Osmond's Estate

Opinion by

Mr. Justice Mitchell,

The reply of decedent’s father when she offered to pay him the money that she owed him, “ keep it for the children,” is consistent with the view of the learned auditor that the father intended a gift to his daughter, and the mention of the children was a mere expression of the motive for the gift, but it is also consistent with the other view that it was a gift in trust for the children, and the other evidence tends strongly to show that such was the understanding of the parties at the time and subsequently. The father knew that the money was not being spent by his daughter, but was invested in mortgages for accumulation, while she and her children lived with and were supported by him, and she took in sewing to provide in part for the current expenses of living. Matters remained in this condition until her second marriage, when the father immediately showed his anxiety about the children’s money. The learned auditor treats this as an indication that the father knew the money had been given to her and not to the children, but it appears to us to tend more to the other view that he considered it the children’s but knew it was not formally secured to them, and this is further confirmed by the answer of the daughter, “ I can fix that by a will.” Regarding it as a trust for the children, the father might reasonably have been satisfied that it could and would be properly eared for by a will, but regarding it as her own, he would hardly have been put off with that answer, for few people are ignorant of the law that surviving husbands have interests in their wives’ estates which cannot be interfered with by will. The conduct of the father appears to us to show that he intended and considered his gift of the money as to the children.

On the other hand the conduct of the daughter tends to the conclusion that she regarded it in the same light. She put it out immediately as an investment separate from the rest of hex-money, expressed her purpose not to touch it as it was for the children’s education, and, atone time entertaiixing the intention of buying a farm with it, wanted the title put in the name of her soix, the oldest child. And, finally, her confidence, both when asked by her father after her second mai-riage, and upoix her deathbed, that she could take care of the childrexx’s interest by a will, is only explainable on the ground that she regarded it as a trust, or the much less probable view that she was ignorant of the law as to the rights of a surviving husband.

On the whole case we regard the px-eponderance of the evidence as indicatiixg that the gift was intended by the father to be for the children, and that it was so understood and accepted by the daughter.

Moreover the husbaixd is clearly estopped from denying this conclusion. Her will was read to him and he expressed himself satisfied with it in her presence before she executed it. On the same day she gave him a check for two hundred and fifty dollars. Would she have given him this money, and made her will in the form she did, if he had in any way indicatéd a denial or even a doubt of her right to dispose of this fuxxd as the children’s? Neither she nor her father who wrote the will was learned in the law, but they seem to have known enough of the husband’s rights to inform him of the contents of the will. If he had not said he -was satisfied with it, it is only reasonable to suppose that she might have called in counsel and put the title to the money in more satisfactory shape. Her husband’s assent prevented her from realizing the necessity of anything more than making the will. It was not a mere deathbed assent made to relieve a dying wife, but was in accordance with what her declarations show that he had all along led her to believe. Of this there is no denial on his part. He allowed her to die in the belief that she had established the children’s right to the fund, and it is now too late for him to claim in opposition to her act.

The fund, though in the name of the decedent, being a trust, was improvidently included in the executor’s account, and there is no difficulty in allowing its withdrawal: Qualters’s Est., 147 Pa. 124.

Decree reversed, and record remitted for distribution m accordance with this opinion.