Appeal, No. 151, Jan. T., 1954, from decree of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1952, in Equity, No. 6637, in case of Jacob Chadrow, Exr., Estate of William Chadrow, deceased, v. Jennie Kellman and Gimbel Brothers Bank &Trust Co. Decree affirmed. Bill in equity. Before SMITH, P.J. Adjudication filed finding for plaintiff; exceptions to adjudication dismissed and final decree entered. Defendant Kellman appealed.
Edwin P. Rome, with him Julian E. Goldberg and Gray, Anderson, Schaffer & Rome, for appellant.
Harry B. Berk, with him Morris B. Levitt, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Appellant is the claimant of the contents of a safe deposit box in the joint names of a decedent and her own. The court below ruled that claimant did not establish ownership of the contents under a valid inter vivos gift since there was no delivery, actual or constructive, sufficient to divest donor of all dominion over such property and invest donee with ownership, possession or control. The appeal followed.
The hearing judge made the following findings of fact, which are not disputed:
"On May 4, 1950, William Chadrow [decedent] rented a safe deposit box, No. D1777, in the Gimbel Brothers Bank and Trust Company of Philadelphia, at which time two keys for the said deposit box were delivered to him by the bank with access to said box restricted to him.
"At this time the said William Chadrow was a widower residing at 4517 Old York Road, Philadelphia.
"At the said time Jennie Kellman, the defendant, [appellant] was a niece of the said William Chadrow and resided at 725 W. Moyamensing Avenue, Philadelphia.
"For some time subsequent to the death of his wife on November 11, 1950, the said William Chadrow visited the home of the defendant three or four times a week where he ate his evening meals prepared by her, at no cost to him.
On June 20, 1951, the said William Chadrow informed
"On June 20, 1951, the said William Chadrow informed his niece, the said defendant, that the next day he would take her to the Gimbel Brothers Bank and Trust Company to make her the joint owner of the contents of the safe deposit box in that bank.
"On June 21, 1951, the said William Chadrow and the defendant, Jennie Kellman, went to the Gimbel Brothers Bank and Trust Company where he and she signed and executed a joint tenancy agreement which was on a form prepared by the said bank.
"The Joint Tenancy Agreement, as executed by the said William Chadrow and Jennie Kellman, on June 21, 1951, is as follows: 'Gimbel Brothers Bank and Trust Company is hereby authorized and instructed to permit access to said box by any (or either) of the undersigned and to recognize such deputy or deputies as any (or either) of the undersigned may appoint as the deputy or deputies of all. It is agreed that each (or either) of the undersigned is the joint owner of
the present and future contents of said box, and that in the event of death of any (or either) of the undersigned, the survivors or survivor shall have the right to withdraw said contents, and upon said withdrawal said bank shall be automatically relieved of any further obligation or responsibility to the heirs, legatees, devisees, or legal representatives of the deceased.' (Signed William Chadrow, Jennie Kellman.)
"In a rider attached to said contract it was stated: 'I hereby acknowledge to have received two keys to Box 1777 in the Safe Deposit Department of Gimbel Brothers Bank and Trust Company and agree to be bound by rules and regulations appearing above.' This rider was executed by Wm. Chadrow and Jennie Kellman.
"During the lifetime of the said William Chadrow he alone exercised the right of access to the said safe deposit box.
"The said Jennie Kellman never had possession of a key to the said box.
"On November 18, 1952, the said William Chadrow died.
"At that time, the contents of the said safe deposit box consisted of a Last Will and Testament executed by the said William Chadrow, dated January 8, 1949 (which was admitted to probate by the Register of Wills of Philadelphia County on January 21st, 1953, granting Letters Testamentary to the plaintiff as executor) and the sum of $3,180 in cash.
"The said Gimbel Brothers Bank and Trust Company refused to turn over the said cash in the sum of $3,180 to either the plaintiff or the defendant until the matter is adjudicated by the Court.
"The said decedent never intended to make an immediate gift inter vivos of the contents of his safe deposit
box so that the defendant would have immediate dominion over the contents of the box.
"The said decedent retained dominion over the contents of the said safe deposit box during his lifetime.
" The said decedent intended to transfer the property contained in his safe deposit box to the defendant to take effect upon his decease but not before."
These findings of fact, which are amply supported by the testimony, establish that claimant never possessed a key to the box, never had access thereto, and that the decedent kept exclusive possession of both keys and solely exercised right of access.
If, as the learned court below found, the decedent intended that any transfer of title was not to be effective until his death, such transfer would constitute a donatio mortis causa. Such a gift is defined as one made by a person in his last illness, or in periculo mortis, subject to the implied conditions that if the donor recover, or if the donee die first, the gift shall be void: Michener v. Dale, 23 Pa. 59; Gourley v. Linsenbigler, 51 Pa. 345. There is not the slightest semblance, under the facts in this case, to a gift mortis causa. Unless this constitutes a valid gift inter vivos the fund forms part of decedent's estate. The distinguished Orphans' Court Judge, CLEMENT B. PENROSE, whose opinion is quoted in Walsh's Appeal, 122 Pa. 177, 15 A. 470, stated the difference in character of gifts mortis causa and inter vivos. He said (p. 180): "The requisites of a gift mortis causa are, that it be made in view of impending death; that by express provision or necessary implication, it is to become inoperative if the anticipated death does not take place or if the donee should die previously; and that the intention of the donor to complete the gift be shown by actual delivery of its subject and the surrender of all dominion over it. It is not however essential, as it
a gift accompanied by delivery, actual or constructive, of a nature sufficient not only to divest the donor of all dominion over the property, but to invest the donee with complete control: Henderson v. Hughes, 320 Pa. 124, 126, 182 A. 392; Fitzpatrick v. Fitzpatrick, 346 Pa. 202, 206, 29 A.2d 790; Tomayko v. Carson, 368 Pa. 379, 383, 83 A.2d 907; Kerwin Estate, 371 Pa. 147, 159 et seq., 89 A.2d 332, and the many cases cited therein.
Cases relating to inter vivos gifts of interests in bank accounts differ from cases involving gifts of contents of safe deposit boxes. In the latter case access may only be had by means of a key. The donee cannot secure possession unless he has a key to unlock the box and take possession of the contents or of the portion which was given to him. Where a depositor in a bank, however, adds the name of and executes and agreement with a donee, under which either might draw from the fund, in whole or part, and the agreement contains wards of an absolute transfer and gift and provides that upon the death of either the survivor becomes the sole owner, such transaction constitutes a valid inter vivos gift. In such case the delivery is actually made since the donee many forthwith withdraw the fund: Mardis v. Steen, 293 Pa. 13, 141 A. 629; Reap v. Wyoming Valley Trust Co., 300 Pa. 156, 150 A. 465; Mader v. Stemler, 319 Pa. 374, 179 A. 719; Culhane's Estate, 334 Pa. 124, 5 A.2d 377; Fell Estate, 369 Pa. 597, 87 A.2d 310; Furjanick Estate, 375 Pa. 484, 100 A.2d 85.Where, however, a bank account is opened with donor's own money and the only right conferred is to withdraw money, there is no inter vivos gift with right of survivorship; Flanagan v. Nash, 185 Pa. 41, 39 A. 818; Zellner's Estate, 316 Pa. 202, 172 A. 715; Romig v. Denkel, 326 Pa. 419, 192 A. 657; Kata Estate, 363 Pa. 539, 70 A.2d
. The mere handling of a bank book, though accompanied by words showing an intention of making a gift, is not a sufficient delivery to constitute a valid gift of the account: Walsh's Appeal, 122 Pa. 177, 15 A. 470; Grigonis's Estate, 307 Pa. 183, 160 A. 706; Kata Estate, supra; Estate of Lewis H. Eshenbaugh, Deceased, 114 Pa. Superior Ct. 341, 174 A. 809.
Tentative trusts need not be considered herein as this doctrine has never been extended to any property other than a savings account, where the donor with his own money opens such an account in his own name in trust for the donee: Ingels Estate, 372 Pa. 171, 177, 92 A.2d 881, and the many cases therein cited.
It, therefore, follows that in order to make a valid inter vivos gift of the contents of a safe deposit box there must be an actual delivery of the contents, or the delivery of a key to the box, to divest donor of his dominion over the property and invest the donee with ownership, possession and control. Where the claimed inter vivos gift is of a bank account, the gift is not completed unless, upon the opening of the account, it constitutes a gift of the fund which entitles the donee to withdraw the deposit in whole or part. ...