March 17, 1964
IN RE BUNN ESTATE.
Appeal, No. 34, Jan. T., 1964, from decree of Orphans' Court of Bucks County, in re estate of Sadie H. Bunn, deceased. Decree affirmed.
Emanuel H. Klein, for appellant.
Peter A. Glascott, with him Bodley & Glascott, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
[ 413 Pa. Page 469]
OPINION BY MR. CHIEF JUSTICE BELL
Appellant claims a bank account as an inter vivos gift from his mother, Mrs. Bunn. Although the decision in this class of case often depends upon the exact wording of the deposit account and the signature card and the agreement, if any, accompanying it, the law and the proof required in such cases are well settled: Sivak Estate, 409 Pa. 261, 185 A.2d 778; Cox Estate, 405 Pa. 444, 176 A.2d 894. In Sivak Eatate the Court said (pages 264-265):
"In our recent decisions we have spelled out the requisite elements of gift inter vivos. In Cox Estate, 405 Pa. 444, 448, 176 A.2d 894, the Court said: '... In Amour Estate, 397 Pa. 262, 154 A.2d 502, the Court reiterated the law laid down in Martella Estate, 390 Pa. 255, 258-259, 135 A.2d 372, and repeated in King Estate, 387 Pa. 119, 122, 126 A.2d 463, and said (page 265): "'"... 'To constitute a valid gift inter vivos ..., two essential elements are requisite: An intention to make an immediate gift and 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 much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein.'"'"' Accord: Secary Estate, 407 Pa. 162, 180 A.2d 572; Balfour v. Seitz, 392 Pa. 300, 140 A.2d 441.
"If this signature card with its phraseology, i.e., joint tenancy with right of survivorship - which as an individual depositor Mike Sewalk signed in 1956 - had been signed by both Mike Sewalk and his son Chester in 1956 or in October, 1959, it would have established prima facie a valid inter vivos gift. In Berdar Estate,
[ 413 Pa. Page 470404]
Pa. 93, 170 A.2d 861, the Court said (page 92): '... When a depositor creates a joint savings account with right of survivorship, and a signature card so stating is signed by both parties, a prima facie inter vivos gift to the other party and of the creation of a joint tenancy with right of survivorship is established: Furjanick Esate, [375 Pa. 484, 100 A.2d 85]; Lochinger v. Hanlon, 348 Pa. 29, 33 A.2d 1.'
"The claimant has the burden of proving a valid inter vivos gift or in the alternative a valid gift mortis causa, and this proof can be established only by evidence which is clear, direct, precise and convincing: Secary Estate, 407 Pa. 162, 167, 180 A.2d 572; Petro v. Secary Estate, 403 Pa. 540, 170 A.2d 325. Cf. also Kadilak Will, 405 Pa. 238, 243, 174 A.2d 870."
Where the account or the signature card state that a joint tenancy with right of survivorship is created, the fact that all the money in the account came from the decedent and that he had possession of the passbook are not sufficient, without more, to defeat this inter vivos gift. It must be recalled that only one person can have actual possession of a passbook and if the regulations of the bank provide that the deposit book or passbook must be presented when a withdrawal is made, such a rule or regulation is for the convenience and protection of the bank and does not change the basic agreement of joint tenancy with right of survivorship: Cox Estate, 405 Pa., supra, and cases cited therein.
Claimant proved that his mother, Mrs. Bunn, was the owner of a bank account which was in her own name; that he obtained from the bank a printed form signature card; and that he went to the hospital approximately two weeks before his mother's death to get her to sign this signature card. This card was lost by the bank, but its contents were proved. The printed card as filled out pertinently stated that the bank
[ 413 Pa. Page 471]
account was in the names of Sadie H. Bunn or J. Calvin Sherman as joint tenants, with the right of the bank to treat the survivor as the sole and absolute owner. The signature of Mrs. Bunn and the claimant (Sherman) to such a card and the valid delivery thereof to the bank would create prima facie an inter vivos gift to the claimant with right of survivorship:*fn* Amour Estate, 397 Pa., supra; Fell Estate, 369 Pa. 597, 87 A.2d 310. However, since such a card is considered to be indefinite or equivocal, or incomplete, parol evidence is admissible to prove Mrs. Bunn's donative intent and a completed gift by her to Sherman.
Claimant proved that at his request, the bank had changed, on its books, the account and the passbook to read "Sadie H. Bunn or J. Calvin Sherman". No notation of joint tenancy or of survivorship was entered on the account or on the passbook. Claimant also proved that he withdrew $2,000 from this account, either shortly before his mother died, or the day after his mother died.
We agree with the Auditing Judge that the testimony on behalf of claimant with respect to Mrs. Bunn's donative intent and particularly in respect to her signature, was too weak to satisfy his burden of proof and establish his claim.
Mr. Justice JONES and Mr. Justice COHEN concur in the result.
Decree affirmed; each party to pay own costs.