DARLINGTON'S ESTATE

OPINION BY MR. JUSTICE FRAZER, April 18, 1927:

Appellant is a collateral heir of Mary O'Hara Darlington, who died May 17, 1925, leaving a will dated October 16, 1923, to which was added a codicil dated April 25, 1925, less than a month previous to her death. Appellant claims the codicil operated as a republication of the will as of the later date and, consequently, several charitable devises and bequests contained in the will are void and go to the heirs under the intestate law. Objection is also made to other specific bequests. We find no disputed facts, and the findings of the court below are based on statements appearing in the petition for a rehearing on and answers made by beneficiaries under the will. The court below sustained the will and this appeal followed.

Appellant claims a gift to Mary E. Murray of "two 5% long term bonds of $1,000 each" is void for want of specific designation in the will as to the identity of the obligations. There were many bonds among the assets of the estate and the auditing judge chose from these one 5% long term bond for $2,000, the market value of which was at or near par. The selection thus made was a proper exercise of discretion, and the fact that testatrix neglected to designate the particular bonds she desired to bequeath, did not invalidate the gift. The language of the bequest was to the same effect as if testatrix had expressly given such bonds corresponding to the amount and percentage named as her executors might choose.

Testatrix devised her interest in a part of "Guyasuta Farm," to the "Pittsburgh and Allegheny County Council Boy Scouts of America," the tract to be called "The Darlington Bird Sanctuary Guyasuta Reservation" to be under the auspices of the State Forestry Department, the purpose being to preserve wild flowers, plants, trees, birds and animals, and directed that the income from an indicated fund should be used for the care of this reservation, the fund and the property to be without liability for past or future debts of the Boy Scout Organization. The validity of this bequest is questioned on several grounds. One is that the name of the local council of Boy Scouts is stated incorrectly, the proper name being the "Allegheny County Council Boy Scouts of America." No evidence was produced, however, tending to show the existence of two organizations of the character named having similar titles, hence there was no question as to the identity of this beneficiary, and, had there been doubt, parol evidence would have been admissible to show for which council the legacy was intended: Shand's Est., 275 Pa. 77, 81, and cases there cited.

The fact that testatrix owned only an undivided three-fourths interest in the land devised to this organization, did not affect the validity of the gift. Whatever interest she had, passed to the devisee and no adequate reason is given to support the view that, unless testatrix owned the entire fee, she was without right to devise the interest she had. That differences may possibly arise in the future, in the use of the property, by the devisee attempting to carry out the wishes of testatrix, are matters with which we are not concerned in a proceeding to determine the validity of the gift.

The stipulation that the gift should not be liable for debts of the organization was a valid restriction, testatrix having the right to make the gift on such terms as to her seemed proper and necessary. Neither was the gift void as violating the rule against perpetuities. The Boy Scouts is a charitable organization and the gift is, for that reason, within section 10 of the Act of April 26, 1855, P. L. 328, and its various amendments, down to the Act of May 23, 1895, P. L. 114, which provides, among other things, that no disposition of property for a charitable use shall fail because given in perpetuity, but that it shall be the duty of the orphans' court to carry into effect the intent of testator so far as can be ascertained. The act referred to, further provides that if the objects of the trust be not ascertainable, or have ceased to exist, or such disposition be in excess of the annual value permitted by law, or in perpetuity, such disposition, so far as it exceeds the power of the courts to determine the same by the rules of law or equity, shall be taken to have been made subject to be further regulated and disposed of by the legislature of this Commonwealth, in manner as nearly in conformity with the intent of the donor or testator and the rules of law against perpetuities as practicable, or otherwise to accrue to the public treasury for public use.

Under the above provisions of the Act of 1895, even if the gift should, for any reason, be held defective, all interests of the residuary legatees or heirs at law are effectually eliminated, and, accordingly, they are without standing to question the decree of the court. The effect of the above act was fully discussed in Kortright's Est. (No. 2), 237 Pa. 143; McCully's Est., 269 Pa. 122, and Thompson's Est., 282 Pa. 30. In these cases the conclusion of this court was adverse to appellant's contention.

Testatrix gave to the "University of Pittsburgh" books, furniture and pictures, with a bequest of $2,000 "for arranging and cataloguing" the articles given, and also made the same institution residuary legatee, the gift to be used toward a general library building fund. Objection is made to this bequest by appellant. The University of Pittsburgh was incorporated by special act of the legislature approved the 18th day of February, 1819, P. L. 152, under the name of the Western University of Pennsylvania and in changing its name to its present title, by decree of the court of common pleas, dated July 11, 1908, the proceedings appear to have been somewhat irregular. Assuming this to be so, it does not help appellant, as no doubt exists as to the identity of the beneficiary and beyond this we are not concerned in this proceeding. We are not privileged to make a collateral inquiry into a matter wholly outside the jurisdiction of the court below.

Another objection is that the University of Pittsburgh already has property yielding an annual income of $200,000 a year, and this sum being the limit allowed by its charter, the additional gift by testatrix was void. Whether this be true or not, appellant can have no possible interest in this gift, for reasons already stated. For the same reason we need not inquire into the effect of the Act of June 8, 1891, P. L. 211, requiring real estate devised for charitable purposes to be sold within five years from the time the right of possession shall accrue to such corporation.

Appellant contends that legacies given to the First Presbyterian Church of Pittsburgh, and the Women's Work Society, and Women's Home and Foreign Missionary Society, the latter two being organizations affiliated with the congregation named, are void because Frank C. Osborn, one of the witnesses to the will, is a ruling elder of that congregation and consequently not a disinterested witness, as the law requires. It is conceded that, as such official, his duties in connection with the church were limited to matters of doctrine and dicipline, and that he was without voice or authority in the management of the church property.

The words "disinterested witnesses," as used in the Act of April 26, 1855, P. L. 328, now replaced by section 6 of the Act of June 7, 1917, P. L. 403, must be read and understood in connection with the subject-matter of the statute, and the evils to be avoided, the requirements being intended to safeguard the rights and property of persons approaching death, and the remedy to be provided in such cases: Kessler's Est., 221 Pa. 314, 323. A discussion of this point is found in Channon's Est., 266 Pa. 417, where the question was whether a member of the Independent Order of Odd Fellows was interested in the Odd Fellows Home, the beneficiary under an alleged charitable gift, so as to disqualify him from being a competent witness to the will. Although we there held that the Order of Odd Fellows is not a charity, the following extract from the opinion is relevant to the question now before us (page 424):

"No matter what the governing rule may be where the alleged disqualification arises from an interest in a charity, we again say, at the cost of reiteration, under present circumstances the interest which will affect the capacity of an attesting witness must be in the nature of a direct property right in the testamentary fund, or such immediate, certain, close and intimate connection with the legatee as leads to the inevitable conclusion that the witness will pecuniarily profit by the legacy." The third syllabus in Channon's Estate directly covers the case in hand.

Taking into consideration the evils intended to be avoided by the statute, we are of the opinion the witness, Osborn, did not possess such interest in the charities mentioned, and could not receive from them such benefit, pecuniary interest or advantage as is within the contemplation of the Act of 1917, but, on the contrary, that his interest was too remote to disqualify him as an attesting witness.

Finally, appellant asks us to hold various charitable bequests void because made within thirty days of the death of testatrix. The will was written and signed more than a year before testatrix died; a codicil, however, was executed within thirty days of her death. The gifts in question were contained in the will. The codicil was made "in view of the fact that there are several pending and unfinished matters which should be attended to," if for any reason testatrix herself should be unable to dispose of them. Testatrix then referred to having made an offer to purchase the remaining undivided interest in the farm devised to the Boy Scouts, and authorized her executor to acquire that interest if the offer should be accepted, and hold it for the same purpose as the remainder of the tract. The interest referred to was not acquired, and the property continues to be owned in severalty by the former tenants in common, hence this provision is inoperative. Other paragraphs of the codicil merely contained administrative provisions relating to the land devised to the Boy Scouts. It thus appears no effective gift was made by the codicil, and, consequently, while the rule is that a codicil operates as a republication of the will as of the date of the codicil, such republication does not operate to avoid gifts to charities contained in the will, unless the language used clearly shows such intention: Bingaman's Est., 281 Pa. 497; Williams on Executors, 221; Rhodes's Est., 147 Pa. 227, 230.

All findings of fact and conclusions of law made by the court below are fully warranted by the evidence. There was no error in permitting a specified sum of money to remain in the hands of the executor for the purpose of paying taxes and other charges on realty belonging to the estate.

All assignments of error are overruled and the decree of the court below is affirmed at the costs of appellant.