39 Pa. Super. 246 | Pa. Super. Ct. | 1909
Opinion by
Henry F. Fett, at his death in October 1900, was the holder of a certificate of deposit of which the following is a copy:
“The Pennsylvania Trust Company
“Reading, Penna., April 10, 1900.
“Henry F. Fett has deposited with this company, Eight hundred fifty dollars, payable April 10, 1901, to himself, on return of this certificate, in current funds, with interest at the rate of three per cent, per annum. The above deposit is not subject to check and is transferable only on the books of the company, on return of this certificate. ■ Interest to cease at maturity.
“D. W. Stehman,
“Treasurer.”
This certificate was not inventoried as part of his estate. When, in April, 1901, the money became due and payable, Margarette Fett, one of his executors, presented the certificate at the office of the trust company, and, having surrendered it, received a new certificate, issued in the name of the company and signed by its assistant treasurer, which reads as follows:
“Reading, Penna., April 10,1901.
“Margaret Fett, one of the executors of Henry F. Fett Estate, has. deposited with this Company, Eight hundred fifty and 00 dollars,,payable April 10, 1902, to herself, on return of
In each of the five succeeding years she surrendered the certificate delivered to her in the preceding year and received a new one, in the same form, except that in one instance the word “her” was used instead of the word “herself.” On the surrender of the certificate issued to Henry F. Fett she endorsed on it, “Mrs. Margarette Fett, one of the executors of Henry F. Fett, deceased,” but on the surrender of all the other certificates excepting one, she simply endorsed them “Margarette Fett.”
The evidence abundantly sustains the court’s finding of fact that at the time of his death Henry F. Fett was indebted to his wife, Margarette Fett, for the purchase money, $850, which he received upon the sale of her real estate. As one of the executors under his will, she had a right, as against legatees, to appropriate out of the assets sufficient to satisfy the debt due to her. The question is whether she did so. This must be determined as of the date when she surrendered the certificate issued to Henry F. Fett and took a new one payable to herself. If she did not appropriate or assign the fund to herself at that time, there is no warrant for holding that she did so afterwards, and, on the other hand, if she did appropriate or assign the fund to herself at that time, it is quite clear that it did not revert to the estate, by reason of anything that she did afterwards. The form of and the endorsements on the later certificates, in other words, the subsequent dealings between Margarette Fett and the trust company relating to the same fund, are proper for consideration as evidence of their interpretation of the original transaction between them, but they are insufficient to support a finding that any subsequent change in the ownership of the fund was made or intended.
Observe then the nature of the transaction as indicated by the paper itself construed in the light of the situation of the parties and the attendant circumstances, but apart from the testimony of Sarah Frock to which we shall hereafter refer:
The foregoing conclusion is strengthened by the testimony of
No particular form of words is necessary to make a valid assignment of a chose in action: “An equitable assignment is an agreement in the nature of a declaration of trust, which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on valuable, or even good consideration:” Nesmith v. Drum, 8 W. & S. 9. “An assignment of a chose in action or of a fund need not be by any particular form of words or particular form of instrument:” Watson v. Bagaley, 12 Pa. 164. “The form is immaterial, so that there be a clearly expressed intention, of an immediate transfer of the right to the assignee:” Ruple v. Bindley, 91 Pa. 296; East Lewisburg Lumber etc., Co. v. Marsh, 91 Pa. 96; Moeser v. Schneider, 158 Pa. 412. These general principles are illustrated in the above cases as well as in other cases cited by Mr. Bispham in his valuable chapter on the subject: Bispham, Principles of Eq. (7th ed.), sec. 167. Amongst others he cites Lightner’s Appeal, 82 Pa. 301, where it was held that a parol agreement to transfer stock as collateral security, followed by the execution of a power of attorney to transfer the same, amounted to an assignment of. the stock in equity, although the holder of the power of attorney died before he actually transferred the stock. Another pertinent case is Taylor’s Estate, 154 Pa. 183, where it was held that a- check for the whole amount of a deposit in bank will operate as an equitable assignment of the fund if it was intended to have that effect. It will be observed upon a perusal of that case, that it was necessary,
The transaction in question was partly in parol and partly in writing. The parol testimony in this case, as well as in several of the other cases cited, was as to what took place at the very time. It did not contradict anything expressed in the writing, or anything necessarily implied from what was written, but was in perfect harmony with it. If the writing alone does not, certainly the writing construed in the light of the pertinent facts above referred to, and of the acts and declarations of the parties at the time it was executed, fully warrant the conclusion at which the learned judge below arrived.
We have not undertaken to discuss the several assignments
All of the assignments of error are overruled and the decree is affirmed at the costs of the appellant.