Kay Estate

317 A.2d 193, 456 Pa. 43, 67 A.L.R. 3d 427, 1974 Pa. LEXIS 500

• Court: Supreme Court of Pennsylvania
• Decided: March 25, 1974
• Docket: Appeal, No. 72
• Status: Published

Opinions

Opinion by

Mb. Justice Eagen,

Ethel Kay, age 75 years, and a resident of Pittsburgh, Pennsylvania, died testate on April 24, 1971. Pier will dated March 19, 1965,¹ after making specific bequests, leaves the remainder of her estate to the Pittsburgh National Bank to be held by it as trustee of a charitable trust to be known as “The Ethel Kay and Ida Wasser Memorial Trust.” Paragraph four of the will directs the trust shall continue for twenty years from the date of its inception and that the net income shall be distributed in varying degrees to fourteen charitable organizations, all in the Pittsburgh area. At the end of the twenty years, the trust is to be terminated and the principal, together with any accumulated income, is to be distributed to the designated charities in their specified portions.

The will described one of the designated charitable beneficiaries in this manner: “Pennsylvania Home for the Blind, Pittsburgh, Pennsylvania.”

After investigation, the executor determined the foregoing description did not exactly identify any charitable organization for the blind located in the Pittsburgh area. Accordingly, the executor notified each of the following organizations of the time and place of the audit of the estate: Western Pennsylvania School for Blind Children, Bayard Street at Bellefield, Pittsburgh, Pennsylvania; Pittsburgh Branch, Pennsylvania Association for the Blind, Incorporated, 308 Craig Street, Pittsburgh, Pennsylvania; and, The Greater Pittsburgh Guild for the Blind, 311 Station Street, Bridgeville, Pennsylvania.

These three organizations were represented at the audit in the Court of Common Pleas of Allegheny County, Orphans’ Court Division, and each claimed to be the intended beneficiary. The court conducted a hearing giving witnesses for each claimant the opportunity to be heard. Each organization convincingly demonstrated its charitable and excellent service on behalf of the blind. Subsequently, the auditing judge entered a decree awarding the bequest to the Pittsburgh Branch, Pennsylvania Association for the Blind, Incorporated (hereinafter referred to as the Pennsylvania Association). One of the losing claimants, the Western Pennsylvania School for Blind Children (hereinafter referred to as the School) filed exceptions to this decree, which were later overruled by a court en banc. The School then filed this appeal.²

Initially, we note the court below correctly permitted extrinsic evidence in an effort to determine the identity of the intended beneficiary of the decedent’s largess. Generally, the intended beneficiary of a will should, if possible, be determined from the language of the instrument alone. Berks Bounty Tuberculosis Society Appeal, 418 Pa. 112, 208 A. 2d 857 (1965). However, where an ambiguity exists in the will itself as to the identity of an intended beneficiary, extrinsic evidence may properly be received to aid the court in establishing the beneficiary’s correct identity: Black Estate, 398 Pa. 390, 158 A. 2d 133 (1960). This is just such a case.

Certainly, neither of the claimants involved in this appeal are described “with sufficient exactitude to clearly indicate a person or organization legally qualified to take.” See Berks Bounty Tuberculosis Society Appeal, supra, at 115, 208 A. 2d at 858. The lower court incorrectly held that the testatrix’s will was unambiguous and that “the Pennsylvania Association comes closest to the designation used by the testatrix. To reach our conclusion, we need only change the word ‘Home’ to ‘Association’”. [Emphasis supplied.]

First, as already indicated, the proper test in determining whether a will is unambiguous is: is it of such similarity as to identify the beneficiary with “sufficient exactitude to clearly indicate a person or organization legally qualified to take.” [Emphasis supplied.] Berks County Tuberculosis Society Appeal, 418 Pa. 112, 115, 208 A. 2d 857, 858 (1965). It is obvious that the lower court applied an improper standard; it merely determined that the Pennsylvania Association came “closest” to the name used by the testatrix, not that it “clearly” indicated the proper beneficiary.

Second, the lower court was incorrect in stating that only one change is necessary to equate the “named” beneficiary with the Pennsylvania Association. The identifying words “Pittsburgh, Pennsylvania” appear after the names of seven of the fourteen named charitable beneficiaries in the testatrix’s will. Of the remaining seven named charitable organizations in the will, two of them contain the word “Pittsburgh” in their title, one (Bickur Cholim Jewish Home For The Aged) located in Pittsburgh is the only such named organization in Pennsylvania, and the remaining four are all nation-wide organizations. Thus, it is evident that the placing of the words “Pittsburgh, Pennsylvania” after the names of many of the charitable organizations was merely the scrivener’s style to identify the beneficiary as being located in Pittsburgh. Of. Berks County Tuberculosis Society Appeal, supra. Therefore, the question we are faced with is, whether it can be unambiguously determined if the charitable gift bequeathed to the “Pennsylvania Home for the Blind” was left to the “Western Pennsylvania School for Blind Children” or to the “Pittsburgh Branch, Pennsylvania Association for the Blind, Incorporated.” Although, the Pennsylvania Association is clearly closer in title to the name used by the testatrix, it is not of such similarity as to identify the beneficiary with “sufficient exactitude to clearly indicate a person or organization. . . .”

In addition, it has long been held in Pennsylvania that a “latent ambiguity can ... be developed by extrinsic and collateral circumstances and it is always competent to show that such ambiguity exists.” Metzger's Estate, 222 Pa. 276, 281, 71 A. 96, 97-98 (1908).³ The testatrix’s “named” beneficiary presents just such a latent ambiguity.

The School introduced evidence showing that it has become known to the public as the “Home” for the blind. To buttress this argument, it contends: “The words used by Testatrix describe three characteristics of her intended beneficiary. First, not only is the term ‘Pennsylvania’ used in the forepart of the name of the beneficiary, but it is specifically stated that the address is Pittsburgh, Pennsylvania. Both claimants qualify in this respect. Second, it is an organization ‘. . . for the blind’. Again, both claimants provide services for the blind. Third, and it is submitted most important, Testatrix has characterized a particular function provided by her intended beneficiary. It is a ‘Home’ for the blind.” The School, which educates and trains the visually handicapped, does provide board and lodging for about 95% of its two hundred students; and, hence, may be considered a “Home.” While, the Pennsylvania Association, although encompassing a wide range of programs for the visually disabled, does not provide any housing for its clients. Thus, it cannot be considered a “Home.” Therefore, we are faced with the problem of whether the testatrix was referring to the School —by its often used misnomer. To resolve this ambiguity a court must turn to extrinsic evidence.

Hence, since there is an ambiguity in the will concerning the identity of an intended beneficiary, it was proper for the lower court to have admitted extrinsic evidence to aid the court in establishing the beneficiary’s correct identity. Black Estate, 398 Pa. 390, 158 A. 2d 133 (1960).

Admittedly, there is no organization in Pittsburgh (or in Pennsylvania) known as the “Pennsylvania Home for the Blind,” and it is obvious the intended beneficiary was given an erroneous name by the testatrix. Moreover, the record is persuasive that neither claimant involved in this appeal truly and adequately fits the description, “Pennsylvania Home for the Blind.”

The School, although it provides lodging for many of its students, is not the legal residence of the students and, very significantly, its services are limited to children. And, there is nothing in decedent’s will indicating she sought to aid children only. Furthermore, there is evidence in the record that in a previous will dated January 14, 1958,⁴ testatrix also created a charitable bequest for the benefit of various charitable organizations, including the “Western Pennsylvania School for Blind Children, of Pittsburgh, Pennsylvania,” and thus apparently knew how to identify the School correctly. This being so, if the testatrix intended the School to be the beneficiary in the 1965 will, why wasn’t the designee more carefully described?

Hence, neither the will nor the extrinsic evidence convincingly supports the claims of either the Pennsylvania Association or the School that it was the intended beneficiary; although, the extrinsic evidence does lucidly demonstrate that there is an ambiguity in the will. Under the circumstances, the application of the doctrine of cy pres is warranted and proper.⁵ See Black Estate, supra, and Women’s Homoeopathic Hospital of Philadelphia Case, 393 Pa. 313, M2 A. 2d 292 (1958). Black Estate, a closely analogous case involved a holographic codicil, which provided in part: “Balance — to go to Board of Christian Education First Presbyterian Church — N.Y.” No such organization existed and both “The First Presbyterian Church in the City of New York, founded 1716, Old First, University Place and Madison Square Foundations” [also known as The First Presbyterian Church of New York] and “The Board of Christian Education of the Presbyterian Church in the United States of America” claimed to be the beneficiary. This Court in awarding the bequest by the doctrine of cy pres to the Board of Christian Education reversed the lower court’s decision as an abuse of discretion.⁶ Thus, demonstrating that the doctrine of cy pres is applicable in cases of this sort.

Furthermore, the cy pres statute specifically states that if a charitable purpose becomes “indefinite” the doctrine of cy pres is applicable. Indefinite is defined as “(h)aving no definite or clear meaning or purpose; vague or general; not precise or certain, as indefinite emotions; an indefinite language, plan.”⁷ (Emphasis supplied.) Surely, if any meaning is to be given to the statutory word “indefinite”, which we must,⁸ this case is the proper decision to bring into effect its application. Since, the testatrix’s “named” beneficiary is too “indefinite” to either be ascertainable from the will itself or from the extrinsic evidence, application of the doctrine of cy pres is proper. Not only is it proper, but it would be error if we did not apply the doctrine. Black Estate, supra, and Women’s Homoeopathic Hospital of Philadelphia Case, supra.

The lower court correctly concluded the doctrine of cy pres should be applied, but then awarded the gift in its entirety to the Pennsylvania Association. To justify its selection of the Pennsylvania Association over the other claimants, it cited the following reasons: (1) The testatrix was of the Jewish faith and the Pennsylvania Association “is probably an object of charity among persons of the Jewish religion in this community, even though it is now nonsectarian”; (2) The title given the beneficiary in the will included the word “Pennsylvania”, thus indicating the testatrix intended a state-wide organization; (3) “[T]he Pennsylvania Association comes closest to the designation used by the testatrix. To reach our conclusion, we need only change the word ‘Home’ to ‘Association’ ”; (4) The testatrix intended an organization located in Pittsburgh and the Pennsylvania Association is so located.

The fact that the Pennsylvania Association is located in Pittsburgh does not, of itself, justify awarding the gift in its entirety to the Pennsylvania Association since the School, the other claimant here involved, is also located in Pittsburgh. Additionally, it appears that reasons (1), (2) and (3) given by the court to justify its selection of the Pennsylvania Association are not supported by the record.

The lower court’s conclusion that the testatrix intended to favor an organization founded by those of the Jewish faith is pure speculation. There are fourteen charitable organizations named as beneficiaries of the trust and only five are Jewish related. There is no evidence in the record that the testatrix ever had any affiliation of any land with the Pennsylvania Association. Moreover, the will itself manifests she was a woman of broad charitable intent desiring to aid the sick and the handicapped generally.

Next, the Pennsylvania Association is not a statewide organization, nor is it supervised or controlled by a state-wide organization.

In addition, a comparison of the title given the beneficiary, “Pennsylvania Home for the Blind, Pittsburgh, Pennsylvania” with that of the legal title of the Pennsylvania Association, “Pittsburgh Branch, Pennsylvania Association for the Blind, Incorporated,” as already indicated, readily discloses that a change in more than one word is needed to achieve sameness.

In view of the foregoing, we rule the lower court abused its discretion in awarding the gift to the Pennsylvania Association exclusively. The application of the doctrine of cy pres should effectuate the intent of the testator as nearly as humanly possible. See Women’s Homoeopathic Hospital of Philadelphia Case, supra. The intent of the testator is the fundamental guiding principle. See Henry Estate, 413 Pa. 478, 198 A. 2d 585 (1964); Jull Estate, 370 Pa. 434, 88 A. 2d 753 (1952); and Ziegler Estate, 356 Pa. 93, 51 A. 2d 608 (1947).

Both organizations here involved render the type of service the testatrix intended to help. Either may well have been the intended beneficiary, bnt the true beneficiary is impossible to ascertain. If the School were the intended beneficiary, awarding the gift of the Pennsylvania Association exclusively, would result in a harsh injustice.

We recognize that in applying the doctrine of cy pres, courts in the attempt to effectuate the testator’s intent, ordinarily select only one eleemosynary institution whose services approximate that intended by the donor. Both the Pennsylvania Association and the School render services which approximate the intent of the testatrix herein. Selecting one over the other is a tossup. This, we would not do.

In Women’s Homoeopathic Hospital of Philadelphia Case, supra, this Court ruled that in applying the doctrine of cy pres, a court, under certain circumstances, may properly divide the proceeds of a trust. The power to do so was also recognized in Black Estate, supra. The circumstances herein justify and warrant such action.

The decree is reversed, and the record is remanded with directions to enter a decree dictated by this opinion.

Costs to be paid from that portion of the trust here involved.

Mr. Justice O’Brien took no part in the consideration or decision of this case. Mr. Justice Manderino dissents.

1 A codicil to the will dated December 1, 1965, in no way effects the outcome of the issue here involved and need not concern us.

2 The Greater Pittsburgh Guild for the Blind did not appeal.

3 See Berks County Tuberculosis Society Appeal, supra, and Wachstetter Will, 420 Pa. 219, 216 A. 2d 66 (1966). Also see In re Bletsch’s Estate, 25 Wis. 2d 40, 130 N.W. 2d 275 (1964), which states that a bequest to a non-existent beneficiary gives rise to a latent ambiguity.

4 The 1958 and 1965 wills were prepared by different attorneys.

5 Cy Pres is expressly covered in Pennsylvania by statute— the Act of April 24, 1947, P. L. 100, §10, 20 P.S. §301.10, which states: “Except as otherwise provided by the conveyor, if the charitable purpose for which an interest shall be conveyed shall be or become indefinite or impossible or impractical of fulfillment, or if it shall not have been carried out for want of a trustee or because of the failure of a trustee to designate such purpose, the court may, on application of the trustee or of any interested person or of the Attorney General of the Commonwealth, after proof of notice to the Attorney General of the Commonwealth when he is not the petitioner, order an administration or distribution of the estate for a charitable purpose in a manner as nearly as possible to fulfill the intention of the conveyor, whether his charitable intent be general or specific.”

6 See Woods, Wills and Administration, 22 Pitts. L. Rev. 297, 302-03 (1960). Also see In re Wolfs Estate, 162 N.Y.S. 2d 645 (1957), and In re Bletsch's Estate, supra.

7 Webster’s New International Dictionary, Second Edition Unabridged, copyright 1959.

8 It has long been held in this Commonwealth that every word oí a statute is to be construed according to its common and everyday meaning. Treaster v. Union Township, 430 Pa. 223, 242 A. 2d 252 (1968).