Appeal from decree of Orphans' Court of Erie County, May T., 1963, No. 244, in re estate of Robert M. Thompson, deceased.
T. P. Dunn, with him John M. Wolford, and Dunn & Wolford, for appellant.
Barney Bernard, with him Evans, Johnson, Scarpitti & Bernard, for appellee.
John A. Blackmore, and Blackmore & Grieshober, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
Where a testator in a concededly valid will gives to a named executor his residuary estate for "distribution to and amongst such local charities as he [the executor] shall determine in his sole discretion", does the executor in his representative capacity, under the Register of Wills Act of 1951,*fn1 have the right to appeal from the probate of a codicil to such will which codicil completely cancels the gift of the residuary estate made in the will? Such constitutes the primary issue on this appeal.
On September 19, 1959, Robert M. Thompson (testator) made a will wherein he appointed L. S. Mosher as sole executor. In the 19th paragraph of that will, testator gave the "executor" certain personal effects, "in trust nevertheless, to distribute the same among such persons and in the manner as indicated by a memorandum to be enclosed in the envelope with this will but not to be recorded as a part of it". Under the 20th paragraph, testator gave the "executor" all the residuary estate*fn2 "for the purpose and administration and distribution to and amongst such local charities as he shall determine in his sole discretion in such amounts and such proportions as he shall choose, and I specifically provide that his conduct in such division of my residuary estate shall not be questioned."
Subsequent to testator's death on March 21, 1963, Bronte Greenwood, a member of the Philadelphia bar,*fn3 petitioned the Register of Wills of Erie County to probate the 1959 will and a codicil thereto, both instruments were probated and letters testamentary were issued to Greenwood, the codicil-named executor.
The codicil -- the validity of which is attacked -- purports to have been executed on April 26, 1962. Insofar as presently pertinent,*fn4 this codicil cancels the 19th and 20th paragraphs of the 1959 will and, in substitution thereof, testator in the codicil purports to give the residue of his estate "unto [his] loyal and faithful friend, Myra Parkhurst, to be owned outright and in fee by her", and he also gave her "the power to designate distribution therefrom to and amongst any charitable organizations she may desire and in any amounts she may desire" and he specifically provided "that her conduct in such designation shall not be questioned, nor shall she be required to make any such designation".*fn5
On July 23, 1963, Mosher, "not as executor but as beneficiary under the nineteenth paragraph and as the party having the duty and authority to distribute the bulk of [testator's] estate among Erie charities under the twentieth paragraph of the will",*fn6 appealed from the probate of the codicil to the Orphans' Court of Erie County. The basis of his appeal was two-fold: (a) that testator, -- 86 years old at the time --, was not of sound mind when the codicil was executed and (b) that the ...