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decided: May 13, 1975.



Frank Townend, Wilkes-Barre, Frank Townend, Silverblatt & Townend, for appellant.

Albert H. Aston, Aston, Fine, McHugh, Caverly, Wetzel & Geist, Wilkes-Barre, for appellee, Benjamin Musser.

Arthur L. Piccone, for appellee, Estate of Nancy Musser Harper.

O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Eagen, J., did not participate in the consideration or decision of this case. Nix, J., filed a dissenting opinion in which Manderino, J., joined.

Author: Roberts

[ 462 Pa. Page 160]


The will of Elizabeth Laning bequeathed her entire estate to a trustee, directing that the income be paid to her adopted daughter, Helen Laning Musser, for life and the corpus then distributed to "such of the lineal heirs of my daughter . . . as there are, at the time the youngest arrives at the age of twenty-one years, members in good standing of the Presbyterian Church." In the absence of qualifying grandchildren, the corpus was to pass to appellant Home for Homeless Women. After the death of the life tenant the trustee filed a final account and sought directions as to the distribution of the trust estate.

Appellees, the children of Helen Laning Musser,*fn1 although admitting that they are not and never have been members of the Presbyterian Church claim the estate on the ground that the condition of membership is unenforceable. Appellant maintains that the condition is valid and precludes appellees from receiving any interest in the trust corpus. The orphans' court concluded that the condition of membership is unforceable both because it is

[ 462 Pa. Page 161]

    contrary to the public policy of Pennsylvania and because the Fourteenth Amendment forbids any state to give effect to such a condition. This appeal followed.*fn2 We reverse.

Because the claim that the condition is contrary to public policy, if resolved in favor of appellees, would obviate the need to resolve the constitutional question, that claim must be considered first. In support of the contention that the condition is contrary to public policy, appellees cite Drace v. Klinedinst, 275 Pa. 266, 118 A. 907 (1922), and Devlin's Trust Estate, 284 Pa. 11, 130 A. 238 (1925). However, these cases are distinguishable.

In Drace, the testator devised certain land to his son for life and thereafter to his son's children "provided they remained faithful to a particular religion; and in case any of them forsook this religion, 'then and in that case, to the remaining children who remain true' to this religion." 275 Pa. at 267, 118 A. at 908. The children "remained faithful" until some time after the death of their father, but then left that church and joined another. When they sought to convey the property, the purchaser questioned the marketability of the title, fearing that breach of the religious condition might have divested the children of title. This Court held that 1) the language of the will was not sufficient to render defeasible the estate devised and 2) even if the language would otherwise create a defeasible estate, the enforcement of the forfeiture would be contrary to the public policy of this Commonwealth.

In our view, the key to the Drace holding is the fact that the will sought to require the remaindermen to "remain true" to the specified religion. Enforcement of this condition would thus require a determination of the doctrines of that religion and an inquiry as to whether

[ 462 Pa. Page 162]

    the remaindermen had "remained true" to those doctrines. Such questions are clearly improper for a civil court to determine. Indeed, it is apparent from the unanimous decision of the United States Supreme Court in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969), that civil courts are constitutionally forbidden to make such determinations.

In the Presbyterian Church case, the courts of Georgia had undertaken to resolve a dispute over the right to church property by determining whether the denomination had substantially departed from the tenets of faith and practice existing at the time when the congregation had affiliated with the denomination. The Supreme Court unequivocally condemned such intrusion into ecclesiastical affairs by civil courts:

"[T]he departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion -- the interpretation of particular church doctrine and the importance of these doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role."

Id. at 450, 89 S.Ct. at 607.

Not only would the condition in Drace have required improper inquiries into the content of religious doctrine, but the intrusion into the ecclesiastical domain would have been magnified by the need to probe into the beliefs of the remaindermen. In contrast, the bequest involved here requires no inquiry into either doctrine or belief. All that need be ...

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