Appeal, No. 196, Jan. T., 1949, from decree of Orphans' Court of Luzerne County, 1947, No. 490, in Estate of Stanley Kata, Deceased. Decree affirmed; reargument refused January 17, 1950.
Nelson A. Bryan, with him Joseph A. Mulhern, for appellant.
Nathan Hyman, with him Thomas E. Roberts, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE DREW
This appeal raises the question whether Charles (Kasimer) Kata, appellant, is entitled to the funds in a bank account created by Stanley Kata, deceased, in the name of "Stanley Kata or Charles Kata, Brother". Appellant, who is also executor under Stanley's will, did not include those funds as an asset of Stanley's estate and upon exceptions filed in the Orphans' Court of Luzerne County by Stanley's widow, a decree was entered surcharging appellant in the sum of $7,683.97, the amount on deposit in the account at the time of Stanley's death. This appeal challenges the correctness of that decree.
Prior to July 7, 1933, Stanley Kata had two accounts in his name alone in the Miners National Bank of Nanticoke. On that day he went to the bank accompanied by his minor brother, Charles, then sixteen years of age, and directed the closing of those accounts and the opening of a new one with those funds in the name of "Stanley Kata or Charles Kata, Brother". The signature card for this account was signed by Stanley and Charles. From time to time money was deposited in or withdrawn from the account, and on march 11, 1947, the date of Stanley's death, the balance in the account was $7,683.97. There was no evidence to show who made the additional deposits but it does appear that withdrawals were made by both brothers. On one occasion, Standley withdrew $3400 from the account to purchase a cashier's check in order to lend Charles money with which to buy a home. Until a few months prior to his death, Stanley kept possession
of the passbook. At the time, he handed it in a sealed envelope to his friend, Irving Zabiegalski, with instructions "to take case of the envelope until the [Stanley] asked for it and in case anything should happen the proper parties should get what was in the envelope".
Appellant concedes that a joint tenancy with right of survivorship was not created in this account. He contends, however, that under the Act of March 31, 1812 P.L. 259,*fn1 a presumption arose upon the introduction into evidence of the signature card that Stanley intended to create a tenancy in common by a gift to appellant of a one-half interest in the funds in the account. We cannot agree with that contention. It is well settled that proof that a person opened a bank account with his own money in the name of himself and another, with no mention of right of survivorship, does not raise a presumption that the depositor intended to vest in the other party any beneficial interest in the fund: Wilbur Tr. Co. v. Knadler et al., 322 Pa. 17, 185 A. 319; Mader et al. v. Stemler et al., 319 Pa. 374, 179 A. 719; In re Est. of Eliza Gallagher, Deceased, 109 Pa. Superior Ct. 304, 167 A. 476.
There being no presumption in appellant's favor, the burden was his to prove by clear and satisfactory evidence that a gift was in fact made: Sullivan v. Hess, 241 Pa. 407, 88 A. 544. Appellant failed to carry this burden. It is true that the manner in which the account was created gave to appellant the right to withdraw funds from it, and that he exercised that right. But the mere granting of a right to draw money, without proof ...