Orphans' Court of Lancaster County

Estate of Emanuel Eby, dec'd (No. 2).

Trust for care of grave-Charitable use-Act of May 26, 1891, P. L.

119.

A bequest in trust to use the income for the care of a cemetery lot is a charitable bequest under the Act of May 26, 1891, and is void where the testator died less than thirty days after making his will.

Charles E. Workman, for exceptions.

Wm. M. Hollowbush and Wm. C. Rehm, contra.

December 9, 1920. Opinion by SMITH, P. J.

In the decree of distribution the "Union Church," to which the testator bequeathed two hundred dollars in trust to use the interest accruing therefrom to keep "in good and presentable order" a family plot "in the cemetery adjoining and belonging thereto," was not included amongst the legatees because the "Union Church" had not been identified. [See ante, page 278.] Its existence having since been established by testimony and the cemetery located, the question now arises as to the validity of the bequest, because of the death of the testator in less than thirty days after he had made his will, the date of which is October 29, 1919. His death occurred on the following 23d day of November. The sixth section of the Wills Act of 1917, P. L. 403, declares that, "all dispositions of property" by a testator "for religious or charitable uses. . . shall be void" if the will had not been made "at least thirty days before" the testator's decease. While this Act specifically repeals the Acts of April 26, 1855, P. L. 332, and June 7, 1911, P. L. 702, it at the same time re-enacts the substance of them, differing only in that "at least thirty days" is fixed as the shortest period a will shall have existed before the death of the testator to make a disposition of property by it for "religious or charitable uses " valid instead of a "calendar month" as the Acts of 1855 and 1911 provided.

The Act of May 9, 1889, P. L. 173, protects property disposed of for a "charitable use " from the consequences of a gift in perpetuity.

The Act of 1891, P. L. 119, declares that no property disposed of for graveyard purposes "shall fail by reason of such disposition having been made in perpetuity, but said disposition shall be held to be made for a charitable use."

The Wills Act, as has been seen, says that "all dispositions of property" by will for a charitable use "shall be void" unless the will had been made "at least thirty days before the decease of the testator." Whether a bequest for the care of graves made less than thirty days, or a calendar month, before the death of the testator is or is not VOL. XXXVII, No. 60

Estate of Emanuel Eby, dec'd (No. 2).

void seems never to have been authoritatively decided. The question was not raised in Provident Life & Trust Company's Appeal, 249 Pa. 389; but the lower Court said: Notwithstanding the fact that the Act of May 26, 1891, P. L. 119, declares that a gift for the maintenance of a cemetery lot shall be held to be made for a charitable use,' the auditing judge interprets that Act as contemplating only the validity of such a trust because of its being in perpetuity-otherwise any bequest for the care of a cemetery lot would be void if not executed in accordance with the provisions of the Acts of 1855 and 1911." Of course it would be void, and why should it not be so pronounced? Why the suppliant "otherwise"? Was it felt that it would be calamitous if such a charitable use trust should be held to be subject to the provisions of the Acts of 1855 and 1911, as are all other and more deserving trusts for charitable uses? It would have been more fitting, it seems to us, to have said anywise instead of otherwise. While the inherent quality of such a bequest is repugnant to the idea of charity, nevertheless it must be remembered that abstract charity is not under consideration, but charitable uses, and that the Act of 1891 has vested property disposed of in trust for the care of graves with attributes coextensive with a charitable use and thereby has co-ordinated it with charity. Grant that the Act of 1891 contemplates "only the validity of such a trust because of it being in perpetuity." That validity is in being, it became, only by the Act contemplating the trust as having been held for a charitable use; and we hold that the trust under consideration was made for a charitable use.

There can be no doubt that something more was contemplated by the Act than to exempt trusts for cemetery purposes from the interdict of a gift in perpetuity, for otherwise never to it would have been added the concluding words-" but said disposition shall be held to be made for a charitable use." Without this condition it would have been a finished and effective release of such a trust from the prohibition. It would have been complete: "That no disposition of property hereafter made for the maintenance or care of any cemetery, churchyard or other place for the burial of the dead, or of any portion thereof, or grave therein, or monuments or other erections on or about the same, shall fail by reason of such disposition having been made in perpetuity." This is a declarative sentence with a self-evident meaning, which would have required no interpretation, nor would the trust thereby contemplated have been even remotely associated with the Acts of 1855 and 1911. Why was the Act fettered with the condition, if not that the trust should be made subject to the provisions of these Acts? It would be a sad commentary upon legislative foresight and wisdom to predicate of them a statute which may be shifted by blowing hot and cold with the same breath, permitting a disposition of property to be declared to be for a charitable use to frustrate the ban of perpetuity and to be declared not to be for a charitable use to remove the statutory thirty days' limitation obstacle.

The design of the Wills Act is to prevent "improvident dispositions" of property by one approaching death, when one may involun

Estate of Emanuel Eby, dec'd (No. 2).

tarily succumb not only to suggestion or pressure but as well to an illusory emotion. Such, at least, is a plausible reason for the condition imposed; and the Wills Act should be remorselessly applied.

No doubt those representing the Union Church conscientiously think that this is the kind of a case where judicial fortitude should be tempered by sentiment. It will not be denied that such cases are to be found. Attention has been called to those whereby the cost of tombstones was held to be a part of the funeral expenses. Nearly a hundred years ago Chief Justice Tilghman in M'Glinsey's Appeal, 14 S. & R. 64, cast the die that settled that question. He rendered the opinion-" I think it should be allowed." It was a pathetic case. M'Glinsey" and wife had no children, and lived together in great harmony." They kept a store which was attended by the wife, and generally called Mrs. M'Glinsey's store." She not only worked and helped to make the business a success, but with money, due her, goods were bought for the store, which enlarged M'Glinsey's estate. He died intestate. She administered his estate. Greedy collateral kin excepted to the credit in her account for the cost of a tombstone, and the Chief Justice, on appeal, sustained the credit in the opinion quoted; but he refused a credit for the cost of a picture which she had had painted of her husband after his death. No doubt the picture was more of a consolation to the bereaved widow than the tombstone, but it was not of the atmosphere of the graveyard. If it had been placed in the vault over which the "handsome tombstone was erected" its cost would seem about as consistent a funeral expense as that for a tombstone, unless public display is an indispensable condition. Mr. Justice Green, in Webb's Estate, 165 Pa. 330, thought it "rather surprising" that there should be any doubt as to the law governing the status of the cost of tombstones in the light of M'Glinsey's Appeal, and Porter's Estate, 77 Pa. 43, where the Court's opinion was that it is a legitimate item

of credit."

The late Judge Ashman, in Middleton's Estate, 13 D. R. 811, after cataloguing the cost of a burial lot and a tombstone as funeral expenses, adds, "The continued care of a grave, however, is almost as essential as its purchase, and without undue straining of language may be said to belong to the original expenses."

In Wareham's Estate, 26 D. R. 827, it was held that the Act of 1855 did not apply to trusts for the care of graves. The distinguished judge said: "The very question raised by the exceptions was passed upon by this court (and favorably to the contention of the exceptant) in Sock's Estate, 9 Dist. R. 101. . . . In holding, however, that certain legacies for charitable purposes were void, and in granting the review, Judge Penrose had this to say concerning a bequest for upkeep of cemetery lot: The amount which the will directs shall be held in trust for the preservation of the cemetery lot is in no sense a legacy— though the schedule of distribution treats it as such-and is not subject to abatement nor liable to payment of collateral inheritance tax.'" We have no doubt that the question was passed upon in Sock's Estate, but one cannot be certain of it from the report of the case. Sock's

Estate of Emanuel Eby, dec'd (No. 2).

Estate was considered in Long's Estate, 20 LANCASTER LAW REVIEW 161, where it was held that a gift in trust for the care of cemetery lots was subject to collateral inheritance tax, and which was affirmed in 22 Sup. Ct. 370, and which led to the passage of the Act of March 5, 1903, P. L. 12, exempting such "bequests" from the tax. Hypercritically scrutinized through a technical lens it may be a misnomer to call such a gift a legacy, none the less the word legacy is an expression of the thought of the disposition of property, and however the bequest may be named it must import a disposition of property, and "all (such) dispositions of property" contrary to the provisions of the Wills Act "shall be void."

The interpretation of "the auditing judge" in Provident Life & Trust Company's Appeal was approved and followed in Hargrave's Estate, 28 D. R. 44.

The time may not be ripe to show other than a fervent devotion to a mawkish practice which has been looked upon with reverence, but it is not too early to point to the predestined fate of money placed in trust to keep one's grave green. The time will come when not a dollar of the money thus set apart will be used as was intended and when all of it will have been appropriated, not necessarily dishonestly, but in the natural course of events it will have passed into the possession of strangers. In our long experience at law we cannot recall that any trustee of such a fund has ever rendered an account, and the time must come when none will be found to cite one to account; and that there are many such trusts subject to this jurisdiction of which only a fraction of the income is used for the sepulture we have reason to believe.

If never another dollar should thus be set apart, the amount which will have been dissipated, if it had been properly invested, will be tremendous. In the estate of Adam J. Rieker, 32 LANCASTER LAW REVIEW 234, this court refused to award a cemetery company two hundred dollars given by a testator to it in trust to keep in good order a cemetery lot. Expert testimony disclosed that two hundred years probably would elapse before a most unusually substantially erected granite monument would require any attention, and it was demonstrated that two hundred dollars in that time invested at four per cent compound interest will have grown to one million six hundred thousand dollars.

It does not seem to be a wise policy to encourage such trusts. If it is an exhibition of only a small vanity, it is not deserving of applause. It is not to be inferred that the protection and decoration of graves and the erection of tombstones are not looked upon with commendation, but that it is judged more fitting, and that such expressions of love. and respect come with better grace, when they are voluntary acts of members of the family of the dead or of their friends and admirers.

The bequest is void; the exceptions are dismissed and the adjudication is confirmed absolutely.

Court of Common Pleas of Lancaster County-In Equity

Brandt, Admr. of Mentzer v. Hollinger.

Partnership-Dissolution of-Abandonment of partnership - Death of

partner-Receivership—Accounting-Estoppel.

The abandonment of the partnership by a partner effects a dissolution of a partnership of indefinite duration without any formal decree dissolving it.

Where both parties are aware of their respective rights, the doctrine of estoppel has no place in law or in equity.

The appointment of receivers are not a matter of right even where partnerships exist but are within the sound discretion of the court and will not be made where no good purpose would be served.

On an action by the administrator of a former partner against the surviving member of the firm asking for dissolution, receivership and accounting, it appeared that nearly two years before his death the plaintiff's decedent had, at the request of his partner, withdrawn from the firm and accepted employment in the business at a salary, his name being dropped from the title of the firm. At this time he had put in less than his partner and drawn out more, and both parties were fully cognizant of the situation. There was no evidence of any settlement having been made between the former partners but the surviving partner assumed the firm obligations and no rights of third parties were involved. The withdrawing partner demanded no accounting and there was no evidence that he was entitled to receive anything.

Held, that the partnership was dissolved by the withdrawal of the plaintiff's decedent, but the request for a receivership and an accounting should be refused.

Bill for dissolution, receivership and accounting. report of referee. Equity Docket, No. 6, page 153.

John M. Groff, for plaintiff.

John A. Coyle, for defendant and exceptions.

Exceptions to

The referee, O. S. Schaeffer, after finding the acts as hereinafter referred to, continued his report as follows:

CONCLUSIONS OF LAW. The facts in this case are somewhat meagre. One of the partners died and the surviving partner accordingly did not testify. The partnership agreement entered into in 1884 was verbal and the alleged dissolution was verbal. The rights of third parties are not involved in this proceeding. It is admitted that a partnership existed between Jacob F. Mentzer and the defendant from 1884 to about November 1, 1913. At the latter time, the partnership name was changed, the outstanding notes or obligations of the partnership were changed and the relation of Jacob F. Mentzer to the partnership was such as to be inconsistent with his continuance as a partner.

The referee finds that there was a dissolution of the partnership existing between Mentzer and Hollinger on or about November 1, 1913. There was no definite term of the partnership and therefore it was a partnership at will. Any member of an ordinary partnership, the duration of which is indefinite, may dissolve it at any moment he pleases, and the partnership will then be deemed to continue only so far as may

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