Appeals, Nos. 267, 268 and 269, March T., 1960, from decree of Orphans' Court of Allegheny County, No. 4887 of 1956, in re estate of Louis Little, deceased. Decree affirmed.
Louis Vaira, with him Robbin B. Wolf, for appellants.
Abraham Pervin, with him Herbert B. Sachs, Richard Hart Schwartz, and Sachs, Pervin, Kaufman & Menzer, for appellees.
Lois G. Forer, Deputy Attorney General, with her Anne X. Alpern, Attorney General, for Attorney General as parens patriae.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
Louis Little, a well known Pittsburgh criminal lawyer of many years' practice, died testate and unmarried on October 26, 1956, leaving to survive him two sisters, Ethel Silverman and Pearl Kwalwasser, and one brother, George Little. At the audit of the first and final account of the executors of the testator's will, questions were raised concerning the proper construction of the document principally with respect to the trust of the residuary estate as specified
in paragraph (15) of the will. It is the contention of the testator's heirs at law that the trust failed because of vagueness and for want of definiteness of purpose and that the decedent died intestate as to his residuary estate. The auditing judge resolved this question in a well reasoned opinion by concluding that a valid charitable trust had been testamentarily created, and entered a decree of distribution accordingly. The decedent's two sisters and brother filed exceptions which, after argument, the court en banc dismissed and approved the auditing judge's disposition of the controversy. The court en banc, however, modified the decree entered by the auditing judge to the extent of detailing the specifications of the trust's purposes and, as so modified, affirmed the decree of distribution. The decedent's two sisters and brother have separately appealed.
We agree with the court below that the testator by paragraph (15) of his will created a valid and enforceable charitable trust for the purpose of memorializing his deceased brother Hyman and his deceased parents by the trustees devoting trust funds to useful charitable purposes in memory of the testator's deceased brother and parents. In support of this conclusion, we cannot do better than quote the cogent opinion of the auditing judge as follows: "The fifteenth paragraph of the decedent's will provides: 'The balance of my Estate, real, personal and mixed is to be deposited, after payment of taxes in a fund. From this Fund there must be a suitable memorial for my saintly brother Hyman & my wonderful parents Lizzie & Jacob Little. I entreat my executors to seek advise from good friend Leon Falk as to the nature of the memorials. However I do not want this money to be governed or used by social workers in any manner whatsoever as I have seen to much abuse, extravagance, duplication and more, by them.'
"Although this provision is not placed at the end of the decedent's will, and he makes other dispository provisions thereafter, the language therein contained clearly manifests that he intended it to be a residuary clause which disposes of his entire residuary estate.
"The testator intended in this provision to create a trust of his residuary estate as a memorial to his deceased brother Hyman and his deceased parents. He intended his executors to be the trustees of this trust. No language is contained in the provision which spells out the specific use to be made of the trust funds, or imposes specific duties on his trustees in relation thereto. The testator's heirs at law infer, by reason of this omission, that he did not intend to limit the use of the trust funds to charitable uses, and, by reason of his failure to impose specific duties on his trustees in relation thereto, the trust is a dry trust. They conclude that the trust fails and the testator died intestate as to his residuary estate, and they, his heirs at law, take under the intestate act.
"The writer cannot agree that the omission of language in this provision spelling out the use the testator intended should be made of the trust fund, per se, authorizes his trustees to use it for any purpose, charitable or otherwise. It may be argued with equal cogency that, since the testator failed to specifically authorize the use of the trust fund for non-charitable uses, he intended to limit its use to charitable uses. The testator's intent is to be ascertained from a consideration not only of the language contained in this provision but also from his will in its entirety, and the circumstances which attended him when he prepared and executed his will.
"The testator was for many years a practitioner at the bar of this county. He was an outstanding criminal lawyer. In the latter years of his life he devoted less of his time to the practice of law, and an
increasingly greater part to public affairs and philanthropy. He died approximately one year and two months after he prepared and executed his will. He had never married. He was survived by two sisters and a brother, his heirs at law.
"The will is holographic. The testator was ill when he prepared and executed it. Its content evidences that when he prepared it he realized that his life was drawing to a close. It is an enlightening instrument, for in it the testator not only provides for the disposition of his material wealth but also expresses the philosophy which motivated his life. His will repeatedly expresses his veneration and love for his deceased brother Hyman and his deceased parents. In the third paragraph he refers to his 'gentlemanly father' and his 'brilliant ambitious mother'. He states: 'They are both in heaven, waiting, for me - if there is such a place'. In the sixteenth paragraph he provides: 'I want to be buried in an inexpensive casket and a vault next to my brother Hym. & dearest pal I ever had. He was a paragon'. In paragraph 22 he states: 'Of everything that meant good in life, I insist that his name Hyman Little be honored in death by my executors. In Roosevelt Acres, which we own is a plot we intended to give to the public as a park or playground. I direct my executors to buy this from my brother and sister and have my friend the Mayor dedicate this to Hyman Little.' In the fifteenth paragraph, which we are construing, he refers to 'my saintly brother Hyman & my wonderful parents Lizzie & Jacob Little.'
"In other provisions in his will the testator makes gifts to members of his family, employees, and friends.
"Louis Little was of the Jewish faith, which includes in its primary tenets the performance of charity and the ...