Summers Estate

¶1Dissenting Opinion by

¶2Whichever way this litigation is resolved, one of the parties will receive a substantial windfall. That being so, I fail to see why the orphans’ court (a court acting upon equitable principles) should reward the party whose hands are clearly the more soiled of the two.1 Moreover, I do not believe that the majority is correct in raising a resulting trust in favor of Patton. It appears to be admitted that the transaction from which the resulting trust is raised would have had the effect of placing beyond the immediate grasp of Patton’s *201creditors an asset of substantial value and tbat Patton was insolvent, at least in tbe equitable sense of tbat term, at the time of tbe transaction. Tbe transaction was, therefore, a fraud on Patton’s creditors sufficient to prevent tbe raising of a resulting trust, Policarpo v. Policarpo, 410 Pa. 543, 189 A. 2d 171 (1963); Restatement 2d, Trusts, §§63, 422, 444, at tbat time. Tbe fact tbat Patton may subsequently have paid bis creditors does not make tbe initial transaction any tbe less fraudulent.2

¶3Although I am persuaded tbat, as between Patton and Summers’ Estate, tbe latter is entitled to any windfall, it does not seem fair in this case to enrich Summers’ Estate at Patton’s expense. I see no reason why tbe orphans’ court should not, in making an award to tbe estate, deduct therefrom the amounts expended by Patton for the automobile and for tbe insurance premiums.

¶4I dissent therefore from tbe majority’s result which affirms tbe award of a windfall to one who, with federal tax liens and other claims of creditors outstanding against him, sought to funnel bis income into an asset titled in tbe name of another and now claims the benefit of a policy of insurance on tbe life of tbat other which was designed solely to protect tbe estate and creditors of tbat other.