61 Pa. 52 | Pa. | 1869
The opinion of the court was delivered, February 28th 1869, by
The title of the appellant to the $3000, credited to her on her husband’s books, cannot be supported as a debt. A contract by parol, which includes an unsealed writing, needs a consideration to support it: Kennedy’s Ex’rs. v. Ware, 1 Barr 450; Whitehill v. Wilson, 3 Penna. 413; Campbell’s Estate, 7 Barr 100. Nor could it be supported as an ordinary gift between strangers, taking into connection with the books the explanatory proof of the facts. It would have no greater effect than an envelope enclosing securities for debt, endorsed “For Rebecca Gore,” found among the papers of a decedent: Plumstead’s Appeal, 4 S. & R. 545. Or a direction to burn certain notes in favor of a nephew, without delivering them: Campbell’s Estate, 7 Barr 100. Or the endorsement of a single bill that it should be of no effect at the decease of the owner, unsustained by a consideration: Albert’s Ex’r. v. Zeigler’s Ex’r., 5 Casey 50; Raymond v. Middleton,
How in the case before us there was a most distinct setting apart to the wife of a specific sum, stated to his wife as actually done, or- “ added,” as he expressed it, declared expressly to his book-keeper, its receipt solemnly acknowledged by written entry in his book, mingled with her undoubted funds in the account, and increased by accumulated interest on the total sum; the whole constituting an acknowledged gift and a superadded trust. Flowers’s Case, Hoy 67, is also authority for dispensing with a mere formality where the intent of the party is clearly executed. Thus a nephew returned to his uncle 100 pounds in a bag which he had borrowed, and laid it on the table before him. The uncle said— “I will not have it; take it, you, and carry it home with you.” This was held to be a good gift by parol, and consequently a good payment of the debt. It is evidently founded on the maxim stated in Hoy, p. 91: “ The intent of the party shall be taken
It is admitted that a bond or specialty given, which is but a chose in action, would be recoverable, a consideration being imported by the seal. And yet what is this but a difference in form, a merest shadow, a thing made by the flourish of a pen, where a consideration is often actually wanting ? Why, in such a clear case as this, shall n.ot the transaction follow the form of the instrument which denotes an act done, not a contract to do it ? The intention to be bound for the receipt and care of the money is not less evident than if the instrument were a bond. That a trust differs essentially from a contract, and will be enforced when the latter cannot, is established by authority: Jones v. Lock, Law Rep. 1 Ch. Ap. 25; Ex parte Pye, 18 Ves. 140; Vance v. Vance, 1 Beav. 605.
We are of opinion, therefore, that the court below erred in confirming the report of the auditor rejecting the claim of Mrs. Crawford to the sum of $3000, and its interest credited on the book of the decedent. The decree of the Orphans’ Court to this extent is reversed, and the record ordered to be remitted with instruction to allow to the appellant the said sum and interest, and to correct the distribution accordingly; and the costs are ordered to be paid out of the estate.