Appeal from decree of Orphans' Court of Chester County, Estate No. 176 of 1958, in re estate of Dennis A. Corbett, deceased.
John R. Suria, with him Saul, Ewing, Remick & Saul, for appellants.
Leonard Turner, with him Dallett Hemphill, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell dissents. Dissenting Opinion by Mr. Justice Cohen.
This is an appeal from a decree of the Orphans' Court of Chester County. The testator, Reverend Dennis A. Corbett, died September 7, 1956 leaving a holographic will dated December 22, 1925. Two small pecuniary bequests were followed by the presently contested residuary clause: "All the remainder of my estate, of whatever nature, I give and bequeath to my two sisters, Catherine Corbett, and Julia Corbett, and to my brother, John Corbett -- two parts to each of said sisters, and one part to said brother -- who are instructed as to my charitable wishes." (Emphasis supplied.) At the time this will was executed testator's two sisters and brother named in the residuary clause were living. Another brother, Patrick J. Corbett, had died exactly one year before the date of execution.
All of the specified beneficiaries predeceased the testator, the last of the three having passed away in 1948. Catherine and Julia Corbett died unmarried and without issue; John Corbett was survived by James Corbett, his adopted son,*fn1 the appellee. Patrick J. Corbett, the one brother not mentioned in the residuary clause, was survived by two daughters, Mae K. Corbett and Margaret P. Suria, the appellants. The sole issue presented by this appeal is the proper distribution of the residue of decedent's estate. The auditing judge
awarded the entire residue to James Corbett. However, the appellants insist that an intestacy should have been declared and that they are therefore each entitled to one-third of decedent's residual property with the remaining third given to appellee.
Appellants advance, albeit somewhat tentatively, the suggestion that the phrase "who are instructed as to my charitable wishes" evidences an intention of testator to create a testamentary trust. If such is the case, they argue, the property bequeathed in the residuary clause must pass by intestacy because the trust is incapable of effectuation. We hold, however, that the quoted phrase does not create a trust and, in fact, is not even indicative of an intent to create one.
We begin with the proposition that the word "wish" (or, in this case, "wishes") is generally classified as precatory. Calder's Estate, 343 Pa. 30, 21 A.2d 907 (1941). However, such a word may be mandatory when expressive of an intention of the testator to be carried out without the intervention of another's will and when used "in direct reference to the estate." Id. at 37, 21 A.2d at 911.*fn2 Stinson's Estate (No. 1), 232 Pa. 218, 221, 81 Atl. 207, 208 (1911), perhaps the leading case in this area, enunciates this rule: "[ W]hen precatory words are used merely for the purpose of advising or influencing, or as expressive of a wish or desire that the legatee . . . make a certain use of the testator's bounty, they are not obligatory upon Page 58} those to whom they are addressed ; but when used to express his manifest intention to control or direct, they are mandatory, and will be so construed in saying what effect is to be given to them: [Citations omitted] . . ."
That the phrase employed in Rev. Corbett's residuary clause falls within the italicized Stinson language and is thus completely precatory is amply illustrated by Herskovitz's Estate No. 1, 81 Pa. Superior Ct. 379 (1923). After leaving his estate to his wife, Dr. Herskovitz directed that she "must . . . comply with my last requests, which is [sic] as follows: . . ." Then followed a series of pecuniary gifts to various charities. Testator, in an attempt to insure that his requests were honored, added: "I hereby hope, wish and demand that every point of my last will shall be wholly fulfilled by my lawful wedded wife to a T." The Superior Court held that the quoted directions and demands were precatory and not sufficient to create a charitable trust. ...