Estate of Gaffney, 146 Pa. 49

Estate of Gaffney

146 Pa. 49 | Pennsylvania Orphans' Court, Cambria County | 1892

Opinion,

Mb. Chief Justice Paxson :

The only assignment of error is that the court below erred in confirming the report of the auditor. This general specification gives us no information, and does not conform to the Rules of Court. We might well affirm the decree for this reason, but this would do injustice, and we will not punish the appellant for the neglect of her counsel.

We learn from the record that one of the exceptions to the report of the auditor was “ that the auditor erred in disallowing the claim of five hundred sixty dollars, which was deposited in trust for said Polly McKim by said Hugh Gaffney.” The auditor dismisses this claim in the following summary manner:

“ And, as to the claim to the sum of money in the Johnstown Savings Bank, the auditor finds that that money, while deposited as “ Hugh Gaffney, trustee,” is funds of the estate of Hugh Gaffney, and has been paid over to that estate; there being no evidence showing a donation of that money to Polly McKim, and, as matter of law, if the money belongs to Polly McKim, the Johnstown Savings Bank is the responsible party to the administrator of Polly McKim.”

It does not follow that because the bank may have made a mistake and paid the money to the wrong person, the appellant is to be turned out of court. The law avoids circuity of action. The money is now in the hánds of the executor of Hugh Gaffney; and if it really belongs to the estate of Polly McKim, no good reason is apparent why she should proceed against the bank, and compel it to pay the money the second time. An action for money had and received would lie against the Gaffney estate, and, if such action would lie, it may be recovered in this proceeding in the Orphans’ Court.

We think the auditor was clearly in error in finding that the money belongs to the estate of Hugh Gaffney. Granted there was no direct evidence of a gift, there is evidence of a trust. This appears upon the face of the bank book, as well as upon the books of the bank. It was contended that Mr. Gaffney never intended the money should go to Mrs. McKim; that his *54only object in depositing tbe money in her name, or in trust for her, was to increase his deposit in bank over the limit of two thousand dollar’s. But of this there was not a word of reliable testimony, and we think the case is ruled by Smith’s Est., 144 Pa. 428, decided at the present term. In that case, the testator had purchased certain railroad bonds, and placed them in an envelope, on which he had signed a declaration that he held them for his nephew. The bonds remained in his possession until after his death, with this indorsement upon the envelope, and we held under all the facts that the nephew was entitled to them. In the case in hand,' Hugh Gaffney made this deposit in his name as trustee for Polly McKim, and the deposit so stood at the time of his death. An argument was based upon the allegation that he had never delivered the deposit book to Polly McKim. This, however, was not necessary, as it would have been in the case of a gift inter sese. The book was found in her possession after Gaffney’s death, and, the executor of Gaffney insisting upon its surrender, it was given up; and there is evidence that she surrendered it only when threatened with legal proceedings, and a visit from the sheriff.

We have, then, the case of a deposit on the books of the bank of a sum of money in the name of Hugh Gaffney, trustee for Polly McKim. This makes out at least a prima-facie case for the appellant. Upon the face of the bank book, the money belonged to Polly McKim, and there is not sufficient upon the record to rebut this presumption. This money should have been awarded to the appellant.

The claim of six hundred dollars for the care, support, and maintenance of Hugh Gaffney from January 1, 1888, to August 21, 1888, is not sustained. The auditor found that for these services Polly McKim had been paid in full, and we have no reason to doubt the correctness of his finding.

The decree is reversed as to the claim of five hundred sixty dollars, and it is ordered that the executor of Hugh Gaffney pay the said amount to the appellant; in all other respects the decree is affirmed, the costs to be paid by appellee.