dissenting. — I feel impelled to dissent from the majority in this case, not only because of the reasons expressed in the dissenting opinion (in which Van Dusen, P. J., joined) in Collopy’s Estate, 33 D. & C. 169, 173, but because this case goes even farther than the majority of this court went in that case. There the rule suggested in comment (6), sec. 58 of the A. L. I. Restatement of Trusts, was followed, viz:
“The death of the beneficiary of a tentative trust.of a savings deposit prior to the death of the depositor terminates the trust, and even though the depositor dies without having manifested an intention to revoke the trust and without having withdrawn the deposit. ...” (Italics supplied.)
In the instant case there is no proof that the beneficiary died prior to the death of the depositor, or vice versa (both having died in a common disaster). In absence of such proof the law regards neither as having survived the other: Kimmey’s Estate, 326 Pa. 33. It follows, therefore, that neither Collopy’s Estate, nor the comment of the A. L. I. Restatement of Trusts, on which it is based, controls.
The majority would disregard the only evidence of title before us, namely, the fact that decedent held the deposit not for herself, but in trust for the beneficiary. In Gaffney’s Estate, 146 Pa. 49, following Smith’s Estate, 144 Pa. 428, Chief Justice Paxson said (p. 54) :
“We have, then, the case of a deposit on the hooks of the bank of a sum of money in the name of Hugh Gaffney, trustee for Polly McKim. This makes out at least a prima-facie case for the appellant. Upon the face of the bank book, the money belonged to Polly McKim, and there is *98not sufficient upon the record to rebut this presumption. This money should have been awarded to the appellant.”'
I regard that case as controlling and would therefore sustain the exceptions.