Appeal, No. 38, Jan. T., 1958, from decree of Court of Common Pleas of Lackawanna County, May T., 1953, No. 22, in equity, in case of Elizabeth Zahorsky, administratrix of the estate of John Zahorsky, deceased v. Dorothy Leschinsky et al. Decree affirmed.
Carl Carey, with him Bialkowski, Bialkowski & Bialkowski, for appellants.
Morey M. Myers, with him Carlon M. O'Malley, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
John Azhorsky, decedent, in 1929 became separated from Vera Zahorsky, his wife, and remained separated until decedent's death on November 9, 1951. Decedent died intestate, leaving to survive him his widow Vera Zahorsky, two daughters, - Elizabeth Zahorsky*fn1 and Irene Zahorsky Rodrigues, - and a son - George Zahorsky. Elizabeth Zahorsky, appellee, is decedent's personal representative.
While separated decedent formed an attachment for one Anna Leschinsky, a widow with three children. In 1938 Anna Leschinsky rented a property known as No. 115 Foley Street, Old Forge, Lackawanna County, and decedent moved into the property and became a member of the Leschinsky household. While decedent paid no stipulated amount either for board or rent he did contribute sums to Anna Leschinsky for the household support. In 1945 Anna Leschinsky discussed the purchase of this property with decedent, she having in her possession a sum of money consisting of savings from
contributions made to her by decedent and money contributed by her daughter. Up until November 1946 the latter made regular contributions to her mother.
In October 1945 decedent decided to purchase the Foley Street property. To that end he consulted an attorney whom he instructed that he did not want his wife to have any interest in the property. It was decided to take title in the names of Walter and Anna Lynchensky, decedent's brother-in-law and sister, who would then execute a mortgage for the balance of the purchase price and thereafter convey the premises to Dorothy Leschinsky. In discussing the ultimate grantee of this property decedent rejected the idea of designating any of his children because of their mother's influence upon them, stating he was satisfied with Dorothy Leschinsky as the grantee "because he knew that if at any time in the future I should ask Dorothy to deed the property to me she will do so." Neither Anna Leschinsky nor Dorothy Leschinsky took any part in the negotiations leading up to or at the time of the conveyance.
On October 15, 1945 title to the property was transferred to Lynchenskys from the Russian Orthodox Catholic Mutual Aid Society. The Lynchenskys then executed a mortgage on the premises in favor of the Old Forge Bank. The following day Lynchenskys conveyed title to Dorothy Leschinsky subject to the mortgage who has been the title holder ever since that date. Of the purchase price of $4200, decedent paid $100 as earnest money and $2100 by a cashier's check purchased from the Old Forge Bank; the balance of $2000 was financed by the mortgage. To provide the $2100 decedent withdrew $807.53 from his personal savings account and obtained $1300 from Anna Leschinsky which the court below found "came from a fund which Anna Leschinsky had been saving for the joint benefit of
John Zahorsky and herself, which at the time of the property purchase was over $1500. The fund was made up in large part from the periodic contributions made to the household by John Zahorsky." The court below found no evidence that at any time after October 16, 1945 Dorothy Leschinsky, wife-appellant, acknowledged any beneficial interest in the property other than her own. Subsequent to the purchase date decedent continued to live in the property and to make contributions to the household expenses. Another tenant of part of the property continued his tenancy and to pay rent to Anna Leschinsky. All taxes, utility service charges, repair and maintenance bills were billed to Dorothy Leschinsky, but paid by Anna Leschinsky from funds in her possession, including contributions by ...