29 Pa. Super. 106 | Pa. Super. Ct. | 1905
Opinion by
The questions presented in the assignment of errors might properly have arisen had the testator, by either will, made a disposition of the money in controversy, and in such case their determination would rest on the established principles governing a trust of the character alleged by the appellee, and illustrated in Hoffner’s Estate, 161 Pa. 331; McAuley’s Estate, 184 Pa. 124; Morrow’s Estate (No. 2), 204 Pa. 484. But his language in relation to this money — substantially identical in the two wills — was in no sense a testamentary disposition of it. Each will contained merely a recital of a fact antedating both, viz.: a disposition of the money already made through private instructions given by the testator to the beneficiary to whom it was payable. Neither will contains any further provision respecting the distribution of this fund, but the matter is left to rest on the directions previously given to the beneficiary ; and both wills dispose only of the residue of the testator’s estate.
While the testator states that he is “ insured ” in the asso
There is nothing in the record to show that the money paid by the association formed part of the testator’s estate, and its inclusion in the administration account was obviously erroneous. Whether the appellee, would have been estopped by the confirmation of the account, without objection, or might have maintained his claim on distribution, and whether the beneficiary might have been required to pay the money in accordance with the parol trust, after including it in his account as executor, we need not now consider On his own petition, he would have been allowed to withdraw the item from the account. It has been withdrawn on petition of a party interested in the parol trust, and there appears no good reason for disturbing this adjudication.
Decree affirmed.