Kessler's Estate

70 A. 770, 221 Pa. 314, 1908 Pa. LEXIS 483

Opinion

Opinion by

Mr: Justice Elkin,

The question to be determined on this appeal is whether certain bequests to charitable and religious uses contained in the last will and testament of the decedent are valid under section 11 of the Act of April 26, 1855, P. L. 328. The will was prepared and executed more than one calendar month before the decease of the testator, and the only point pressed in the court below and raised here is that it was not attested by two credible, and at the time, disinterested witnesses as required by the act. There are two subscribing witnesses to the will, and if they are disinterested, the bequest to charitable and religious uses must stand, if not they must fall. The whole case turns on the point what constitutes such an interest as will disqualify an attesting witness. It was held in a recent case that the attesting witnesses required by the act of 1855 must be subscribing witnesses: Paxson’s Estate, ante, p. 98. It was decided in Morgan’s Estate, 219 Pa. 355, that where a subscribing witness knows that he is signing a testamentary paper, sees the testator sign it, and is asked by the testator or by the other witness in testator’s presence to sign as a witness, it is not necessary that he should hear it read or know its contents. Under the rule of Paxson’s Estate, supra, the only witnesses to be considered in the present case are Wilmerton and Fuigle, who' attested the will by subscribing their names as witnesses to its execution. As to the sub scribing witness Fuigle, the contention that he is not an-attesting witness within the meaning of the act because he did not see the testator sign his name to the will and was not. made familiar with its contents cannot prevail under the au-. thority of Morgan’s Estate' above cited, To the same effect is Combs’ and Flanldnson’s Appeal, 105 Pa. 155, wherein Mr. Justice Trunkey, who delivered the opinion of the court, said : “ Hence if witnesses were present at' that time'of the'execution and saw the testator sign the will, and they subscribed it in his presence, it is unnecessary that they should have known the contents or that the testator should have declared to them that it was his will.” It is not indispensable that the witness should see the testator sign the will. The testator may, after the will has been prepared, affix his name thereto and subsequently acknowledge his signature in the presence of a subscribing witness : Irvine’s Estate, 206 Pa. 1. This is what was done with the witness Fuigle, who went into the office where the testator was seated at a desk, with the will already signed by him in his hand, the name of the testator being in the plain view of the witness who was requested to sign his name below that of the other subscribing witness, which he did, after having been told by the other witness out in the shop that the testator desired him to be a witness to his will. It was not necessary that he should have affirmative knowledge of the contents of the will,' or of the devises, or bequests,- or of the testamentary disposition made of the property by the testator in order to qualify him to act as a witness to its execution. We, therefore, hold that Fuigle was a credible and at the time of the execution of the will, a disinterested witness.

The act of 1855 is a remedial statute, and should be construed so as to give effect to -the purpose for which it was enacted. While charities may be said to be favorites' of the law, and Avhen in times like the present vast wealth is accumulated in the hands of individuals, it is not only desirable, but highly commendable, for persons possessed of large estates to set apart portions thereof for religious and charitable uses, yet the law discourages such gifts at or near the time of impending deaths Avhen the mental faculties are impaired, the will power broken and the vital forces Aveakened, because; under such circumstances, the importunities of designing persons or the terrors of final dissolution, may induce dis-positions of property contrary to natural justice, and without .regard to the ties of kinship, which, under normal conditions, would be operative on the mind of the testator. A man may do what he will with his own. He may give all he has to his relatives and friends, or he may give it to religious and charitable uses if, he so desires, but when he leaves the channels through which natural benefactions flow to extend aid to those objects or institutions intended to improve the morals and better the conditions of the general public, the law says to him such intention must be manifested by a deed or will, executed at such a time and in such a manner as to make it reasonably certain that the thing done was the free will act of the donor, and was not the result of undue solicitation on the part of interested persons. Hence the requirement that the deed or will be attested by two credible, and at the time disinterested witnesses. With the policy of the law involved in this legislation we have nothing to do, but as to the act1 itself, clearly within the power of the legislature to pass, it is the duty of the court to enforce its requirements so as to effectuate the purpose for which it was enacted. It must, therefore, be determined whether Wilmerton, who attested the will as a subscribing witness, had such an interest as to disqualify him within the meaning of the act. He was one of the executors of the will; he was a trustee and officer in a church to which part of the income and ultimately a portion of the corpus of the trust estate was directed to go ; he had an option to purchase certain shares of stock which were a part of the trust for religious and charitable uses, at a price to be agreed upon by three disinterested persons, to be selected in a particular manner ; he was one of two trustees to whom the stock of the Kessler Wagon Works Company was given in trust to vote at corporate elections, and whose duties required that dividends received be paid by them to the charities named and in the proportions fixed in the will; he was also a stockholder and director in the wagon company, as well as an officer and employee, and had whatever benefit accrued to him as a stockholder and officer in that company by reason of having the power to vote the stock so held in trust by him ; he was also entitled to his commissions not only as executor but as trustee. Did these things create such an interest as to disqualify him as a witness to the will ? It must be conceded that there is some confusion growing out of our own cases on the subject, and it must be accepted as finally settled that the nomination by a testator of a person to act as an executor does not in itself constitute such an interest as to disqualify the person so nominated to act as a witness. This is the doctrine of Snyder v. Bull, 17 Pa. 51; Combs’ and Hankinson’s Appeal, 105 Pa. 155, and Jordan’s Estate, 161 Pa. 393. We recognize these cases as authority for the exact question decided therein, that is to say, an executor may be an attesting witness to a will making bequests to religious and charitable uses. Snyder v. Bull, decided in 1851, had no reference to the act of 1855. The matter for consideration in that case was the proper proof of a will under the act of 1833, and all that was said by Mr. Justice Gibson had reference to the law as it then stood. The test applied was the qualification of witnesses generally in legal proceedings, but this test can scarcely be held to apply to the act of 1855, which had not been passed at that time, and which was intended to accomplish a very different purpose. It is true that in Combs’ and Ilankinson’s Appeal and in Jordan’s Estate the line of reasoning suggested in Snyder v. Bull was followed by the learned justices who wrote the opinions in the later cases. The rule of these cases is predicated on the theory that an interest such as would disqualify must be present, certain and vested, and not uncertain, remote or contingent. In other words, it must be what has been called a substantial or legal interest. With such a definition of interest it naturally followed that an executor, though nominated in the will, did not have a present or vested interest because he might die before the testator, or his nomination as executor, or the will itself, might be revoked. While we consider the rule of these cases to have overlooked the spirit and purpose of the act of 1855, it is authority for what was therein decided, and will be so regarded, but the doctrine will not be further extended. We agree with the suggestion of the learned judge of the court below, who delivered the opinion on the exceptions to the adjudication in the present case, in reference to the logical result of the application of this doctrine, wherein it is said : “ Carried to its logical extreme such interpretation practically nullifies the purpose of the act, at least so far as a will is concerned, for as the testator may at any time revoke a will, and as, therefore, none of its provisions may ever become effective, every witness can necessarily have no interest pecuniary or otherwise at the time of signing; and as a deed is witnessed before delivery and becomes effective only on delivery, by a parity of reasoning all witnesses to deeds are at the time disinterested.” We think the test of qualification for witnesses in judicial proceedings generally, as given by Greenleaf and other text-writers, and followed by some decisions of our courts, does not, and should not, control in arriving at a proper interpretation of the act of 1855. The words, “ disinterested witnesses,” used in this act, must be read and understood in connection with the subject-matter of the statute, the evils to be avoided, the requirements intended to safeguard the rights and property of persons approaching death, and the remedy to be provided in such cases. When so read and understood, the interest which disqualifies a witness under the act is such an interest as appears to exist at the time of the execution of the will, either by the terms of the will itself or by reason of the attesting witness being then interested in the religious or charitable institutions for which provision is made bj^ the testator, or both, or either, as the case may be. Again, from what has been hereinbefore stated and by reason of the specific requirements of the act, it seems clear that an interest in any part of the will is such as will disqualify a witness for the purpose of attestation. The act requires the execution of the deed or will to be attested by two disinterested witnesses. It will be observed that the attestation of the execution of the whole instrument is what is required by the statute. The purpose of the act was to place the settlor, or the testator, at the time of the execution of the instrument, in the presence of two disinterested witnesses, so that he would be entirely free from the importunities and solicitations of interested persons. If the attesting witness be interested as legatee or devisee under the will, or is to derive a pecuniary benefit or advantage from any part of it, or if he is interested at the time of attestation in a religious or charitable institution to be benefited thereby, he is not disinterested within the meaning of the statute. Under this view of the law, Wilmerton was disqualified to act as an attesting witness, and the bequests to religious and charitable uses must be held invalid.

Decree reversed and record remitted to the court below, in order that distribution may be made in accordance with this opinion.