The statement of claim alleges that Joseph Adamchick died testate on or about July 13, 1927; that letters of administration cum testamento annexo were duly granted on Feb. 13, 1928, to the plaintiff; that Joseph Adamchick, at the time of his death, was a depositor in said St. Clair State Bank, one of the defendants; that his account in said bank is entered and designated as “George Klemr for Joseph Adamchick;” that on the date of the death of Adamchick there was a balance of $3988.67 in said bank in his account; that the plaintiff has made demand upon George Klemr and the St. Clair State Bank for payment to it of the said sum of $3988.67, and that payment has been refused. The suit is against George Klemr and the St. Clair State Bank to recover the said sum of $3988.67. Affidavits of defense were filed by both George Klemr and the bank. At the argument, counsel for the bank stated that it was merely in the position of a
We are not convinced that the affidavits of defense are vague, indefinite and evasive. The affidavit of defense filed by the bank alleges that Joseph Adamchick did not maintain an account as a depositor in his own right, and that the amount on deposit at the time of Adamchick’s death was a fund which was given by Adamchick to Klemr and was deposited in the name of George Klemr for Joseph Adamchick at the express direction of Joseph Adamr chick and George Klemr. The deposit, it is alleged, was in the nature of a trust. The bank could not be expected to know the specific and particular details of the arrangement between Adamchick and Klemr, and the defense made by the bank is sufficiently definite. The details of the parol trust relied upon by both defendants to defeat the plaintiff’s claim may be gathered from the affidavit of defense filed by George Klemr. In our opinion, this affidavit of defense sets out the alleged trust in sufficient detail. Consequently, the first two reasons assigned in support of the rule for judgment must fall.
This brings us to a consideration of the real question in the case. The plaintiff contends that the mere fact that the account was carried in the name “George Klemr for Joseph Adamchick” shows that the fund belonged to Joseph Adamchick. We are unable to agree with this contention. The credit on the books of the bank is prima facie evidence of ownership: First National
The plaintiff further contends that the trust set up by George Klemr is an attempted testamentary disposition of the property of Joseph Adamchick, because it is not to take effect until after Adamchick’s death; that were it in writing, it would be a will, but being in parol, it is not a will and has no legal effect whatever. On the other hand, the defendants contend that this is a valid parol trust; that control of the property passed out of Joseph Adam-chick; that it is not an attempted testamentary disposition of his property; and that the fund in question belongs to the trustee and not to the administrator.
There is no doubt that trusts of personal property may be created by parol: Murphy v. Hubert,
That Adamchick might have revoked the trust during his lifetime, or that he might have reserved the income from the fund for himself for life, or that his creation of the trust deprived his widow and children of an interest in the fund, are all immaterial. “A power of revocation is perfectly consistent with the creation of a valid trust. If this right is never exercised according
The only remaining question for consideration is whether or not the alleged trust is an attempted testamentary disposition of the decedent’s property. The plaintiff, in support of its contention that this is an attempted testamentary disposition, relies upon Turner v. Scott,
The mere fact that a writing or a parol trust is to become effective only after the death of a party is not sufficient to give it a testamentary character: Eisenlohr’s Estate, supra; Mattocks v. Brown,
The rule for judgment for want of sufficient affidavits of defense is discharged.
From M. M. Burke, Shenandoah, Pa.
