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TOMAYKO v. CARSON (10/03/51)

October 3, 1951

TOMAYKO
v.
CARSON, APPELLANT



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.

COUNSEL

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]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

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 ...


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