Appeal, No. 190, Jan. T., 1956, from decree of Orphans' Court of Montgomery County, Nov. T., 1954, No. 54,983, in re estate of Joseph P. Russell, deceased. Decree reversed.
Paul A. Wolkin, with him Leonard Sarner and Wolkin, Sarner & Cooper, for appellant.
E. P. Hannum and Ronald Souser, with them Thomas M. Hyndman and Souser, Schumacker, Kleeb & Lunkenheimer, for appellees.
Before Stern, C.j., Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The question here is whether the attempted proof of a gift inter vivos was sufficient to meet all factual and legal requirements. The court below held that it was; in our opinion it was not.
The essential facts are not in dispute and are as follows:
The decedent, Joseph P. Russell, was married in 1915 to the present appellant, Lillian Russell. He deserted her in 1937 and in 1939 she obtained in New York a judgment of separation from bed and board with an order for her support and in 1943 another order for support in the Municipal Court of Philadelphia. He fell considerably into arrears and on November 4, 1952, appellant's counsel wrote to him stating that he had been retained by his wife to represent her and asking that he or his attorney communicate with him for the purpose of discussing the matter. Six days later, on November 10, 1952, decedent issued a check on a Chicago bank in the sum of $55,000 to the order of Hildegarde E. Laier, an amount which constituted practically his entire liquid assets.
Miss Laier, then aged 22, was the daughter of Mr. and Mrs. Emil A. Laier, in whose family decedent had lived from the time he abandoned his wife, Mr. Laier and he having been employed in the same industrial establishment; there is no question but that he was on intimate terms with the Laier family. Miss Laier testified in regard to the conversation attending the delivery to her of the $55,000 check as follows:*fn1
"Uncle Joe [the decedent] came into my room and said that he had fifty-five thousand dollars that he wanted me to take and put in my bank account, and, at a later date, he might possibly ask for some of the money back. And, whatever he left - whatever he left to me, was to be split between my brother and myself, and it was a gift from him; and I was to please keep the whole transaction a secret. And that was all that was said." She explained further: "In November he did tell me, sir, that he would take a portion of the money, and, what was left in my account was to be a gift, to be split between my brother and myself. The amount was not stated."
Miss Laier endorsed the check and gave it right back to decedent, who deposited it in her account in the bank. She did not add the amount to the balance in her check book but merely noted it in the back as a separate item against the initials, "J.P.R.," and she never made any drawing against it except as hereinafter stated. No ...