The opinion of the court was delivered, February 28th 1869, by
Agnew, J.
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, *55Id. 534. Where the gift is not executed by delivery but the determining act remains in fieri, the law gives no force to the mere intention to do it. But in this case are not the facts sufficient to show an executed intention followed by a trust ? The transaction was between husband and wife, and therefore influenced by their peculiar relation, with no one now to contest it but mere volunteers, who stand equally affected by the act as the husband himself under whom they claim to take. The entry of May 9th 1864 was a credit in the cash book of the husband of $3000, cash received. The receipt thus entered is an acknowledgment of cash paid, as much as a receipt in form to Mrs. Crawford would be. It imports a past act, not a future promise. This made out a primá facie case, and so conscious of it were the opposite parties, that to escape its effect they called her as a witness. She stated that her husband had purchased a house and told her he would have the deed made to her, but she replied that she did not want the trouble of a house. Sometime afterward he came in and said to her — -“I have added $3000 to your little money, and after awhile I am going to give you $3000 more.” He did not hand her the money then or at any time. But we find the money credited as if actually received, carried into an account of moneys admitted to belong to her, mingled with it, interest credited upon it, finally consolidated in the account and interest added on the total sum. This is certainly ample evidence of an executed gift followed by an express trust in the form of an account for it and its accrued interest; remaining unrevoked or denied by the decedent up to the time of his death. It cannot be doubted then, that Crawford intended to fasten upon himself and his estate an admitted gift and to become a trustee of the fund. Who are they that say his admission and declared trust shall be avoided because there was no formal handing over and handing back of the money ? Mere volunteers — persons who are bound by his acts ? What greater right have they to impeach his solemn admission of the receipt, and the acknowledged trust exhibited by his book, than a voluntary assignee has to deny the act of his assignor ? In Rogers v. Fales, 5 Barr 158, it was held that a voluntary assignee does not represent creditors, and cannot question the conduct of his principal in permitting his wife to appropriate articles of ornament and furniture. Then it is clear that the burden of proof is thrown on these volunteers to lift the trust from the estate, and how do they propose to prove this ? Not by disproof of the full intention to give, or of the intention to treat the gift as executed, or the intention to hold as trustee of the fund — not by disproof of the entries on the books, or of a counter charge or a withdrawal of the credit, or indeed of anything to prove an alteration of the mind of the husband, but merely to prove there was no formal passing of the money between them.
*56But this was a useless ceremony between husband and wife where there is a clear executed intention to become the trustee of the fund for her benefit. In order to make such a formality effective, a witness must be called to see him hand the money to her and straightway receive it back. But of what greater efficacy would this be than the husband’s own admission in his book and his express direction to his book-keeper ? The difference is clearly one of the merest form and not of substance. Lex non prcecipii inutilia; quia inutilis labor stultus. Of what possible use can it be to go through a mere ceremony where the evident intent is to assume immediate possession as a trustee ? I cannot see that the facts of this transaction have less force, when properly viewed, than those in Herr’s Appeal, 5 W. & S. 494. There the subject of the gift was money unaccompanied with any declaration amounting to a trust. There money was kept in a lower or false bottom of a trunk to which the husband had access at all times, and. to which he often went without the presence of his wife. The money continued just as much within his actual dominion as if it had been kept by him in another place. There was no evidence of actual delivery or passing over of the money, as the gift was inferred from the declarations of the husband that the money was his wife’s, his keeping it in the lower division of the trunk, apart from his other money, his adding to it from time to time and taking none away, and his wife’s carrying the keys. There was no formal delivery, no counting of the money, no specific sum stated by him; indeed the sum was not known except as a probable or supposed amount, so that the case in fact rested directly on the declarations of the husband, and the setting aside that much money apart from his own; while his actual access and control over it, and the legal unity of person, made the possession as much his own as his wife’s. On this point see Larkin v. Mullin, 13 Wright 34.
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 *57according to law.” Without a payment of the debt the gift would be fruitless. Here the husband treated the money as passed between him and his wife, as the uncle did the bag of money, and as Herr did the money in the trunk, though in fact it had not formally passed; and he then declared a trust of it by entering it on his book to his wife’s credit in an account of other moneys he had of hers. Thenceforth it became a trust, and must be so treated. It is this trust which these volunteers must disprove, and not the want of a mere formality dispensed with by the parties in its origin. Herein is the distinction overlooked by the learned auditor whose report the court confirmed. It is not the case of a promise, or a chose in action, but of an acknowledged receipt and a trust.
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.