue to the next of kin of the testatrix, according to the intestate law; but the oiphans’ court, sustaining exceptions to the auditor’s report, awarded the whole fund to said next of kin. In this it is alleged there was error, and that is the sole question presented for our consideration.
It is conceded that when the will became operative, by testatrix’s death, appellant was the pastor of the church specified in the codicil, and hence the fact that he is the "legatee described therein cannot be doubted.
There is nothing in the will to indicate that the bequest is, or was ever intended to be, in trust for any religious or charitable use; nor is there, dehors that instrument, a scintilla of evidence of any such trust. The auditor says, in substance, there is no evidence that appellant was present when the codicil was executed, or had been consulted, in relation thereto, by testatrix or anyone in her behalf, or that'he even knew he was to receive a legacy thereunder, nor was there any evidence of any communication whatever between him and testatrix, at any time prior to her decease, in relation to the bequest, or in regard to her wishes respecting the same; and, in summing up on this point, he finds : “ There is nothing in the case to indicate or show that the legacy in question was given in trust to ‘the pastor of the St. John’s R. C. Church,’ .... or that such pastor should devote this particular legacy to charitable or religious uses or purposes.”
It is suggested, however, that the existence of a trust for religious or charitable uses may be inferred from the official designation or description of the legatee, as “ the pastor of the St. John’s R. C. Church,” etc. — that it is a gift to the ecclesiastical officer, in charge of that particular church, and not to the person who happened to be the incumbent of the office when the will took effect, and therefore it must be regarded as a gift for the benefit of the church and in ease of the congregation worshiping therein, etc.
[489]*489There would be force in this position if the legatee were an artificial being, having but one character, and that charitable, but where, as in this ease, the donee is a natural person, having1 interests of his own, distinct from those which appertain to his ecclesiastical office as pastor of the church, it is quite different. As is said in 1 Jarman on Wills, 193, “ a gift will not be deemed charitable merely from the nature of the professional character of the devisee, or on account of the testator’s having accompanied the gift with an expression of his expectation that the devisee would discharge the duties incidental to such a character, however intimately those duties may concern the welfare of others, as this merely denotes the motive of the gift, and not that the devisee is to take otherwise than beneficially.”
In Schultz’s Appeal, 80 Pa. 396, the testator, wishing to bequeath his estate to charitable uses, was told it would be invalid if he should die within a month, but that he might give it unconditionally to some person whom he could trust to carry out his wishes. Reuben Yeakle, bishop of the religious denomination to which the testator belonged, was selected, and an absolute bequest was made to him. Within a month thereafter the testator died and Bishop Yeakle, being informed of his death, and of his wishes respecting the property thus bequeathed, said he would carry them out. It was held by this court that, in the circumstances, the 'bequest was not within the act of 1855, and consequently there was nothing to fasten a trust upon the devisees. After referring to the facts and reciting the 11th section of the act, Mr. Justice Shakswood said : “ It seems very clear that the bequest .... to Reuben Yeakle is not within the words of the statute. There is nothing in the circumstances to fasten a trust upon him. The statute out of the way, the charities intended to be benefited would have no claim, legal or equitable, to enforce payment by him to them. He would, in the eye of the law, be guilty of no fraud, legal or equitable, either against them or the testator, if he should, even at this day, change his intentions and apply the money to some other use. Being the absolute owner, under the will, the declaration of his intention would not be binding upon him. It is not, therefore, in the words of the statute, a bequest ‘to a body politic or to any person in trust for religious or charitable uses.’ Had Reuben Yeakle been present when the will was executed, [490]*490or the objects of the bequest been communicated to him before the testator’s death, and had he held his peace, there would have been some ground for fastening a trust upon him ex maleficio, as in Hoge v'. Hoge, 1 Watts, 163. But nothing of that kind can be pretended here.” In reply to the position that the whole plan was “ nothing but a contrivance to evade the statute,” he further said: “ No doubt such was the intention of the testator. It is said that is a fraud upon the law, and the bequest ought therefore to be declared void. But that overlooks the fact that the absolute property in the subject of this bequest was vested in the legatee, and that he is entirely innocent of any complicity in the fraud of the testator. If the statute is practically repealed by this construction it is evident that it must be for the legislature to devise and apply a remedy, not the judiciary, whose province is not jus dare but jus dicere.”
It is scarcely necessary to say that the statute cannot be evaded by any secret trust for charitable or religious uses. Anyone interested may compel the legatee or devisee to disclose any promise made by him, or facts within his knowledge, tending to prove the existence of such secret trust; and if he denies such promise, etc., proof thereof may be made aliunde. As is said in 1 Jarman on Wills, *233, this doctrine evidently assumes that the trust, if legal, would have been binding on the conscience of and might have been enforced against the legatee or devisee; and this ground failing the rule does not apply. “ As where a testator after devising lands by a will duly attested, declares a trust in favor of charity by an unattested paper or by parol, the statute law, which affords to the donee a valid defence against any claim on the part of the charity, of course defends him against the claim of the heir, founded on the charitable trust. The case would be different, however, if the devisee had induced the testator to give him the estate absolutely under an assurance that the unattested paper was a sufficient declaration of the trust for a charity, or under a promise, either express or by silence implied, that if the estate were devised to him he would perform the trust; and, generally, it is immaterial whether the promise be made before or after the execution .of the will.”
Other authorities to the same effect might be cited, but those above referred to are sufficient. It follows from what has been [491]*491said, that, in the absence of any evidence, facts or circumstances, tending to fasten upon appellant a trust for either religious or charitable uses, he is entitled as legatee, in his own right, to one half of the fund. If the testatrix had died more than one month after making the codicil, and the legacy had been paid over to him, without objection, there is nothing in the will itself nor in anything that has been shown aliunde that would afford the slightest ground on which the congregation, of which he is pastor, or any religious or charitable organization or association in any way connected therewith, could even hope to succeed in holding him as a trustee of the fund so received. The bequest to him was therefore not void under the provisions of the statute.
As to one half of the net fund for distribution, the decree of the orphans’ courtis reversed; and it is now adjudged and decreed that the sum of five hundred and seven T5^ dollars, awarded to the heirs of testatrix, be paid to N. J. O’Reilly, the appellant, and that the costs of this appeal be paid by the said heirs, the appellees.