Opinion by
Mr. Justice Dean,
Prudence Hoffner, the testatrix, died May 26,1892. On the 24th of May, two days before her death, she made her will, which was duly admitted to probate June 7, 1892.
The facts, either not disputed or found by the orphans’ court, were these: Prudence Hoffner, the testatrix, was the aged childless widow of Charles B. Hoffner, who died some time before the year 1882. After his death, the widow and her husband’s sister, Elizabeth B. Hoffner, lived together. The sister was [339]*339possessed of a small estate consisting of a house and lot in Germantown, worth about $1,400, and personal securities of about the same value ; she was much older than her brother’s widow, being at her death in 1888 in her 95th year. On May 80, 1883, Elizabeth made her will, in which she gave her whole estate to her sister-in-law, this testatrix, and after her death in 1888, on probate of the will, Prudence took the estate devised and bequeathed to her. Elizabeth had intended to give $1,000 to St. John’s Lutheran Church, and $300 to each of two other church institutions, but, when she came to execute her will, bequeathed her entire estate to Prudence; then she apparently regretted the neglect of her church, and was troubled in mind because of it; on this becoming known to Prudence, she more than once assured Elizabeth, in most significant language, that she would carry out her wishes with regard to the bequest to the church, and also as to two smaller gifts of $300 each to the Lutheran Home and Lutheran Seminary. The orphans’ court finds as a fact that: “ It cannot be doubted in this ease that, but for the assurances on the part of Mrs. Hoffner, the sister-in-law would have changed the will giving everything to her, and' have thus carried out her original intention of giving directly to the charity.” Although Elizabeth survived nearly five years, no change was made in her will, and about all the property Prudence had at her death came to her under this will. After the death of Elizabeth in 1888, Prudence manifested, by a codicil to a will already made by her, an intention to fulfill her promise to Elizabeth by bequeathing $1,000 to St. John’s Church, and $300 each to the Lutheran Home and Lutheran Seminary; then follow a number of other bequests, concluding with this declaration : “ All of the above and foregoing bequests are to be in memory of my sister-in-law, Elizabeth B. Hoffner, who died- February 12,1888, in the 95th year of her age.” On May 20 and May 21, 1889, she paid the intended legacies of $300 each to the Home and Seminary. She made no change, however, in the disposition of her estate as directed in the codicil until two days before her death, on May 24,1892, when a new will was executed, disposing of her whole estate, only the second, third and sixth items of which will are important in this contention. The second is as follows :
“ Second: I give and bequeath the sum of one thousand dol[340]*340lars to the trustees of St. John’s English Evangelical Lutheran Church of Philadelphia, in trust, that they shall safely invest the same, and apply so much of the interest or income arising therefrom as may be necessary to keep in perfect repair the burial lot and stones therein of my late husband, Charles B. Hoffner, in North Laurel Hill Cemetery, if any part of said income should not be necessary for that purpose, it may be used for the benefit of the chureh.
“ Third: I givé and bequeath my house and lot situate on Perkiomen street, Philadelphia, to Rachel C. Anderson during her natural life. If she leaves legal issue surviving her, then I give and devise the said house and lot to said issue. But if she leaves no legal issue surviving her, then I give, bequeath and devise said house and lot to St. John’s Evangelical Lutheran Church of Philadelphia.
“ Sixth: I give and bequeath all the rest, residue and remainder to my niece, Rachel C. Anderson. But if she is dead, then to her children or to such persons as she may have directed.”
Lewis D. Vail, Esq., was appointed executor of the will, and filed his account, showing a balance for distribution to legatees of $1,028.49. On distribution by Penrose, auditing judge, the residuary legatee, Rachel C. Anderson, contended that the bequest of $1,000 in the second item having been made for a religious use “ within one calendar month before the decease of testator,” it was avoided by the act of 26th of April, 1855, and by the same act went to her as residuary legatee. Her claim was disallowed. The auditing judge was of opinion that, as the will of May 24, 1892, contained no words of revocation, it only revoked the codicil of April 12, 1888, so far as its provisions were inconsistent with those of the codicil; and that the latter will, so far as concerned the legacy in the second item, being identical with those words making the same gift in the codicil, as to that part, was only a republication of the codicil, and the actual gift took effect as of the date of the codicil, therefore is not avoided by the act of 1855. He further held that, on the facts as found by him, the gift was good, because made in fulfillment of a promise to the original owner, Elizabeth Hoffner, through which promise testatrix acquired the property ; that thereby she incurred an obligation which equity [341]*341would have enforced, had she not voluntarily performed it. He therefore directed the payment of $1,000, as bequeathed in the second item of the will, subject to the collateral inheritance tax, and the remainder, if any, to the residuary legatee. On exceptions being filed by this appellant, they were overruled by the orphans’ court, and the report of the auditing judge confirmed for the reasons given by him. From that decree, the residuary legatee appeals to this court.
We think the orphans’ court was in error in holding that as the legacy in the second item was identical with that in the codicil, the will as to that bequest was a mere republication of the codicil, and as the bequest in the will was inoperative only because of the act of 1855, the' codicil was effective. While not questioning the rule that a second will which fails because of defective execution, does not revoke a legacy in a former will, in harmony with that in the one which fails, yet here in the codicil containing the bequest in supposed harmony, there was no residuary clause; the residuary legatee in the will of 1882, to which the codicil was appended, was another than the one named in the will before us. The first will and codicil were, therefore, fatally inconsistent with the last one. But, independent of any rule of construction, the act of 1855 does not permit us to seek for a legatee under some former will made more than a calendar month before death. If the bequest here is invalid, it is because tbe statute so declares, and for no other reason; if for that reason, then the same statute declares where it shall go, “ to the residuary legatee or devisee.” That would give it to this appellant, the residuary legatee, unless the claim of the church can be sustained independent of the void will.
But the second proposition on which the distribution to the church is sustained, compels assent. The court below says:
“ But the gift is further to be maintained because it was made in compliance with a duty on the part of the testator, arising from her promise to the original owner, from whom she acquired the property, a duty which would have been enforced in equity, had she not voluntarily performed it.
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Opinion by
Mr. Justice Dean,
Prudence Hoffner, the testatrix, died May 26,1892. On the 24th of May, two days before her death, she made her will, which was duly admitted to probate June 7, 1892.
The facts, either not disputed or found by the orphans’ court, were these: Prudence Hoffner, the testatrix, was the aged childless widow of Charles B. Hoffner, who died some time before the year 1882. After his death, the widow and her husband’s sister, Elizabeth B. Hoffner, lived together. The sister was [339]*339possessed of a small estate consisting of a house and lot in Germantown, worth about $1,400, and personal securities of about the same value ; she was much older than her brother’s widow, being at her death in 1888 in her 95th year. On May 80, 1883, Elizabeth made her will, in which she gave her whole estate to her sister-in-law, this testatrix, and after her death in 1888, on probate of the will, Prudence took the estate devised and bequeathed to her. Elizabeth had intended to give $1,000 to St. John’s Lutheran Church, and $300 to each of two other church institutions, but, when she came to execute her will, bequeathed her entire estate to Prudence; then she apparently regretted the neglect of her church, and was troubled in mind because of it; on this becoming known to Prudence, she more than once assured Elizabeth, in most significant language, that she would carry out her wishes with regard to the bequest to the church, and also as to two smaller gifts of $300 each to the Lutheran Home and Lutheran Seminary. The orphans’ court finds as a fact that: “ It cannot be doubted in this ease that, but for the assurances on the part of Mrs. Hoffner, the sister-in-law would have changed the will giving everything to her, and' have thus carried out her original intention of giving directly to the charity.” Although Elizabeth survived nearly five years, no change was made in her will, and about all the property Prudence had at her death came to her under this will. After the death of Elizabeth in 1888, Prudence manifested, by a codicil to a will already made by her, an intention to fulfill her promise to Elizabeth by bequeathing $1,000 to St. John’s Church, and $300 each to the Lutheran Home and Lutheran Seminary; then follow a number of other bequests, concluding with this declaration : “ All of the above and foregoing bequests are to be in memory of my sister-in-law, Elizabeth B. Hoffner, who died- February 12,1888, in the 95th year of her age.” On May 20 and May 21, 1889, she paid the intended legacies of $300 each to the Home and Seminary. She made no change, however, in the disposition of her estate as directed in the codicil until two days before her death, on May 24,1892, when a new will was executed, disposing of her whole estate, only the second, third and sixth items of which will are important in this contention. The second is as follows :
“ Second: I give and bequeath the sum of one thousand dol[340]*340lars to the trustees of St. John’s English Evangelical Lutheran Church of Philadelphia, in trust, that they shall safely invest the same, and apply so much of the interest or income arising therefrom as may be necessary to keep in perfect repair the burial lot and stones therein of my late husband, Charles B. Hoffner, in North Laurel Hill Cemetery, if any part of said income should not be necessary for that purpose, it may be used for the benefit of the chureh.
“ Third: I givé and bequeath my house and lot situate on Perkiomen street, Philadelphia, to Rachel C. Anderson during her natural life. If she leaves legal issue surviving her, then I give and devise the said house and lot to said issue. But if she leaves no legal issue surviving her, then I give, bequeath and devise said house and lot to St. John’s Evangelical Lutheran Church of Philadelphia.
“ Sixth: I give and bequeath all the rest, residue and remainder to my niece, Rachel C. Anderson. But if she is dead, then to her children or to such persons as she may have directed.”
Lewis D. Vail, Esq., was appointed executor of the will, and filed his account, showing a balance for distribution to legatees of $1,028.49. On distribution by Penrose, auditing judge, the residuary legatee, Rachel C. Anderson, contended that the bequest of $1,000 in the second item having been made for a religious use “ within one calendar month before the decease of testator,” it was avoided by the act of 26th of April, 1855, and by the same act went to her as residuary legatee. Her claim was disallowed. The auditing judge was of opinion that, as the will of May 24, 1892, contained no words of revocation, it only revoked the codicil of April 12, 1888, so far as its provisions were inconsistent with those of the codicil; and that the latter will, so far as concerned the legacy in the second item, being identical with those words making the same gift in the codicil, as to that part, was only a republication of the codicil, and the actual gift took effect as of the date of the codicil, therefore is not avoided by the act of 1855. He further held that, on the facts as found by him, the gift was good, because made in fulfillment of a promise to the original owner, Elizabeth Hoffner, through which promise testatrix acquired the property ; that thereby she incurred an obligation which equity [341]*341would have enforced, had she not voluntarily performed it. He therefore directed the payment of $1,000, as bequeathed in the second item of the will, subject to the collateral inheritance tax, and the remainder, if any, to the residuary legatee. On exceptions being filed by this appellant, they were overruled by the orphans’ court, and the report of the auditing judge confirmed for the reasons given by him. From that decree, the residuary legatee appeals to this court.
We think the orphans’ court was in error in holding that as the legacy in the second item was identical with that in the codicil, the will as to that bequest was a mere republication of the codicil, and as the bequest in the will was inoperative only because of the act of 1855, the' codicil was effective. While not questioning the rule that a second will which fails because of defective execution, does not revoke a legacy in a former will, in harmony with that in the one which fails, yet here in the codicil containing the bequest in supposed harmony, there was no residuary clause; the residuary legatee in the will of 1882, to which the codicil was appended, was another than the one named in the will before us. The first will and codicil were, therefore, fatally inconsistent with the last one. But, independent of any rule of construction, the act of 1855 does not permit us to seek for a legatee under some former will made more than a calendar month before death. If the bequest here is invalid, it is because tbe statute so declares, and for no other reason; if for that reason, then the same statute declares where it shall go, “ to the residuary legatee or devisee.” That would give it to this appellant, the residuary legatee, unless the claim of the church can be sustained independent of the void will.
But the second proposition on which the distribution to the church is sustained, compels assent. The court below says:
“ But the gift is further to be maintained because it was made in compliance with a duty on the part of the testator, arising from her promise to the original owner, from whom she acquired the property, a duty which would have been enforced in equity, had she not voluntarily performed it. It is well settled that if, by the promise of an heir or residuary legatee, the ancestor of testator is induced to make no will or to leave that which he has made unchanged, the heir or devisee or legatee will be regarded as. a trustee for the person in whose favor the will [342]*342would have been made or changed but for the promise which prevented it.”
Or perhaps the rule may be more concisely stated from an older authority than those cited: “ Whatsoever ye would that men should do unto you, do ye even so unto them.” When one procures from another a gift of the whole of that other’s estate, on a promise to give part of it at death for a special purpose, or to a particular individual, the fullfilment of the promise will be enforced in a court of equity, because to the moral obligation there is added the force of a legal one; the estate of the donor is parted with on the faith of the promise. Although there was an absence of all fraud on the part of Prudence Hoffner in obtaining this estate, it was none the less a trust.
The court has found as a fact that the entire property of Elizabeth was obtained by Prudence, upon an express promise to give this $1,000 to the church. Without such promise, Elizabeth, having full power so to do, would herself have directed the disposition of it. There is no exception to this finding of fact by appellant. If equity would declare and enforce a trust thus created, as the authorities from Hoge v. Hoge, 1 Watts, 163, followed by many others, cited by the court below, abundantly show it would, why should it not be declared and enforced on a distribution of the trust estate in the orphans’ court ? The fund for distribution is the same that passed from Elizabeth to Prudence on the faith of the promise; the promise was recognized by Prudence in the codicil of April 12, 1888, made soon after the death of Elizabeth; she again acknowledged it in this will, which fails of effect through no fault of hers. She acknowledged it in the payments during life to the Home and Seminary. But the promise remains in respect to the $1,000 in all its binding moral and legal force, although this particular method of performing it is invalid.
It is argued, the orphans’ court is without jurisdiction in such a case. If that be correct, it is powerless to make distribution of a fund to and among those entitled to it. But that court is a court of equity, and has as full power as a chancellor to grant relief within its jurisdiction; and its jurisdiction is over the estates of decedents: Johnson’s Appeal, 114 Pa. 132. It has power to determine whether a parol trust has been created as to a fund before it for distribution : Lowry’s Appeal, Ibid. 219
[343]*343This money goes to the church, not by the will, but because there is no valid will, when there ought to have been one; it is a right of the church, for whose benefit the promise was made, to insist on the fulfillment of the obligation in a court of equity, in whose hands is the fund and before whom are all parties in interest.
Nor does the statute of limitation bar the claim. The promise was made in 1883, to be performed after the death of Elizabeth, which occurred 12th of February, 1888; this adjudication was had 10th May, 1893, within the statutory period.
We are of opinion that the adjudication of the orphans’ court for the reasons stated by us should be affirmed; therefore the appeal is dismissed at costs of appellant.