Opinion
May 18, 1936.
June 26, 1936.
Wills — Construction — Residuary bequests — Division among residuary legatees — Intention of testator — Failure of bequest — Act of June 7, 1917, P. L. 403 — Subscribing witness — Interest — Officer of trust company — Interest in charitable bequest — Act of June 7, 1917, P. L. 403.
1. Under the Act of June 7, 1917, P. L. 403, section 15(c), unless a contrary intention appears by the will, where a devise or bequest contained in the residuary clause of the will fails or is void, it must be divided among the other residuary devisees or legatees. [173]
2. Deed of trust which provided that the income of the residue of the estate, after the death of the life tenant, should be divided among named charitable organizations, with an alternative bequest, held to express intention of testator that his estate should be divided among those capable of taking. [171-3]
3. A witness to a will and to a deed of trust containing charitable bequests who is an officer of a trust company named as trustee is a disinterested witness within the meaning of the Act of June 7, 1917, P. L. 403, though the trust company is interested in one of the charities, where the trustee has no discretionary power over the distribution of the funds. [172-3]
Attorneys — Practice of law — Trust companies — Deed of trust — Acts of April 28, 1899, P. L. 117, and April 24, 1933, P. L. 66.
4. A deed of trust which is otherwise valid is not rendered void by the fact that it was drafted by an officer of a trust company in violation of the Act of April 28, 1899, P. L. 117, as amended by the Act of April 24, 1933, P. L. 66. [172]
5. Umble's Est., 117 Pa. Super. 15, approved. [172]
Decedent's estate — Parties — Interest — Next of kin — Intestacy.
6. The next of kin of a decedent are not parties interested in the estate as have the right to appeal unless there could be a whole or partial intestacy. [171]
Before KEPHART, C. J., SCHAFFER, MAXEY, LINN, STERN and BARNES, JJ.
Appeals, Nos. 95, 206 and 207, Jan. T., 1936, by next of kin, from decrees of O. C. Lancaster Co., May T., 1934, No. 117, and Nov. T., 1933, No. 74, in Estate of Christian J. Umble, deceased. Decrees affirmed.
Audit of account of trustee. Before APPEL, P. J.
The opinion of the Supreme Court states the facts.
Petition to set aside deed of trust and for distribution to heirs dismissed. Next of kin appealed.
Error assigned was dismissal of petition.
Chas. E. Workman, for appellant.
F. Lyman Windolph, of Windolph Mueller, for trustee, and legatees, appellees, Nos. 95 and 207.
Chas. W. Eaby, for Lancaster Automobile Club, appellee.
W. Hensel Brown, of Bard Brown, for Lancaster County Firemen's Association of Pennsylvania, appellee.
M. M. Harnish, for Lancaster Community Trust, appellee.
Argued May 18, 1936.
Appellant has taken three separate appeals, assigning as error the decrees of the court below refusing to set aside a deed creating a life insurance trust, and dismissing her exceptions to the adjudication of accounts under the deed and a will which contained similar dispositive provisions. The appeals will be disposed of together in this opinion.
The main question requiring consideration is whether appellant is an interested party having a right to appeal. She would have such interest only if there could be a whole or partial intestacy. If there can be no intestacy, she is not interested in the estate: Kortright's Estate (No. 2), 237 Pa. 143, 148.
Christian J. Umble created a life insurance trust by deed, naming the Northern Trust Savings Company trustee. A few days later he made a will disposing of the residue of his estate by provisions identical with those in the deed of trust. Both provided that the trustee is to pay the net income to his mother for life, and, on her death, "to divide the net income . . . equally among the following: Saint John's Lutheran Church, Lancaster, Pa., Grace Reformed Church, Eden, Lancaster Co., Pa., Lancaster Automobile Club, Lancaster County Firemen's Association, Eden Community Fire Co., organized 1928. If any or all of the above organizations are discontinued or . . . lose their identity . . . then . . . the trustee [is] to pay such share or shares of the income of the trust fund to the Lancaster Community Trust organized by the Lancaster Chamber of Commerce, Lancaster, Penna., in 1924." Umble survived his mother and died on November 2, 1933, unmarried and leaving as his next of kin certain collateral heirs, one of whom is appellant.
Appellant contends that the deed of trust is void, because it was drafted by an officer of Northern Trust Savings Company in violation of the Act of April 28, 1899, P. L. 117, as amended by the Act of April 24, 1933, P. L. 66. This objection was previously made by appellant to the validity of the will and was dismissed in Umble's Estate, 117 Pa. Super. 15. While that decision is not binding on this court (Dougherty v. Proctor Schwartz, 317 Pa. 363, 365), we adopt the view there expressed.
She urges the Lancaster Community Trust cannot take because an officer of the Northern Trust Savings Company, trustee named in the will and deed, was one of the subscribing witnesses to both, and as the bank was interested in the Community Trust, the officer was not a disinterested witness within the meaning of the Act of June 7, 1917, P. L. 403, section 6. The trustee had no discretionary power over the distribution of the funds and its officer was therefore not an interested witness. See Kessler's Estate, 221 Pa. 314; Baughman's Estate, 281 Pa. 23; Archambault's Estate, 308 Pa. 549.
The legal status of the two churches as beneficiaries is not subjected to attack. It is argued that the Lancaster Automobile Club and the Lancaster County Firemen's Association are not charities and cannot take in violation of the rule against perpetuities. The court below found that both organizations are charitable institutions and therefore have the right to participate in the income of the trust funds. But even if the bequests to these organizations are void, their shares would be divided among the churches in proportion to their respective interests in the residue under the Act of June 7, 1917, P. L. 403, section 15 (c). The will and deed directed the trustee "to divide the income" among five named organizations with an alternative bequest which indicates he intended that it should be divided among those capable of taking. As appellant can not take in any event, she has no standing to appeal. The other assignments of error are dismissed.
Decrees affirmed at appellant's cost.