# Baum Estate > Supreme Court of Pennsylvania · June 30, 1965 · 418 Pa. 404 URL: https://www.frixlaw.com/law-library/cases/9752184 ## Case - **Full name:** Baum Estate - **Court:** Supreme Court of Pennsylvania - **Decided:** June 30, 1965 - **Citations:** 418 Pa. 404; 211 A.2d 521; 1965 Pa. LEXIS 616 - **Precedential status:** Published - **Opinion:** Dissent by Bell - **Judges:** Eobeets, Bell, Musmanno, Jones, Cohen, Eagen, O'Brien, Boberts - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752184 ## How later opinions describe it (automated extraction) - recognizing what is or is not “original” may vary according to situation ## Opinion text Dissenting Opinion by Mr. Chief Justice Bell: The Commonwealth appeals from a Decree of the Orphans’ Court which dismissed exceptions to an adjudication which had awarded Mrs. Baum’s residuary estate to her charitable legatees. Mrs. Baum left a last will dated April 23, 1958; unfortunately she died on May 2, 1958, less than thirty *413 days after signing her will. In her 1958 will, testatrix, who had no heirs or next of kin, expressly revoked all prior wills and after a few legacies to friends,, left her residuary estate to three charities, Zem Zem Hospital for Crippled Children, Erie County Crippled Children’s Society and Humane Society of Erie, in equal shares. The Commonwealth contends (a) that because testatrix died within thirty days of the execution of her will, the residuary gifts to charities are invalid under Section 7(1) of the Wills Act of April 24, 1947, P. L. 89, 20 P.S. §180.7(1) ; (b) that an intestacy occurred with respect to all the residuary charitable gifts; and (c) that under Section 3(6) of the Intestate Act of April 24, 1947, P. L. 80, as amended, 20 P.S. §1.3(6), the Commonwealth is entitled to the entire residuary estate. Section 7(1) of the Wills Act of 1947, supra, pertinently provides: “Any bequest or devise for religious or charitable purposes included in a will or codicil executed within thirty days * of the death of the testator shall be invalid [1] unless all who would benefit by its invalidity agree that it shall be valid. [Or 2] . . . Unless the testator directs otherwise, if such a will or codicil shall revoke or supersede a prior will or codicil executed at least thirty days before the testator’s death, and not theretofore revoked or superseded and [3] the original of which can be produced in legible condition, and [4] if each instrument shall contain an identical gift for substantially the same religious or charitable purpose, the gift in the later will or codicil shall be valid; . . .” Section 3(6) of the Intestate Act of 1947, supra, provides that if there is no surviving spouse, “the entire estate . . . shall descend in the following order: . . . *414 (6) Commonwealth. In default of all persons herein-before described, then to the Commonwealth of Pennsylvania.” The charitable legatees, in an effort to come within one of the exceptions set forth in Section 7(1) of the Wills Act, produced (1) an attorney, Herbert J. Johnson, Jr., and (2) an incomplete copy of Mrs. Baum’s prior 1955 will, the original of which had been destroyed at her direction. Johnson testified that this unsigned and unwitnessed copy was his office copy of her original 1955 will; that he had retained this carbon copy in his files; that it was made at the same time as the original, by the same typewriter and with the same impressions as her executed original will; that he remembers witnessing it but does not remember who the other witness was, although it was someone in his office. The majority overlooks Johnson’s own testimony: “What I have been referring to is a typewritten copy of the 1955 will which was made at the same time the original [1955] will was typed.” Unlike Mrs. Baum’s original 1955 will, this typewritten copy, we repeat, did not contain her signature nor the signature of either subscribing witness, and the name of the other subscribing witness was not even known. Johnson then testified that Mrs. Baum sent for him on April 23, 1958, while she was in the hospital, and told him to bring with him her 1955 will. When he interviewed her in the hospital, she told him the (few) changes she wished to make. He immediately returned to his office and drew her new will dated April 23, 1958. The same day he returned to the hospital and he and a nurse witnessed Mrs. Baum’s signature to her new will which contained, inter alia, an express revocation of all prior wills. Johnson further testified that after the testatrix had executed her will of April 23, 1958, she instructed *415 him to destroy her original 1955 will and he then did so in her presence. Section 5(3) of the Wills Act of 1947 pertinently provides that such destruction of her original 1955 ■will would of itself constitute a revocation. See also, Gray Will, 365 Pa. 411, 416 , 76 A. 2d 169 . Naturally, I would like to do as the majority does, namely, sustain Mrs. Baum’s charitable gifts, but the Court has no right to ignore or distort or rewrite the clear language of the pertinent Act of the Legislature. Mrs. Baum’s original will was physically destroyed by her direction. How can it be resurrected by what is obviously and beyond any doubt an incomplete, unsigned copy? The 1947 Wills Act provides in plain, unambiguous and unequivocal language not that a gift to charity made within thirty days of death shall be absolutely invalid, but that a religious or charitable gift in such a will “shall be invalid” unless it falls within one of the exceptions clearly enumerated and delineated in the statute. Such a last minute charitable gift can be saved only if (pertinently) a prior validly executed and theretofore unrevohed original will is produced in legible condition, and such validly executed and unrevoked original will contains a substantially identical charitable gift. Mrs. Baum’s original 1955 will was intentionally destroyed in her presence, by her direction. It follows, as surely as the night the day, that an unsigned and incomplete copy of her 1955 will, the original of which had been destroyed at her direction, was not and could not be her “original * will” — indeed, it could not be her will at all, since it was unsigned by her. *416 The majority attempts to justify its decision by relying on what it believes was the underlying reason for the change in the Wills Act of 1947. We can agree that the underlying reason for a change in the law was to ameliorate the harsh and inflexible provisions of Section 6 of the 1917 Wills Act. However, the Legislature, in Section 7(1) of the Wills Act of 1947, clearly specified and delineated, in unambiguous and unequivocal language, the only ways by which such amelioration could be effected. The Court cannot ignore this plain legislative mandate. Although the 1947 Wills Act is remedial and must be liberally construed whenever reasonably possible (McGuigen Estate, 388 Pa. 475 , 131 A. 2d 124 ), the law has been long and well established that “When the words of a law are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Section 51, of the Statutory Construction Act of May 28, 1937, P. L. 1019, 46 P.S. §551; Symons v. National Electric Products, Inc., 414 Pa. 505 , 200 A. 2d 871 . Once a State Court starts to ignore or alter or rewrite or make exceptions to clear, unequivocal and unambiguous provisions of the Wills Act, in order to produce what the Court believes to be a fair and wise solution of the issues in a particular will case, the Wills Act will become a meaningless (although well intentioned) scrap of paper, and the door will be opened wide to countless fraudulent claims which the Act successfully bars. Pavlinko Will, 394 Pa. 564, 571 , 148 A. 2d 528 . To summarize: Not even a distorted, tortured Procrustean stretch of the English language can make this unsigned and incomplete copy of a will, “the original will”, or even a will at all * The result is that testa *417 trix’s attempted gift of her residuary estate to the charities fails, an intestacy results, and said estate descends to the Commonwealth. I would reverse the Decree, and direct that all costs be paid out of the residuary estate. Mr. Justice Cohen joins in this dissenting opinion. Italics throughout, ours. The cases cited in the majority Opinion on various interpretations of the word “original” have no application to wills, and are clearly inapposite. A written instrument, to be a will, must be signed by tbe testator at tbe end thereof. Section 2 of tbe Wills Act of April *417 24, 1947, P. L. 89, supra (with certain exceptions not here relevant) . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752184. Public record. Not legal advice.