Appeal, No. 62, March T., 1963, from decree of Orphans' Court of Allegheny County, No. 1163 of 1962, in re inter vivos trust of Richard E. Koziell, deceased. Decree reversed.
Ruth F. Cooper, for appellant.
Norman Paul Wolken, with him Norman Landy, and Wolken & Landy, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE O'BRIEN
Richard E. Koziell died on November 3, 1961, survived, inter alia, by his widow, Katherine Koziell, and two sons, Richard and David, 20 and 15 years old, respectively.
Decedent was separated from his wife at the time of his death and resided, for three years prior to his death, with his sister, E. Jessie Barry. In his lifetime, decedent was employed by The Great Atlantic & Pacific Tea Company, Inc., and was insured under its company group life insurance program in the amount of $9,000. Early in 1959, decedent executed a change of beneficiary form, whereby he removed his wife as beneficiary and substituted his sister, E. Jessie Barry.
Subsequent to Richard Koziell's death, his widow, on behalf of the minor children, petitioned the Orphans' Court for a citation to Mrs. Barry "to show cause why she should not establish a guardian or have a trustee declared and subject herself to the supervision" of the Orphans' Court. The substance of the petition was that decedent named his sister as beneficiary of the life insurance policy on her promise that she would use the proceeds for the benefit of his sons, thereby creating a parol inter vivos trust.
After a hearing, a decree was entered dismissing the petition. Petitioner filed exceptions to the decree and the court en banc entered a decree dismissing the exceptions; this appeal followed.
The petitioner and her sons testified to the effect that Mrs. Barry stated to them at the hospital and at the funeral home, on the date of decedent's death, that the proceeds of the insurance policy belonged to them, and that she, Mrs. Barry, wanted none of it. Mrs. Koziell further testified that, as a result of Mrs. Barry's declarations, she called Mr. Rising of A & P's personnel department and informed him of Mrs. Barry's declarations. Mr. Rising testified that he prepared waiver forms for Mrs. Barry's signature and telephoned her for ...