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ESTATE MARY TRBOVICH (02/01/80)

decided: February 1, 1980.

IN RE ESTATE OF MARY TRBOVICH, DECEASED. APPEAL OF NATALIE AND STELLA PAVLOVICH


No. 45 March Term, 1979, Appeal from the Decree entered March 9, 1979 by the Court of Common Pleas, Orphans' Court Division, of Allegheny County, at No. 2979 of 1977.

COUNSEL

Norbert A. Michalski, Pittsburgh, for appellant.

Wendell G. Freeland, Richard F. Kronz, Freeland & Kronz, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.

Author: Nix

[ 488 Pa. Page 585]

OPINION OF THE COURT

This is an appeal from the Chancellor's decree finding that the record established an oral or parol trust in favor of the decedent's son in certain bank accounts and bonds which decedent had transferred in her lifetime to Natalie and Stella Pavlovich, close friends of decedent. Exceptions were filed and argued before the court en banc and were dismissed. Natalie and Stella Pavlovich have now appealed charging that the evidence was insufficient as a matter of law to support the finding of a parol trust and that the Chancellor abused his discretion in permitting recovery upon a ground that was inconsistent with the pleading and theory of appellee during the hearings below. We find both of these contentions to be without merit and affirm the decree of the learned Chancellor.

Professor Austin Scott made the following pertinent observation:

At common law there are important distinctions between an instrument under seal and other instruments or oral transactions; but the common law seldom attached importance

[ 488 Pa. Page 586]

    to the distinction between a written instrument and transactions not evidenced by a written instrument. It is only by such statutes as the Statute of Frauds and the Statute of Wills that a writing as such becomes of legal significance. The tendency in modern law, however, is to minimize the importance attached to a seal and to enlarge the importance of the distinction between written instruments and oral transactions.

I A. Scott, Scott on Trusts § 39 at 308-9 (3d Ed. 1967).

Although our law recognizes a parol inter vivos trust of personalty, see 6 Hunter, Pa. Orphans' Court, § 6 (1974), the trend referred to by Professor Scott is reflected in the burden placed upon the proponent of such a trust to establish its existence. Our cases require proof that is "clear, precise and unambiguous." Kerwin's Estate, 371 Pa. 147, 89 A.2d 332 (1952). The acts performed and words spoken must admit to no other interpretation than the creation of a trust. Gribbel v. Gribbel, 341 Pa. 11, 17 A.2d 892 (1941). "[U]nless the evidence of an oral trust is of the highest probative value, equity should not act to convert an absolute ownership into an estate of lesser quality." Policarpo v. Policarpo, 410 Pa. 543, 545, 189 A.2d 171, 172 (1963); Sechler v. Sechler, 403 Pa. 1, 7, 169 A.2d 78, 81 (1961). No part of a parol trust can be left to inference; the proof must be clear and specific in all particulars. Brickell v. Earley, 115 Pa. 473, 8 A. 623 (1887).

Since the Statute of Frauds, Act of April 22, 1856, P.L. 532, § 4, 33 P.S. § 2, requiring trusts in realty to be in writing, has no applicability to trusts in personalty, an express parole trust in personalty, if established, will be enforced.*fn1 Keller v. Keller, 351 Pa. 461, 41 A.2d 547 (1945). Further, since we are here concerned ...


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