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FELL ESTATE (03/24/52)

March 24, 1952

FELL ESTATE


Appeal, No. 2, Jan. T., 1952, from decree of Orphans' Court of Northampton County, 1946, No. 57, in Estate of Joseph Fell, deceased. Decree affirmed.

COUNSEL

S. Maxwell Flitter, with him Everett Kent, for appellant.

Francis H.S. Ede, with him Edmund P. Turtzo, for appellee.

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

Author: Musmanno

[ 369 Pa. Page 598]

OPINION BY MR. JUSTICE MUSMANNO

On June 26, 1943, Joseph Fell opened a savings account in the First National Bank of Pen Argyl, Pennsylvania, with a deposit of $1250.00. On June 9, 1944, while depositing an additional $720, he had title in the passbook changed to the names of "Joseph Fell or Mary E. Sullivan." He obtained at the same time from the bank teller a so-called signature card which recited: "We, the undersigned, hereby declare that we are joint owners of the money deposited in the account which we have opened in our names in the First National Bank of Pen Argyl, Pa., in savings account No. 6608, and in consideration of said mutual deposit we do further declare that said funds, together with any additional deposits of money made by either of us in said account, as well as any interest accruing thereon, shall be, and are our joint property to be held

[ 369 Pa. Page 599]

    for us as joint owners with the right of survivorship..." Both Joseph Fell and Mary E. Sullivan signed this card and it was returned to the bank.

On December 21, 1944, Joseph Fell died intestate. Mary E. Sullivan sought possession of the bank took from the administrator William H. Dunbar who had obtained it by virtue of his authority as administrator. When Dunbar refused to surrender the book, Miss Sullivan instituted an action of replevin in the Court of Common Pleas and a hearing on the contested issue ensued. The notes of testimony, by agreement of counsel, were certified to the Orphans' Court which decided that Mary E. Sullivan had legal title to the passbook and the funds in the bank account as surviving joint tenant under the contract of deposit executed by Fell and Sullivan. From that decision the administrator appealed to this Court.

The administrator-appellant contends that the double fact that the money in the bank was deposited by Fell alone and that the passbook was found in Fell's safety deposit box defeats any claim by Miss Sullivan that she is entitled to the book and the funds as survivor of a joint tenancy. In this contention the administrator is right, so far as it goes. Romig v. Denkel et al. v. Exr., 326 Pa. 419, 192 A. 657. But this contention ignores the most important feature of the case, namely, the contract by Joseph Fell and Mary E. Sullivan. And the burden in a situation of this kind is upon the administrator to show, by evidence, which is clear, precise and indubitable, that the contract is not what it plainly says it is. Montgomery v. Keystone Savings & Loan Assoc., 150 Pa. Superior Court 577, 29 A.2d 203.

On the other hand, a burden rested upon the claimant to demonstrate that she was the beneficiary of a legitimate gift inter ...


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