Appeal, No. 247, Jan. T., 1957, from decree of Orphans' Court of Clinton County, No. 8582, in the matter of the estate of Salvatore Martella, sometimes known as Samuel Martella, deceased. Decree reversed; reargument refused November 8, 1957.
Morris Klewans, for appellant.
Vincent M. Casey, with him Margiotti & Casey, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Samuel Martella died intestate August 26, 1954. He was survived by six children. A small metal box was found after his death in his home and opened in the presence of all of his children (with one exception).
It contained a number of shares of stock which were made out in his name, a number of shares of stock which were made out in the name of himself and his (deceased) wife as joint tenants with right of survivorship; and it contained the stocks here in controversy which were made out at decedent's oral directions (to his broker) in the name of "Samuel Martella and [his son] William S. Martella as joint tenants with right of survivorship and not as tenants in common". These stocks which were claimed by William S. Martella as an inter vivos gift had a market value of approximately $14,361.25. The balance of Martella's estate amounted to approximately $46,560.52. All of the stocks claimed by William had been purchased by decedent with his own money and were kept together with decedent's other securities in a small metal box which decedent always had in his possession and to which he alone had access, with the exception that several months before his death he gave a key to the box to his daughter Natalie.
Claimant never had actual possession of the stocks in controversy, or control of or access to the box in which decedent kept them. The income from all the stocks, including those here in controversy, was received and kept by decedent as his property, except in a few instances where the dividend checks were delivered to William who promptly turned them over to the decedent. All of the income from all of the securities, including the stocks here in controversy, was returned by the decedent in his income tax returns as his property and a tax was paid thereon by him. Decedent could not read or write English, but could sign his name.
Decedent made several statements to Natalie, two of which are pertinent. Several months before his
death, Mr. Martella said to Natalie: "... you hold this key, it belongs to the box where the money and all the securities are and after I go, it will be shared to all of you, because I am leaving it to everybody what I have." About two months before his death, he said to Natalie: "Every one of his children and it didn't ...