Appeal, No. 116, Jan. T., 1953, from decree of Orphans' Court of Philadelphia County, 1950, No. 610, in Estate of Elizabeth M. Rodgers, deceased. Decree affirmed.
Francis X. McClanaghan, with him Louis F. McCabe, for appellants.
W. LeRoy McKinley, with him John J. Mitchell, Jr., for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Did Elizabeth M. Rodgers revoke either during her lifetime or by will the tentative trust which she had established for her sister, Martha B. Rodgers? This is the single question presented by the appeal.
The issue is raised by the petition of John J. Mitchell, Jr., Esq., executor of the will of Elizabeth Rodgers, for a citation directed to the guardian of the
estate of Martha B. Rodgers, incompetent, and to the Beneficial Saving Fund Society, to show cause why the fund on deposit in that society in an account entitled "Elizabeth M. Rodgers in trust for sister Martha B. Rodgers" should not be paid to the executor. After answer on the merits the matter was referred for hearing to a master who concluded in an exhaustive report that the trust had been revoked and that the fund should be awarded to the executor as part of the decedent's estate. Exceptions were argued in the orphans' court and the matter referred back to the master for a further finding. The master affirmed his earlier conclusion in a second report, and this was approved by the orphans' court in banc. This appeal followed.
The doctrine of tentative trusts was evolved by the courts of New York in what Justice (later Chief Justice) SCHAFFER described as "an effort to retain for the depositor the complete control of the fund during his life and yet secure to the beneficiary any balance standing in the account at the death of the depositor": Scanlon's Estate, 313 Pa. 424, 427, 169 A. 106. In that case we adopted the New York rule as the law of Pennsylvania, quoting as follows from In re Totten, 179 N.Y. 112, 71 N.E. 748: "'... A deposit by one person of his own money, in his own name as trustee for another, standing aline, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.'" Since
then, despite some criticism of the rule (see e.g., dissenting opinion of Mr. Justice BELL in Ingels Estate, 372 Pa. 171, 182, 92 A.2d 881), it has become an integrated part of our jurisprudence and has been applied time and again by our appellate courts and courts of first instance. See, inter alia: Tunnell's Estate, 325 Pa. 554, 190 A. 906; Bearinger's Estate, 336 Pa. 253, 9 A.2d 342; Brown v. Monaca Federal Savings and Loan Association, 352 Pa. 1, 42 A.2d 50; Shapley Trust, 353 Pa. 499, 46 A.2d 227; vierling v. Ellwood City Federal Savings & Loan Association, 356 Pa. 350, 52 A.2d 224; Pozzuto's Estate, 124 Pa. Superior Ct. 93, 188 A. 209; Downey v. Duquesne City Bank, ...