Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

TOMAYKO v. CARSON (10/03/51)


October 3, 1951


Appeals, Nos. 25, 26 and 27, March T., 1951, from judgment of Court of Common Pleas to Washington County, Feb. T., 1950, No. 358, in case of Alex A. Tomayko v. Roy I. Carson and Frances Swearingen, Exr. and Exrx., Estate of Samuel A. Swearingen. Judgment reversed; reargument refused November 15, 1951.


Charles C. Arensberg and Adolph L. Zeman, with them Patterson, Crawford, Arensberg & Dunn, Robert L. Zeman, Zeman & Zeman, Howard F. Carson and William S. Yard, for executors and legatee, appellants.

George B. Stegenga, with him Bloom, Bloom & Yard, for legatee, appellant.

Clarence O. Devore, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Stearne

[ 368 Pa. Page 380]


The question is whether the claimant, appellee, has established ownership to corporate stock which was in

[ 368 Pa. Page 381]

    the name of a decedent, and unendorsed, found after the death in a safe deposit box which was in the names of both decedent and claimant. The proof chiefly relied upon by claimant consists of declarations alleged to have been made by decedent that he had given the stock to claimant. The claim was presented to the orphans' court and, upon its own motion, was certified to the court of common pleas. A jury rendered a verdict in favor of claimant. Upon refusal of motions for new trial and judgment for defendants n.o.v., these appeals followed.

As we view the evidence, there are no disputed questions of fact to be determined by a jury. The question is whether claimant's evidence, regarded as true and most favorable to him, is sufficient at law to support his claim of ownership to the stock by inter vivos gift.

Samuel A. Swearingen, of Charleroi, Washington County, was the sole owner of 500 shares of the common stock of a corporation named the "Coca Cola Bottling Company of Charleroi, Pennsylvania." 408 shares were in the name of decedent, unendorsed; of the remaining two qualifying shares: one was in the name of claimant and the other in the name of Charles L. Phillips (an employe). Both shares, while unendorsed, were accompanied by attached options to decedent to purchase.

The stock was found in the safe deposit box above referred to, which also contained $112,680 in cash, decedent's gold coin collection, two ladies' rings, one gentleman's ring, one wrist watch, one diamond stick pin, United States Bonds, personal letters and papers of decedent and various shares of stock in different corporations.

Claimant, in his amended petition, claimed all of the contents of the safe deposit box, being 181-A of the National Bank of Charleroi and Trust Company.

[ 368 Pa. Page 382]

During the proceedings he withdrew all claims except to the stock of the Coca Cola Bottling Company of Charleroi.

Alex A. Tomayko, the claimant, was decedent's faithful and efficient employe, in whom decedent reposed great confidence. On February 23, 1944, decedent made his will wherein he bequeathed claimant all his stock in the Coca Cola Bottling Company of Charleroi. (italics supplied) On May 17, 1945, decedent made a first codicil which has no effect upon this litigation. On August 10, 1946, decedent executed a second codicil wherein the revoked the bequest of the stock to claimant and provided: "I direct that my executors give to the Coca-Cola Company of Pennsylvania (italics supplied) the first opportunity to buy my stock in the Coca-Cola Bottling Company of Charleroi (Italics supplied), Pennsylvania, at the fair and reasonable value of my said stock." A third codicil was executed on February 16, 1947, republishing the will but which did not change the testamentary provisions concerning the disposition of the stock. Decedent died June 24, 1948, and his will and codicils were duly probated July 13, 1948. Judge CARSON, a common pleas judge of Washington County, coexecutor and sole trustee in the will, a close personal friend of decedent, testified concerning decedent's reason for the change in his will. It was that the Coca-Cola Bottling Company of Charleroi was the licensee of the Coca-Cola Company of Pennsylvania. Officials of the latter company learned in some undisclosed manner of decedent's bequest. They objected. As licensor they feared that the stock might "pass into hands that would not manage the business correctly and properly." They insisted that the licensor company be permitted to purchase the stock upon decedent's death at its fair value. Decedent did not oppose these wishes because of his fear that the license might be withdrawn, whereupon the stock would be

[ 368 Pa. Page 383]

    worthless. Decedent thereupon reluctantly agreed to change his will. The Chicago lawyer of the licensor company drafted a clause which was accepted by decedent and which was incorporated in the codicil prepared by decedent's friend Judge CARSON. When the Judge inquired of decedent whether there should be incorporated a clause bequeathing the proceeds of sale of the stock to claimant, decedent stated that he " had already made arrangements that Alex would be taken care of."

Against this evidence claimant relies upon (a) testimony of three witnesses, all of whom testified to general declarations made by decedent that he had given the stock to claimant and (b) the fact that the safe deposit box, wherein the stock was found, was in the joint names of decedent and claimant.

A claim of a gift inter vivos against the estate of the dead must be supported by clear and convincing evidence: Leadenham's Estate, 289 Pa. 216, 137 A. 247; Snyderwine, Admrx. v. McGrath, 343 Pa. 245, 22 A.2d 644. In order to effectuate an inter vivos gift there must be evidence of an intention to make a gift and a delivery, actual or constructive, of a nature sufficient not only to divest the donor of all dominion over the property but also invest the donee with complete control over the subject matter of the gift: Pyewell's Estate, 334 Pa. 154, 5 A.2d 123; Rynier Estate, 347 Pa. 471, 32 A.2d 736. It is claimant's burden to prove by clear and satisfactory evidence that a gift in fact was made: Sullivan v. Hess, 241 Pa. 407, 88 A. 544; Kata Estate, 363 Pa. 539, 70 A.2d 351; Lochinger v. Hanlon, 348 Pa. 29, 39, 33 A.2d 1. Cf. Campbell's Estate, 61 D. & C. 19.

We have examined the testimony of claimant's witnesses with care. We agree with counsel for appellant that there is insufficient evidence establishing with necessary preciseness just when, where or under what circumstances

[ 368 Pa. Page 384]

    such declarations were made, or when such gift was in fact made. The declarations relied upon are entirely too loose and vague to prove an inter vivos gift. Such declarations do not constitute clear and convincing evidence of an inter vivos gift.

James Naccarato, an employe of the company, testified, p. 63a: "Well, he told me that he had already given it to Alex and it was already in a safety deposit box with -- he didn't tell me the exact figures but somewhere around $100,000.00 for a building and as long as I got along with him, my job was secure."

J. H. Waggoner, also an employe of the company, testified, p. 72a: "He had told me that he had already given the stock and money to Alex and it was in a safety deposit box in the bank and Alex had the key for it, and he gave him that in order to build a new plant."

Gerald A. Perella, a salesman of the Virginia Dare Extract Company, testified concerning the date of the alleged declarations. When questioned as to the time of the last conversation about the gift of the stock, the witness said it was, p. 96a: "Just a little before he died -- a good many months -- a few months before."

He also testified, p. 97a: "He told me on several occasions he had given the stock to Alex and had given him the key to the safety deposit box and that it was Alex's."

Plaintiff maintains that since three witnesses testified in the vague and loose language above recited that decedent stated that he had given the stock to plaintiff, the proof of delivery was established. Claimant relies upon the legal principal that when a donor declares that he has given a gift at a previous time, it is implied that delivery and every other formality necessary to create a complete gift has taken place. Counsel for appellee cites Malone's Estate, 38 Leg. Int. 393; Jacques v. Fourthman, 137 Pa. 428, 20 A. 802; Kulp

[ 368 Pa. Page 385]

Considering the evidence as a whole, proof of the alleged inter vivos gift is not sufficiently clear and convincing. The testamentary provisions were made in order to avoid the possible withdrawal of the license by the company which would have rendered the stock worthless. Without additional proof, it is difficult to discern why decedent would by will grant the licensor corporation the right to purchase the stock but at the same time secretly make an inter vivos gift of it to claimant, which gift, if the apprehensions of the decedent were as well founded as he considered them, would be worthless. As the licensor corporation disapproved of a gift of the stock to claimant, it would be immaterial whether such alleged gift was testamentary or inter vivos. Under all the facts and circumstances in this case the gift was not clearly and sufficiently proven.

The judgment is reversed.


The judgment is reversed.


Under the testimony adduced, the jury's verdict established that the decedent declared upon a number of relevant occasions in the last year of his life that he had given to Alex Tomayko, the claimant, the Coca-Cola stock here in controversy. The majority opinion discards the donor's declarations in such regard as being "too loose and vague" and states that "... there is insufficient evidence establishing with necessary preciseness just when, where or under what circumstances such declarations were made...." On the contrary, I suggest that the testimony does do just that and with particularity. Reference need be made to no more than

[ 368 Pa. Page 387]

    the testimony of James Naccarato, one of the three witnesses to the declarations.*fn1

[ 368 Pa. Page 388]

What the decedent told Naccarato was not mere idle or even casual talk. Naccarato was considering taking a steady job with the Coca-Cola Bottling Company of Charleroi and wanted some assurance as to the prospective permanency of the employment. He had worked for the Pittsburgh Steel Company for fourteen years and, before changing positions, he wanted, as his testimony discloses and the circumstances authenticate, some indication of security; he didn't want merely to lose his seniority rights with the steel company. It was in such relation that Swearingen told him that he had given his stock in the Coca-Cola Bottling Company of Charleroi to Alex (Tomayko) and that as long as Naccarato got along with Alex he would be secure in his position. The first time Swearingen told Naccarato that he had given Alex the stock was in the spring of 1947 and the last time was in March 1948, shortly before Naccarato accepted employment with the Charleroi company. Swearingen died there months later, on June 24, 1948. The decedent's like declarations, as testified to by the other two witnesses, were not earlier than 1947. The significance of the time of their utterance will appear later.

The testimony amply supports a finding that the decedent had declared his completed gift to Alex. The jury accredited the witnesses thereto, as was its right, and the trial judge who saw and heard them approved the finding. To ignore the factual implications of the

[ 368 Pa. Page 389]

    jury's verdict is an unwarranted judicial invasion of the appropriate fact-finding function. In reviewing the record now before us, we should therefore start with the established fact that the decedent declared at relevant times in 1947 and 1948 that he had given to Alex his stock in the Coca-Cola Bottling Company of Charleroi which was in a safe deposit box to which Alex had a key.

The rule has long been recognized and applied in this State that declarations by a donor that he has already consummated his gift imply as a matter of law, and are therefore competent evidence of the fact, that delivery and every other essential to the creation of a valid gift were performed.

In a well considered opinion by Judge PENROSE for the Orphans' Court of Philadelphia County in 1880 in Malone's Estate, 8 W.N.C. 179, 182, it was held that "... the delivery may be proved by the declarations of the donor, just as the gift itself may be; and when the donor declares that he had given at a previous time, and that the donee had then become the owner, it is implied that delivery, and indeed every other formality necessary to create a complete gift, had taken place. The law always presumes knowledge of its requirements." The learned jurist further stated (pp. 181-182) that "It is clearly shown by the American authorities, if not also by the English, that any act on the part of the owner of a chose in action, showing not only a present intention to transfer, but that he regarded himself as having carried such intention into effect, is sufficient, and that no written evidence of the transaction is required." This court affirmed per curiam (sub nom. Malone's Appeal, 38 Legal Intelligencer 303) "... on the opinion of the learned Judge of the court below...."

The Malone case has since been quoted from with approval a number of times and has never been departed

[ 368 Pa. Page 390]

    from or qualified: see Kulp v. March, 181 Pa. 627, 633 et seq., 37 A. 913; Leitch v. Diamond National Bank of Pittsburgh, 234 Pa. 557, 567, 83 A. 416; Sherman v. Stoner, 78 Pa. Superior Ct. 189, 193.

In Leadenham's Estate, 289 Pa. 216, 222, 137 A. 248, "... seven well-known residents of Franklin, friends of the doctor [donor], testified to conversations in which he said, in effect, that he had given Mrs. Austin the stock certificates and placed them in a box in th Franklin Trust Company's vault, which he had rented for her" (Emphasis supplied). This court held that the question of a gift of the stock was for the jury. Indeed, a mere implication by an alleged donor that a gift has been executed is sufficient to make the meaning of the donor's words a matter for the jury's interpretation on the issue of a gift: see Jacques v. Fourthman, 137 Pa. 428, 432, 20 A. 802. There the following questions were asked and answered, -- "What did the decedent mean when he said 'Julia, where are those notes I gave you?' Did he mean that he had given them to [her]? Certainly, the court cannot say, as a matter of law, that he did not. The word used was entirely appropriate to express the fact of a gift. The actual meaning of the declarant must be determined by the jury, and if they decided that a gift was meant, could they not lawfully do so?"

Nor is the integrity of an executed gift impaired in the slightest degree by the fact that the donor has access to the safe deposit box where the gift property is kept or, if shares of stock, that they continue to stand in his name. In Pyewell's Estate, 334 Pa. 154, 160, 5 A.2d 123, Chief Justice (then Justice) DREW said for this court, "Since the gifts of the property in question were fully executed by the donor, neither the fact that she [the donor] had access to the safe where the property was kept nor her subsequent receipt of dividends on this stock would invalidate the transaction: Kaufmann's

[ 368 Pa. Page 391]

    by a codicil of August 10, 1946, he revoked that bequest and in lieu thereof directed his executors to give the Coca-Cola Company of Pennsylvania first opportunity to buy the stock at its fair and reasonable value. The evidence clearly shows that this testamentary change was made not because of any desire on Swearingen's part, but actually contrary to his wishes, at the urgent insistence (veritably a demand) of the Coca-Cola Company of Pennsylvania to which the Charleroi company was beholden for its distributing franchise. In fact, the attorney for the Pennsylvania company (or the parent Coca-Cola Company of Delawere) prepared a draft of the change in Swearingen's will with respect to his stock in the Charleroi company, which the Pennsylvania company required, and intended to come to Charleroi to have the codicil "re-written and the will re-executed so that they would have the right to buy the stock." Swearingen, fearful of losing his distributing franchise if he continued to refuse to make the change in his will required by the licensing company, give in to its demand and executed the codicil. But, he contemporaneously confided to a friend that "Alex would be taken care of." And, it is undisputed that his kindly feeling and attitude toward Tomayko never underwent any change but endured undiminished to the day of the decedent's death. A significant thing is that the declarations of the decedent, as testified to, that he had given Alex the stock (which he was at liberty to do despite the codicil) were all made subsequent to the execution of the codicil of 1946 and its republication of February 16, 1947. It cannot, therefore, be said as a matter of law, on the basis of

[ 368 Pa. Page 393]

    the testamentary writings, that the decedent did not in his lifetime give Tomayko the stock as he acknowledged he had. The question of the gift was still a matter for the jury to resolve.

I fail to understand how the trial court can possibly be convicted of error for refusing the defendants' motion for judgment n.o.v. Accordingly, I dissent.

"A. He said that Alex was given the stock and that there wasn't anybody could take it off of hom."

*fn2 The bequest was to "Alex. A. Tomayko, who for many years has been a faithful servant and employe of the Coca Cola Bottling Company and has been of great help and assistance to me in the operation of the said company...."

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.