Donald W. Grieshober, Blackmore & Grieshober, Erie, for appellant.
John W. English, Wendell R. Good, Erie, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a dissenting opinion in which Eagen, J., joins.
On October 31, 1957, twenty-four days prior to her death, Leona E. Cavill executed her last will and testament.
In an audit statement, filed pursuant to the first and final account, decedent's executrix requested a hearing on the applicability of section 7(1) of the Wills Act of 1947*fn1 to the final dispositive paragraph of the will. That paragraph directs that the residue of decedent's estate be divided among five named charitable organizations.*fn2 A supplemental account showing $100,750.97 in the estate was filed in 1972, and the account was called for audit.*fn3
The orphans' court held that the residuary estate should be distributed to the five charitable organizations named in the will. Cavill Estate, 56 Erie County Legal J. 44 (Pa.O.C.1973). Decedent's intestate heirs have appealed.*fn4 We affirm.
Although statutory provisions substantially identical to section 7(1) have been in effect in Pennsylvania since 1855,*fn5 this Court has never passed on the constitutionality of this so-called "Mortmain statute."*fn6 A three-pronged constitutional attack is now before us. En route to its holding, the orphans' court concluded that by invalidating all charitable or religious gifts included in a will executed within thirty days of death, section 7(1) violates the due process, privileges and immunities, and equal protection clauses of the Fourteenth Amendment. Id. at 46-47. We need consider only one of these grounds; we conclude that section 7(1) denies the charitable beneficiaries equal protection of the laws.*fn7
The raison d'etre of Mortmain statutes has been variously described.
"The motive behind these acts is not hostility to charity, but rather a desire to prevent imposition upon the donor and to protect his family against unwise generosity. The statutes are intended to require gifts to charity to be made with proper deliberation and at a time when the donor is in at least reasonably competent physical condition. They seek to hold for the near relatives of the donor a fair share of his estate, as against the claims of charity."
G. Bogert, The Law of Trusts and Trustees § 326, at 683 (2d ed. 1964). See also 4 A. Scott, The Law of Trusts § 362.4, at 2821 (3d ed.1967).
"The basic purpose of the 30 day requirement was and is to prevent a testator during his last illness from being importuned or otherwise influenced, by hope of reward or fear of punishment in the hereafter, to leave his estate in whole or in part to charity or to church."
McGuigen Estate, 388 Pa. 475, 478, 131 A.2d 124, 126 (1957) (Bell, J.) (dictum); see Paxson's Estate, 221 Pa. ...