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BERDAR ESTATE. (05/22/61)

May 22, 1961

IN RE BERDAR ESTATE.


Appeal, No. 66, March T., 1961, from decree of Orphans' Court of Allegheny County, No. 1151 of 1958, in re estate of Mitro Berdar, deceased. Decree affirmed.

COUNSEL

Francis Taptich, for appellant.

R. J. Lucksha, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 404 Pa. Page 93]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

This is a controversy over the ownership of $11,800, the amount on deposit in the First Federal Savings and

[ 404 Pa. Page 94]

Loan Association of Homestead (Association) in a joint savings account with the right of survivorship held in the names of Mitro Berdar (Berdar) and Mary Malutinok (Malutinok).

Berdar died, intestate, on February 25, 1958, survived by a wife and one grandchild, both of whom reside within the jurisdiction of the Soviet Union. Berdar's personal representative, by petition and citation under § 301(13) of the Orphans' Court Act of 1951,*fn1 instituted an action in the Orphans' Court of Allegheny County (before Judge Cox) to determine the title to this savings account.*fn2 It was averred that Berdar was the sole owner of the amount on deposit in the savings account and "That whatever color of title [Malutinok] alleges to have in the disputed fund was obtained by her through fraud, accident and mistake due to the illiteracy, ignorance and physical condition of... [Berdar]" and that the creation of the account was without donative intent. Upon issue joined and hearing held, Judge COX entered a decree disallowing Malutinok's claim of ownership and awarded the amount in the savings account to Berdar's estate upon the ground the creation of the savings account was a mistake and not accompanied by donative intent on Berdar's part. From the decree of the court en banc dismissing exceptions to Judge COX's decree, Malutinok has appealed.

Malutinok's argument is three-fold: (1) that the reception in evidence of the testimony presented by Berdar's personal representative violated the parol evidence rule; (2) that such testimony was irrelevant and incompetent; (3) that, assuming, arguendo, the relevancy,

[ 404 Pa. Page 95]

    competency and admissibility of such testimony, such testimony lacks the quality of proof - clear, precise and convincing - necessary ...


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