9 A.2d 342 | Pa. | 1939
Jacob Bearinger on March 2, 1916, with his own funds, opened a savings account in his name at the Dollars Savings Bank in Pittsburgh and thereafter continued to make deposits of his moneys therein until March 4, 1932, at which time there was to his credit in the account the sum of $10,078.30. On this latter date, Bearinger changed the account to read "Jake Bearinger, in trust for Annie F. Bearinger," his sister-in-law; then turned the passbook over to her and she retained custody of it until Bearinger's death on June 20, 1937. On May 22, 1937, while ill in bed, Bearinger sent for a neighbor, one J. Burnett Abraham, and informed him that "he wanted to fix up about some money that he had in the bank," and that he desired to take care of his sister, Elizabeth Henderhen. He also told Abraham that he wanted his debts paid from the fund in the bank and why and how he desired the balance divided. Pursuant to this conversation, Abraham drafted the following letter to Annie F. Bearinger: "Dear Sister: — It is my desire as soon after my death as possible that you pay my funeral expence and Just debts, out of our Joint Bank account, the balance of said account I want devided eaqually between my sister Elizabeth Henrehen, and your self all other personal effects to be eaqually devided as above:". This letter was signed by Bearinger and then given to Abraham, who retained the same until after the death of Bearinger, when it was delivered to Annie F. Bearinger, *255 and a copy given to Elizabeth Henderhen. The letter thus prepared and delivered by Abraham speaks of "our Joint Bank account." Bearinger did not use that designation, but Abraham supposed from his conversation with Bearinger that it was a joint account. Upon the delivery of the letter, a controversy arose as to this money, and a stipulation was entered into whereby it was agreed by the parties in interest that the money would be turned over to the executor of the estate of Bearinger and that the question of ownership of the balance of the fund remaining after the payment of certain debts and administrative expenses would be submitted to the Orphans' Court for determination at the audit of the estate. The Auditing Judge decreed distribution of one-half of such balance to Annie F. Bearinger and the other one-half to Elizabeth Henderhen. After argument, the court en banc entered its final decree dismissing the exceptions of Annie F. Bearinger and affirming the decree of the Auditing Judge. Hence this appeal.
The mere act of a person depositing his funds in his own name in trust for another does not establish an irrevocable trust, but rather a tentative one: Matter of Totten,
Neither is there any merit in the contention of appellant that the words "desire" and "want" as used in the letter of 1937 were merely precatory. While generally such words are so considered, yet when, as here, it obviously appears their use was expressive of the intent of the testator, they are mandatory: Croft v. Chelten Trust Co.,
The learned court below, therefore, properly awarded one-half of the fund to Elizabeth Henderhen and one-half to the appellant.
Decree affirmed, at the cost of appellant. *257