Stinson's Estate

Mr. Justice Stewart,

dissenting:

As I view it, this decision not only contravenes a settled rule of construction which, since Pennock’s Estate, *22620 Pa. 268, has been uniformly applied, but it extends the disqualification of witnesses to a testamentary act to cases not falling within the mischief which the statute of April 26, 1855, was intended to prevent. Pennock’s Estate was a case most carefully considered, and the deliverance there was the final expression of the court with respect to a question which theretofore had been much discussed, but until then never settled. The uncertainty in which it had been left required the adoption of a fixed rule of construction, and this was expressed in one of the conclusions reached by the court in that case. It is as follows: "Words in a will expressive of desire, recommendation, and confidence are not words of technical, but of common parlance, and are not, prima facie, sufficient to convert a devise or bequest into a trust; and the old Roman and English rule on this subject is not part of the common law of Pennsylvania.” The rationale of the rule is that an absolute estate having been given, it may not be derogated from by mere precatory words. It would ' burden this dissent if I were to cite all the cases in which the rule has been followed. One or two will suffice. In Burt v. Herron, 66 Pa. 400, Mr. Justice Si-iarswood says: "It is undoubtedly true that where a testator makes an absolute devise or bequest, mere precatory words of desire or recommendation annexed will not in general convert the devisee or legatee into a trustee, unless indeed it appear affirmatively that they were intended to be imperative. The authorities, which are somewhat discordant, were fully examined in Pennock’s Estate, 20 Pa. 268, and the rule of construction settled upon what seems to be the most reasonable foundation.” What subsequently occurs in the opinion and is supposed to qualify that which precedes, in no sense qualifies, but reaffirms. The reference in the opinion is to precatory words which stand alone, and are the only direct disposition of the estate, as will be seen from the following quotation: "Should a testator say merely, ‘ I desire A. B. to have a thousand dollars,’ it would be as effectual a legacy as if he was expressly to direct or *227will it, or were to add, ‘out of my estate/ or that it should be paid by his executor. The reason is obvious. A will, in its very nature, is the disposition which the testator desires to have made of his estate after his death. All the expressions in it indicative of his wish or will are commands. It is different when, having made a disposition, he expresses a desire that the legatee or devisee should make a certain use of his bounty.” The case was cited and relied upon in Hopkins v. Glunt, 111 Pa. 287, where Chief Justice Mercuk uses this language: “In this state the rule is well settled that words in a will merely expressive of desire, recommendation, and confidence, are not sufficient to convert a devise or bequest into a trust: Pennock's Estate, 20 Pa. 268; Jauretche v. Proctor, 48 Pa. 466; Second Reformed Presbyterian Church v. Disbrow, 52 Pa. 219; Bowlby v. Thunder, 105 Pa. 173. Expression of a desire or a wish of the testator as to a specific disposition of his property, standing by themselves alone, may constitute a valid devise or bequest thereof. The rule is different when such expressions are used after an absolute disposition of the property has been made. After an unqualified devise by the testator of his property, no precatory words to his devisee can defeat the estate previously granted: Burt v. Herron, 16 P. F. S. 400.” If there is a case in Pennsylvania since Pennock's Estate in which this rule has ever been questioned, much less departed from, my attention has not been directed to it. In the present case the devise was of an absolute estate to the Women’s Christian Association, as was also the bequest. Immediately following, the testatrix employs apt words of direct disposition. She not only wishes, but she “appoints” that the institution she proposes to have established, “shall be carried out upon the plan of the Women’s Christian Association of Philadelphia, Eighteenth and Arch Streets, with the exception that the institution is for Protestants only.” This was a direct and positive definition of the charity, and a substantive part of the gift itself. ■ It will be observed that she does not attempt to appoint *228an executive committee, but having disposed of her estate, absolutely to the institution which she creates and endows, she simply expresses a preference that certain individuals named shall compose that committee. Her language is, “I would like the Executive Committee to consist of the following ladies,” naming them, and including one who became a witness to the execution of the will, and who is now adjudged to have been disqualified. The distinction between the two clauses of the will is too obvious to be overlooked. The difference of expression is convincing to me that the distinction must have been in the mind of the testatrix. Any other interpretation leaves unexplained the use of the word “appoint” in the one and the omission of it in the other. The earlier one was a positive direction .accompanying the gift; the later was simply the expression of a preference, the gift in no wise depending upon its observance. I would adhere to the rule in Pennock’s Estate, which as Mr. Justice Si-iarswood says in Burt v. Herron, supra, “is settled on what seems to be a most reasonable foundation.”

But more than this, the decision here disqualifies where there can be no reason for the disqualification. Not only was it not shown that Mrs. Ralston was a member of any Women’s Christian Association, but this particular association which testatrix was providing for had no existence when the will was made; and whether Mrs. Ralston was ever to become identified with it, when created, rested, other conditions being favorable, on her own pleasure. Upon the death of the testatrix, what possible interest in the estate could Mrs. Ralston have asserted, and in what tribunal could she have been heard? In Kessler’s Estate, 221 Pa. 314, we advanced beyond anything we had ever decided with respect to disqualification arising under the act of 1855. This decision marks a still further advance, and Kessler’s Estate therefore furnishes no warrant for it. In that case it is said: “The words 'disinterested witnesses,’ used in this act, must be read and understood in connection with the subject-matter of the statute, the *229evils 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 by the testator, or both, or either, as the case may be.” At' the time of the attestation of this will Mrs. Ralston was not interested “by the terms.of the will.” The will gave her nothing; nor was she interested in the charity that the will provided for. The will did not make her a member of the executive committee of the institution to be erected. Whether she was ever to become a member depended first of all upon the action of the proper authorities, and quite as much upon her own pleasure. Both would have to concur. Her membership at most was a mere possibility. If we are to place a construction on the act of 1855 that will disqualify an attesting witness because some time in the future he or she may become a manager or other officer of the charitable institution to be founded, the enforcement of the act in accordance with such construction becomes absolutely impracticable. Under the doctrine in Kessler’s Estate, the interest that disqualifies must be a then present interest at the time of the attestation. In that case the attesting witness who was adjudged disqualified was a trustee or officer of the church that was legatee under the will; he was one of two trustees to whom the stock in a private corporation of which he was a member and officer was given in trust to vote at corporate elections, and whose duties required the dividends received by them were to be paid over by the charities named in the will; and further, he was given an option to purchase at a price agreed upon by three disinterested persons. It was held that not only was the witness interested by the terms of the will, but was interested at the time of the attestation because of his *230then association with the established charities which it was the purpose of the will to assist. It is readily seen how the present decision advances upon that. To the extent it advances, it finds no support in either Kessler’s Estate or any of our own authorities. I would not qualify in any way Kessler’s Estate, but I would hold that the interest which disqualifies must be something more than an appointment to an office created by the will, which may be accepted or declined by the party so appointed at his or her pleasure or convenience; that the interest in any event must be more than a merely contingent one. It is upon this ground that we have held that executors are not disqualified, and I would apply the same rule here.

I would sustain the appeal. '