Long's Appeal , 1878 Pa. LEXIS 41 ( 1878 )

Mr. Justice Paxson

delivered the opinion of the court,

The auditor found as a fact that John Murphy, the decedent, did not convert to his own use the sum of $1150, received by him as a part of his wife’s estate; that he held it as trustee for his Avife, invested it in government bonds, as his wife’s money, two or three years prior to his death, and repeatedly recognised his obligation to pay it. The court below reversed this finding of the auditor. Upon a careful examination of the evidence, Ave are by no means sure that he was so clearly wrong that his finding of the facts should have been reversed. It must be conceded that the decedent had the right to convert the money. It was evidently the proceeds of property derived by Mrs. Murphy from her parents, at the time of her marriage with the decedent in 1830. At that time there was no statute protecting the separate estates of married women, and his right of conversion ay as clear. But there Avas evidence, not overwhelming, it is true, but sufficient to go to a jury in a common-law proceeding and to sustain a verdict, that the decedent did not convert, and never intended to convert, the money to his OAYn use. The finding of the auditor upon an issue of fact being like the verdict of a jury, ought not to be set aside because it might have been the other Avay. Unless it ought to have been the other way, and was clearly Avrong, it should - not be disturbed. But if we were to reverse the decree upon this point it AYOuld not help the appellants. Assuming that there had been no conversion, and that the decedent held the $1150 in trust for his wife ; that it was her money, to dispose of as she saw proper, have the appellants any valid claim upon it ? The answer to this question depends upon what Mrs. Murphy did to confer such right. It is very plain that any promise made by the decedent not based upon a valid disposition of the money by his wife, would be without consideration and void. The facts are that in the year 1871, his wife being ill at the time, the decedent, at her express direction, wrote, down on a piece of paper the following words :—

“ Philada., June 22, 1871.

. “ I, Mrs. Martha Murphy i am not in good health i wish to make a devide of what I have past me

to my friends.

My Brother, John Long, $400.

Jane, my sister, 100.

Margaret, my sister, ' 350.

Margaret Jane Brady, 100.

Martha Lodge, 100.

Samuel Collins, 100.

I, John Murphy I will Ancer this Bill in one year after the decease.”

This is all there is in the case to show a disposition of her money by Mrs. Murphy. What is the effect of this paper ? Was it intended as a present irrevocable gift to the parties named therein, or was. it intended as a testamentary paper merely ? There was nothing to indicate that it was a present gift. She had no idea of parting with the money during her life. The contrary intent appears upon the face of the paper. She speaks of not being in good health and wishing “to make a devide of what I have past me to my friends.” Then her husband adds to the paper, “I, John Murphy I will Ancer this Bill in one year after the decease.” Whose decease ? Evidently the decease of Mrs. Murphy. Mrs. Collins testifies that Mrs. Murphy “ asked Mr. Murphy to write down how she wished her property to be distributed, and he wrote then this paper at her dictation.” The paper was evidently intended as a will. It was a rude attempt on the part of Mrs. Murphy to dispose of her property after her death. It is needless to say that the paper possessed none of the statutory requirements of such an instrument. The right of a married woman to make a will of her separate estate rests upon statute, and its provisions must be strictly complied with.' It was contended, however, that although the paper is invalid .as a will, it nevertheless creates a, trust in favor of the appellants; that the decedent, as her trustee, was bound to execute it, and has in fact promised to do so. Undoubtedly, if Mrs. Murphy had created a valid trust of this money, assuming it to be her separate estate, her husband, in his lifetime, and his personal representatives since his death, could have been compelled to execute it. But this paper creates no trust that equity would enforce. Had it been in the nature of a present gift to the appellants, the case might have been different. But a paper which is evidently of a testamentary character, which was intended to operate as a will, and which is wholly invalid, cannot be turned into a declaration of trust, so as to operate as a will, and defeat the statute prescribing how the will of a married woman shall be executed. If, then, the paper is inoperative, either as a present gift or testamentary disposition of Mrs. Murphy’s money, it does not need an argument to show that the declaration of the decedent that he would “Ancer the Bill,” or pay the money to the appellants, amounts to nothing. In the absence of any legal liability or duty to pay, his promise to do so was a mere nudum pactum.

The decree is affirmed and the appeal dismissed at the cost of the appellants.

Sharswood, Mercur and Woodward, JJ., dissent.