| Pa. | Feb 15, 1886
Opinion by
Had Walter C. Madeira executed an assignment of the policy in question to his wife, the appellee, there could have been little, if any, doubt as to her right to the proceeds, though the delivery of that assignment had been evidenced by nothing more than its deposit in a box or other receptacle common to the use of both husband.and wife. But, says Mr. Justice Siiarswood in Bond v. Bunting, 78 Pa. 210" court="Pa." date_filed="1875-05-10" href="https://app.midpage.ai/document/bond-v-bunting-6234994?utm_source=webapp" opinion_id="6234994">78 Pa. 210: “Is not a gift an assignment, perfected by a delivery which debars the donor from revocation ?” Undoubtedly it is, and this doctrine is recognized in Re Gray, 1 Pa. St. 327.
It is, however, hardly necessary to refer to authorities in support of a principle now so well established. The difference will be found solely in the method of proof; in all other particulars an assignment without valuable consideration and a gift are alike. The legal requisition is that the intention of the donor be established by clear and precise evidence, and that the delivery be secundum subjectam materiam. Now, that Walter C- Madeira, in taking the policy on his own life, intended it exclusively for the benefit and use of his wife, cannot, if we adhere to the evidence, be very well doubted. He desired in the first instance, and before their marriage, to have it drawn to her use, but she, from feelings of delicacy, requested him not to do so. Not the less, however, did he design a gift of this policy to her; his declarations to this effect are clear and positive, and made, not only at and about the time he insured, but they were repeated frequently up to within a day or two of his death.
Certainly, this delivery was quite as complete as that in the ease of Crawford’s Appeal, 61 Pa. 52" court="Pa." date_filed="1869-02-05" href="https://app.midpage.ai/document/crawfords-appeal-6233479?utm_source=webapp" opinion_id="6233479">61 Pa. 52, 100 Am. Dec. 609, where a husband directed a clerk to enter on his books a credit to his wife in the sum of $3,000, and annually added the interest thereto until his death. There was in this case no delivery which was good for anything, either as against the husband or his creditors, yet, as against volunteers, it was held to raise a valid trust in favor of the wife. We would, indeed, regard it as a very ungracious task were we compelled to take the gift of a kind though perhaps careless husband to his confiding wife and transfer it to those for whom he never intended it. It is true, we would do so did the law and facts of the case so determine; and so, doubtless, would the court below have done under like circumstances; but as the matter now stands, as facts and law are with the appellee, we aré rather pleased to affirm the decree of the orphans’ court.
The appeal is dismissed and the decree affirmed, at the costs of the appellants.