Opinion
April 18, 1944.
May 22, 1944.
Wills — Property held by entireties — Attempted disposition.
1. A testator has no power to dispose of property held by him and his wife by the entireties. [569-70]
Trusts and trustees — Creation of trust — Personal property — Evidence — Parol — Burden of proof — Intention to create future trust.
2. A trust as to personalty may be created by parol. [570]
3. The burden is on the plaintiff to prove the creation of a parol trust in personalty by evidence which is clear, precise and indubitable. [570]
4. A declaration by an owner of property of his intention to create a trust of it in the future, or his promise to do so is insufficient to create a trust. [570]
Argued April 18, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 50, Jan. T., 1944, from decree of O. C., Lackawanna Co., 1941, No. 1073, in Estate of Vitacrescenzia Corbo Williams. Decree affirmed.
Audit of account of executor.
The facts are stated in the opinion of the court below as follows:
Frank Williams, husband of the decedent, died April 5, 1933, testate, survived by his widow and collateral heirs. By his will he provided for numerous bequests and named residuary legatees.
At the time of his death he and his wife, the decedent in the instant proceedings, had cash on deposit amounting to $4,891.00, five (5) shares of the stock of the Fidelity Deposit Discount Bank of Dunmore, Pa., a note of Paul Williams, a mortgage for $2700.00 with interest in default, on property owned by one of the residuary legatees.
Vitacrescenzia Williams died November 9, 1941, intestate, leaving to survive her a sister and the children of a deceased brother. Letters of administration were granted to the Lackawanna Trust Company, which qualified and took into possession a bank balance remaining, which amounted to $4,699.92, being less than the amount at the time of her husband's death; the administrator also took into its possession the bank stock, the mortgage and bond, a judgment note made by Paul Williams, proceeds of life insurance policy.
The Trust Company filed an inventory and an account to which exceptions have been filed on behalf of Paul Williams and Frank D'Andrea, who with the South Side Bank and Trust Company, administrator d. b. n. c. t. a. of the estate of Frank Williams, deceased, have presented a petition for a citation to show cause why an issue should not be awarded, alleging title to all of the property of the estate of Vitacrescenzia Williams, deceased, as heirs of Frank Williams, deceased, and that the instant decedent was a trustee for their benefit. The answer to the citation filed on behalf of the respondent avers inter alia: that the widow was the absolute owner of the property, and not the devisee, and therefore she could not be a trustee.
On June 4, 1943, the South Side Bank and Trust Company, administrator d. b. n. c. t. a. of the estate of Frank Williams, deceased, and Paul Williams and Frank D'Andrea, for themselves and for other heirs of Frank Williams, deceased, filed a petition for the award of an issue to the court of common pleas of Lackawanna County to determine the ownership of the items excepted to, alleging that Frank Williams, deceased, was the owner of the assets at the time of his death and had disposed of them by will, subject to a life estate in his widow, the present decedent, and that the widow had orally declared that she held these items in trust for the beneficiaries named in her husband's will.
A testator has no power of disposition of property held by him and his wife by the entireties. The law fixes the absolute title therein immediately upon his death, and he could not dispose of what was not his own and where the law placed ownership in some one else: Irlbacher's Estate, 62 Pitts. Leg. Jour. 53. The will of one devising property held in entireties leaving a survivor in the entirety is a nullity: Steinman v. Palm, 76 Pitts. Leg. Jour. 798.
A trust as to personalty may be established by parol: Smith's Estate, 144 Pa. 428, but to create such a trust the burden is on the plaintiff to furnish proof by evidence clear, precise and indubitable: Washington's Estate, 220 Pa. 204, Hollis v. Hollis, 254 Pa. 90.
The expression of a mere intention to create a trust, therefore, without more is insufficient; like a promise to give, it will not be enforced: Smith's Estate, supra.
If an owner of property declares his intention to create a trust of the property in the future, or promises he will create such a trust, no trust is presently created: Scott on Trusts, Section 26.
On a careful examination of the testimony adduced by the petitioner, we conclude that it does not meet the requirements of the law and is insufficient to establish a parol trust.
And now, September 22, 1943, the petition is dismissed and the grant of an issue refused. Exception noted.
Claimant appealed.
William B. Landis, with him A. A. Vosburg, for appellants.
John Memoro, for appellee.
The decree is affirmed on the opinion of the court below. Appellant to pay the costs.