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BROZENIC ESTATE (11/24/64)

SUPREME COURT OF PENNSYLVANIA


decided: November 24, 1964.

BROZENIC ESTATE

Appeals from decree of Orphans' Court of Allegheny County, No. 908 of 1960, in re estate of Matt Brozenic, deceased.

COUNSEL

Harry J. Schmitt, for appellants, in No. 203, and for appellees in No. 265.

Louis Z. Marohnic, for appellee in No. 203.

Martin M. Sheinman, for appellants in No. 265.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 416 Pa. Page 205]

Matt Brozenic died testate in Allegheny County on February 15, 1960. A childless widower, over 80 years of age, his nearest kin were nephews and nieces.

Pursuant to a stipulation of facts,*fn1 the auditing Judge ruled:

(a) That the claim of Anna Jarmek to $20,711.60, which was in the account at Foster Federal Savings and Loan Association in the name of decedent or Anna

[ 416 Pa. Page 206]

Jarmek as joint tenants with right of survivorship, should be sustained.

(b) That the claim of Mara Bosiljevac for the amount on deposit in the joint account at Pittsburgh National Bank and of Barbara Savor for the amount on deposit in the joint account at Millvale Savings and Loan Association should be dismissed.

Brozenic's executrices appealed from the Decree which sustained Anna Jarmek's claim, and Bosiljevac and Savor appealed from the Decree which dismissed their respective claims.

Each of the claimants bases her claim on alleged gifts inter vivos from Brozenic. Repeatedly in recent years we have reviewed and reiterated the principles relating to such gifts, particularly where the subject of the gift was a jointly owned bank account or a savings association account: Bunn Estate, 413 Pa. 467, 198 A.2d 518; Fenstermaker Estate, 413 Pa. 645, 198 A.2d 857; Sivak Estate, 409 Pa. 261, 185 A.2d 778; Cox Estate, 405 Pa. 444, 176 A.2d 894; Rogan Estate, 404 Pa. 205, 171 A.2d 177; Berdar Estate, 404 Pa. 93, 170 A.2d 861; Amour Estate, 397 Pa. 262, 154 A.2d 502; Martella Estate, 390 Pa. 255, 135 A.2d 372; King Estate, 387 Pa. 119, 126 A.2d 463; Furjanick Estate, 375 Pa. 484, 100 A.2d 85; Fell Estate, 369 Pa. 597, 87 A.2d 310.

In Bunn Estate, 413 Pa., supra, the Court quoting from numerous recent decisions, said (pages 469-470): "'. . . ". . . '"'. . . "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.

[ 416 Pa. Page 207]

"'. . . In Berdar Estate, 404 Pa. 93, 170 A.2d 861, the Court said (page 95): ". . . 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 Estate, [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.'

". . . 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 . . . ."

Furthermore, a deposit accompanied by such a writing, but nothing more (i.e., not a complete agreement*fn2) is considered so incomplete or equivocal as to permit the admissibility of parol evidence. Furjanick Estate, 375 Pa., supra; Fell Estate, 369 Pa. 597, 87 A.2d 310.

We shall now apply these principles to the three appeals before us.

The Claim of Anna Jarmek

For many years prior to January 7, 1959, Brozenic had been the owner of a savings account at Foster Federal

[ 416 Pa. Page 208]

Savings and Loan Association. On that day he transferred said account into the names of Matt Brozenic or Anna Jarmek, as joint tenants with the right of survivorship. At that time, Brozenic received from the Association two cards, (1) a proxy card for the voting of the shares represented by such account at shareholders meetings, and (2) a signature card, which pertinently read:

"Joint Savings Account Account No. S 46345

"(subject to order of either)

"Brozenic Matt

"Jarmek Anna

"The undersigned hereby apply for a savings account in the Foster Federal Savings and Loan Association in the joint names of the undersigned as joint tenants with the right of survivorship*fn3 and not as tenants in common. Specimens of the signatures of the undersigned are shown below and the Association is hereby authorized to act without further inquiry in accordance with writings bearing either such signatures, it being understood and agreed that any one of the undersigned who shall first act shall have power to act in all matters related to the membership and any account in said Association held by the undersigned whether the other person or persons named in the account be living or not."

Anna was not in fact decedent's niece but was the daughter of one of his nieces. Brozenic had never seen Anna, who was very many years younger. In 1959 Anna was living in Paris, France, awaiting admission to the United States.

Disposition

Decree affirmed.


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