Horace L. Skiles, Ex'r of Ella Doerr, dec'd, v. Peoples Trust Co., guardian of Leon Umble.

But it is contended that if there was not a valid gift, the facts show that Ella Doerr held this money as trustee for Leon Umble. The difficulty with this is that there is nothing to show her intention to hold it for him as trustee.

In Smith's Estate, 144 Pa. 428, Justice Clark says: "What is clearly intended as a voluntary assignment or a gift, but is imperfect as such, cannot be treated as a declaration of trust. If this were not so, an expression of present gift would in all cases amount to a declaration of trust, and any imperfect gift might be made effectual simply by converting it into a trust. There is no principle of equity which will perfect an imperfect gift, and a court of equity will not impute a trust where a trust was not in contemplation: . . . to create a trust there must be the expression of an intention, not to create a present gift, but to become a trustee. . . . If the transaction is intended to be effected by gift, the court will not give it effect by construing it as a trust. . . . The acts of words relied upon must be unequivocal, plainly implying that the person holds the property as trustee." In Ashman's Estate, 223 Pa. 543, this language of Justice Clark is quoted, and it is stated that no trust can be created without some declaration to that effect. See also Roberts's Appeal, 85 Pa. 84, that there must be proof of some declaration or statement, in addition to the acts of the parties, to show that a trust has been created.

In the present case there has been no proof of any declaration or statement by Ella Doerr to show that she intended to create a trust and hold this money as trustee for her son. Under these authorities, therefore, no trust has been created, and as there was not a valid gift of the money to her son, her executor is entitled to the money so deposited in the name of "Leon Umble, per Ella Doerr." We, therefore, conclude:

First: That Ella Doerr, in obtaining the certificate of deposit in the name of her minor son Leon Umble, divested herself of all dominion over the money paid for that certificate of deposit, and invested him with it. This was a constructive delivery to him, and constituted a valid gift inter vivos. His guardian, The Peoples Trust Company of Lancaster, Pa., is therefore entitled to that certificate of deposit of $1613.41, with interest at the rate of three per cent from its date to the date of entering judgment.

Second: That there was no such delivery, actual or constructive, of the money deposited in the bank by Ella Doerr in the name of Leon Umble, per Ella Doerr," as divested her of dominion over that money, or invested Leon Umble therewith, so that there was not a complete and valid gift of it to him.

Third: There is no evidence of any statement or declaration by Ella Doerr showing that she intended to hold this money as trustee for her minor son, and in the absence of such, that which was invalid as a gift cannot be construed to be valid as a trust.

Fourth: Horace L. Skiles, executor of Ella Doerr, deceased, is entitled to the sum of $360.00 deposited in the New Holland National Bank in the name of "Leon Umble, per Ella Doerr."

Court of Common Pleas of Lancaster County

Atlantic Motor Truck Co. v. Kachel.

Statement Amendment of-Replevin.

A plaintiff may amend his statement so long as the amendment does not introduce a new cause of action. This rule applies to actions of replevin as well as all other actions.

In an action of replevin for an auto truck the statement may be amended so as to change the number of the truck and to show that the party who sold it to the plaintiff was acting as the representative of a third party named and not personally as alleged in the original statement.

Amendments to statements need not be sworn to.

Rule to amend statement.

March Term, 1920, No. 46.

K. L. Shirk and John A. Coyle, for rule.

F. Lyman Windolph, contra.

September 25, 1920. Opinion by HASSLER, J.

The plaintiff issued this writ of replevin to recover possession of a motor truck belonging to it and then in possession of the defendant. It is described in the praecipe, writ and bond as one Giant Model auto truck (Model 16 XX 1819) and body." The same description is contained in the statement with the addition of the words that it "acquired the same from J. E. Dare, also of Harrisburg." The plaintiff now asks to amend its statement by substituting No. 1892 for 1819, and that it acquired the truck "by purchase from the Auto Sales & Service Co., through J. E. Dare as agent, now president of the plaintiff company," instead of from J. E. Dare, also of Harrisburg, as now appears in the statement.

There is no question that the auto truck in question is the one for which the writ of replevin was issued. It is a Giant Model auto truck, Model 16, but it is No. 1892 and not 1819. It was acquired from J. E. Dare in a representative capacity, and not personally as alleged in the original statement. It is well settled that a plaintiff may amend his statement so long as the amendment does not introduce a new cause of action. This rule applies to actions of replevin as well as to all others. As the amendment asked for in this case does not introduce a new cause of action, but has for its object the correction of a clerical error in the description of the auto truck claimed by the plaintiff, which was in the possession of the defendant, at the time the writ was issued, and which was delivered to the plaintiff by the sheriff by virtue of the writ, all of which facts are undisputed, it does not introduce a new cause of action and must be allowed. There is nothing in the Act of Assembly requiring amendments such as this to be sworn to. The rule to amend is made absolute.

Rule made absolute.

Court of Common Pleas of Lancaster County

Hamaker, Ex'r of Bomberger v. Charles.

Wills-Construction-Remainder-Gift to class or individual.

A testatrix devised real estate in trust for the use of her son, naming him, "during his life, and at his death it is to go to his son," not naming him. She left to survive her her son, then forty years of age, and his only child, a son fifteen years of age. Held, that all of the remainder went to the grandson and, on coming of age, he and his father could convey a complete title.

The question whether a gift is to a class or to an individual is always one of intention to be determined in each case from the will and from the circumstances surrounding the testator at the time of its execution, with the light afforded by the presmuption in favor of vested interests.

Case stated. June Term, 1920, No. 91.
Harnish & Harnish, for plaintiff.
Frank S. Groff, for defendant.

July 3, 1920. Opinion by HASSLER, J.

On September 27, 1919, the plaintiff, at public sale, sold to the defendant a tract of land in Fulton Township containing about six acres, of which his testator died seized. There is nothing in the conditions of sale nor in the agreement signed by the defendant referring to the title of the land sold. It was sold under a provision in the will of John R. Bomberger. According to the conditions of sale and the agreement of the defendant, the purchase money was to be paid and the deed delivered on April 1, 1920. On that date a deed was tendered to the defendant, but he refused to accept it and pay the purchase money because of an alleged defect in the title of plaintiff's testator. In the case stated, it is agreed by the parties, that if we are of the opinion that the title of the plaintiff's testator is good, judgment shall be entered for the plaintiff, otherwise for the defendant.

The objection to the title arises from the following facts: On April 21, 1886, Rebecca Jane Warden acquired title to the land in question. She died on February 28, 1902, leaving a will duly probated. (Will Book O, Volume 2, page 510), in which she devised "my real estate, if I shall hold any at the time of my decease clear of debt, I leave in trust for the use of my son Ellsworth Warden, during his life, and at his death it is to go to his son." No trustee was appointed. At the time of her death she owned the land in question, and left to survive her a son, Ellsworth Warden, then forty years of age, and his son, Oram R. Warden, who at that time was fifteen years of age. On January 6, 1909, the said Ellsworth Warden and Oram R. Warden, the latter then twenty-two years of age, by deed of that date, conveyed all their right, title and interest in the said real estate to Elmer L. Willauer, who conveyed it to David R. Bomberger, who conveyed it to J. R. Bomberger, plaintiff's testator.

It is contended by the defendant that Oram R. Warden did not take all of the remainder in the land after the life estate of Ellsworth Warden, under the will of Rebecca J. Warden, as the word "son" VOL. XXXVII, No. 54

Hamaker, Ex'r of Bomberger v. Charles.

used in that will referred to any son or all sons that the said Ellsworth Warden might leave surviving, so that if Oram R. Warden did not survive Ellsworth Warden he would take nothing under the will, and if the said Ellsworth Warden left other sons surviving he would share the said land with them. In other words, the word "son" is construed as applying to a class existing at the time of the death of Ellsworth Warden, and as not descriptive of Oram R. Warden, who was the only person whom it did describe at the death of the testatrix.

The intention of the testator, expressed in his will and fairly drawn from it, must govern the construction of it. It must be interpreted in the light of all the circumstances by which the testator was surrounded when he made it, and by which he probably was influenced: Stambaugh's Estate, 135 Pa. 585. The question whether a gift is to a class or to an individual is always one of intention to be determined in each case from the will and from the circumstances surrounding the testator at the time of its execution, with the light afforded by the presumption in favor of vested interests: Wenzel's Estate, 12 D. R. 63. In applying these rules it has been decided in Moore's Estate, 6 Mont. 117, wherein a will or legacy is bequeathed to "my granddaughter" without naming her, but in a codicil a watch was bequeathed to "my granddaughter Laura ", it was held that Laura, and not the other granddaughters, was intended to receive the legacy mentioned in the will. In Walter's Estate, 10 Berks 167, the circumstances show, in using the words "children of a nephew ", the testator intended that some of them should take and not the whole class, and it was held that the whole class did not share in the bequest. In Peale's Estate, 11 Phila. 147, the testator bequeathed a legacy in trust to C, and at C's death to A and the children of B. B had then seven children. At the testator's death and before the death of C, two more children were born to B. Held that the intention of the testator, and the circumstances surrounding, showed that the two children of B, born after testator's death, were not to share.

In the case at bar the intention of the testator is clearly shown in the will to provide for her son and her fifteen-year-old grandson. The fact that they were the only ones answering the description that she was then interested in is a circumstance to show that such was her intention. If she intended any son of Ellsworth born subsequently should take she would have said so. There is no question of the estate inherited by her son, and there can be no question that her intention after the death of her son was that it should go to his son who was then living, that is, Oram R. He met the description of the word used in the will and the circumstance that he was then an object of her bounty also shows that it was her intention that the word should be used to describe him as the person whom she intended should take the estate after the death of her own son. The cases that we have cited above fully justify this view. We are of the opinion that all of the estate belonged to Ellsworth Warden and Oram R. Warden at the time they conveyed it to Willauer, and as defendant's testator at the time of his death had a good title to all the land in question, the plaintiff tendered a deed with a good title, and the defendant must accept and pay for the same. We, therefore, enter judgment for the plaintiff for the sum of $2,200.00.

Orphans' Court of Lancaster County

Estates of George and Elizabeth Roland.

Trust Funeral expenses of cestui que trust.

Where parents bequeathed the share of a son in trust during his life, with power in the trustee to turn the fund over to him, but he died before the trustee had paid out anything, his funeral expenses may be allowed on distribution of the trust fund.

Exceptions to adjudication. October Term, 1917, Nos. 1 and 2.

George and Elizabeth Roland each by will created a trust for the use of their son Henry. The scheme and amount of each was about the same. To the trustee was given the power to turn over the fund to him, but in the event of him not exercising that power the intention was that the trustee should function as would a guardian appointed by the court for a weak-minded person. The "guardian illustration concisely expresses the testators' intention. Their purpose was to give Henry a proportionate share of their estates, as was done to other children, but having a feeling of uncertainty as to his ability to use it to the best advantage, the bequest was put in the form of a trust. It would be contrary to the idea of the motives which influence parents to reason that the testators' intention was to seal the fund against the cost of a coffin and grave for their son. A hole in the ground in a potter's field for his dead body is repugnant to the directions in their wills for the use of the fund for his and his family's benefit and in conflict with the further provision permitting a transfer of it to him.

It became necessary to provine shelter and food for Henry and his wife Elizabeth. By concerted action, with the assistance of counsel representing all interests, it was substantially agreed that the status should be as if the technical trust had terminated. Thereupon a home was found for Henry with his daughter Annie, the wife of Morris Geisinger. It was definitely agreed that for his board she should be paid three dollars a week, and inferentially that his needs should be supplied and be paid for by the trustee. In like manner, for two dollars a week Elizabeth, Henry's wife, was lodged with her daughter, Ida Lapp. This arrangement continued for twenty weeks, when Henry died. In the meantime the trustee had paid nothing, and during this time it was necessary to buy for Henry a suit of underwear which cost $1.50, a collar and tie for fifty cents, stockings for forty cents, have a suit cleaned and pressed costing $1.50, car-fare $4.52, medical services $7.50, and digging his grave and funeral expenses amounting to $131.58, all of which was advanced by Morris Geisinger. While, for his reim