April 21, 1958
Appeal, No. 16, March T., 1958, from decree of Orphans' Court of Butler County, Dec. T., 1955, No. 225, in re estate of John L. Balfour by Edward D. Balfour. Decree reversed.
James E. Marshall, with him Marshall, Marshall & McNamee, for appellant.
Leonard I. Feldstein, with him Michael M. Mamula, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
[ 392 Pa. Page 301]
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This appeal presents an oft litigated issue: Whether under the circumstances a gift inter vivos of a bank account has been established.
John L. Balfour, a resident of Butler County, died intestate, August 12, 1955.
[ 392 Pa. Page 302]
Sometime prior to 1930 decedent opened in his own name a savings account in the Mars National Bank of Mars, Pa. Approximately twenty to twenty-two years later - between October 1950 and September 26, 1952 - the name of Letitia Seitz, one of decedent's nine children, was added to this account which was then styled "John L. Balfour or*fn1 Letitia Seitz."*fn2 Neither a signature card, withdrawal agreement, nor a survival agreement was ever signed by the parties. The bank did not require any written agreement in connection with its savings accounts.
In 1953 six withdrawals, totaling $325, were made from this account - all by decedent alone. Only one deposit - $500 in 1954 - was made in the account; the identity of the person making this deposit was not established. For approximately ten years prior to his death Balfour had lived with one of his sons and there is no evidence that he had ever lived with Letitia Seitz or that she had performed any unusual or particular services for him. Subsequent to decedent's death the passbook for the account was found among his papers, the account then having a balance of $1918.46.
Balfour's administrator, claiming the money belonged to the estate, petitioned the Orphans' Court of Butler County for a declaratory judgment. Letitia Seitz, although she did not so aver in her answer to the petition for declaratory judgment, claimed the account as gift inter vivos to her on the basis on an alleged, but unproved, oral agreement between herself and decedent.
After a hearing, the Court below concluded as a matter of law that decedent had created a joint tenancy with the right of survivorship in the savings account,
[ 392 Pa. Page 303]
that he had made a gift inter vivos of the account to Letitia Seitz and that upon decedent's death the funds represented by the account belonged to Letitia Seitz. From the decree dismissing the petition for a declaratory judgment this appeal was taken.
The factual record in the Court below was: (1) approximately three to five years prior to decedent's death a savings account in the name of "John L. Balfour" was changed to read "John L. Balfour or Letitia Seitz"; (2) according to a former bank teller Letitia Seitz's name was added to the account at the instruction of and in the presence of both decedent and Letitia Seitz; (3) at that time the teller explained to both parties that after either party died the account would belong to the sruvivor; (4) neither decedent nor Letitia Seitz made any recalled response to the teller's explanation; (5) no evidence was produced that Letitia Seitz ever deposited any of her own money in the account; (6) all the withdrawals from the account were made by decedent alone; (7) the bank book was in decedent's possession at the time of his death; (8) under the bank's regulations (set forth in the passbook) no money could be deposited in or withdrawn from the account without the presentation of the passbook.
In Martella Estate, 390 Pa. 255, 258, 135 A.2d 372, Mr. Justice BELL, speaking for this Court, recently said: "Cases involving joint bank accounts, joint savings accounts ... have proved vexing. Certain pertinent principles of law are now well settled by recent decisions of this Court, although their application to the different factual situations which so frequently arise is often difficult."
These well established principles of law, as pertinent herein, are: (1) the mere fact that money is deposited to the account of the owner "and" another or the owner "or" another does not, standing alone, prove
[ 392 Pa. Page 304]
a gift inter vivos;*fn3 (2) the burden is on the claimant to establish a gift inter vivos*fn4 "by clear and convincing evidence";*fn5 (3) to constitute a gift inter vivos there must be shown "such an actual or constructive delivery to the donee (a) as to divest the donor of all dominion and control, or (b) if a joint tenancy is created, as to invest in the donee so mush dominion and control of
[ 392 Pa. Page 305]
the subject matter of the gift as is consonant to a joint ownership of interest therein".*fn6
Weighed in the light of these principles claimant's evidence, both in quantity and quality, falls far short of the quantum of proof required to establish a gift inter vivos. All that claimant has shown is the mere fact that her name was added to the account - "John L. Balfour or Letitia Seitz" - and at the that time the bank teller gave his opinion to both decedent and Letitia Seitz as to the legal effect of the change in nomenclature of the account without evoking any recalled response from either decedent or claimant.*fn7 Claimant failed to prove either donative intent and/or delivery.
Isherwood, Exr. v. Springs-First National Bank, 365 Pa. 225, 74 A.2d 89, directly rules the instant case. In the Isherwood case the decedent opened a savings account in the joint names of herself and her daughter, the passbook reading "Mrs. Jennie Isherwood or Ruth Dowler". Decedent retained possession
[ 392 Pa. Page 306]
of the passbook until her death.*fn8 There was no evidence of any signature card or that such had been executed.*fn9 The bank's ledger sheet for this account had the following inscription: "payable to either or the survivor as joint tenants and not as tenants in common". There was oral testimony by the bank cashier that decedent wanted the account fixed so that in case of her death it would go to the daughter and that decedent understood that either one of them could draw it.*fn10 Mr. Justice (now Chief Justice) JONES stated: "The evidence relied upon by the claimant in her effort to support the jury's implied finding that the bank account in suit was a joint estate with the right of survivorship fails to meet the legal requirements in the circumstances." (p. 229). In that case it was further stated, at p. 231: "... the claimant failed to produce evidence of the probative character required to sustain her burden of proving that the decedent affirmatively expressed or evidenced an intention to give her daughter at the time of the opening of the account ... a presently vested interest therein or that she executed any such intention by an equivalence of delivery. Indisputably, there was no actual delivery of the passbook; Mrs. Isherwood retained possession thereof throughout her lifetime: ... Nor was there either signed signature card or written agreement of the parties with respect to the ownership of that savings account:
[ 392 Pa. Page 307]
.... Just as in the Flanagan case, the memoranda on the bank's ledger sheet '... were made by an [employee] of the bank without evidence that the notations were made pursuant to direction given by decedent.'" See also: Flanagan v. Nash, 185 Pa. 41, 45, 39 A. 818; Mardis, Admrx. v. Steen, 293 Pa. 13, 16, 141 A. 629, supra; Martella Estate, 390 Pa. 255, 135 A.2d 372, supra; In Re: Estate of Crist, 106 Pa. Superior Ct. 571, 580, 162 A.2d 478, supra.
Dempsey et al. v. First National Bank of Scrantion, 359 Pa. 177, 58 A.2d 14; Fell Estate, 369 Pa. 597, 87 A.2d 310, supra; Mardis, Admrx. v. Steen, 293 Pa. 13, 141 A. 629, supra; Grady v. Sheehan, 256 Pa. 377, 100 A. 950, supra, relied on by appellee, do not support her position. In all those cases, either by a signature card or other written agreement, the essentials of a gift inter vivos were proven.
Decree reversed. Costs on appellee.