Kelley's Estate , 1905 Pa. Super. LEXIS 272 ( 1905 )

Opinion by

Smith, J.,

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 association named, no copy of the instrument creating such insurance is contained in the paper-book of either party. In the appellant’s history of the case, this instrument is described as a “ certificate of insurance.” The appellee’s petition avers that the money was paid to the beneficiary under the charter and by-laws of the association, and no denial of this appears in either the record or the appellant’s argument. But neither the charter or by-laws are printed in either paper-book, nor was either, or the certificate of insurance, offered in evidence. Hence it is impossible to determine, from the record, the character of the testator’s dominion over.the so-called insurance, or the extent to which it is to be deemed part of his estate. Apparently, the association was, in its nature, a fraternal order, with the disposition of its insurance fund fixed by its charter and by-laws, and not governed by the principles regulating ordinary insurance. Prima facie, the beneficiary was, in that character, entitled to the money; and a parol trust for its distribution was entirely lawful. This trust, so far as it relates to charities or religious uses, was created more than ten years before the testator’s death, and was never revoked. The force of the directions from which it arose was not affected, by their repetition in connection with the instructions given for the last will within a calendar month preceding the testator’s death. Those directions were entirely independent of both wills, and nothing was added to or taken from them by the reference to them in the wills.

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.