Appeal from decree of Court of Common Pleas of Allegheny County, April T., 1961, No. 3283, in case of Arthur Raesner v. Nellie Heinsius.
David C. Baldus, with him John A. Metz, Jr., Sigmund Rosenwasser, and Metz, Cook, Hanna & Kelly, for appellant.
James E. McLaughlin, with him John M. Tighe, and McArdle, Harrington, Feeney & McLaughlin, for appellee.
Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this dissenting opinion.
This is an appeal from the decree of the lower court directing defendant, in his capacity as administrator of the estate of Nellie Heinsius, deceased, to pay over to plaintiff the sum of $40,100, which amount the court determined was held by the deceased as constructive trustee for plaintiff at the time of her death.
As found by the chancellor, the facts are as follows: Over some twenty years, plaintiff had acquired the practice of leaving large sums of money for safe keeping with decedent's husband who kept the money in a Pittsburgh bank in safe deposit box number G-392, which he held jointly with his wife. After the death of decedent's husband, the money entrusted to him was returned to plaintiff.
On February 6, 1958, decedent changed the designation of her individual safe deposit box number G-479 at the same bank to the joint names of plaintiff and herself. During that month real estate belonging to plaintiff was sold, and the proceeds were sent to plaintiff in the form of certified checks totaling $49,500. These checks were cashed by decedent, and the proceeds -- $40,000 in one thousand dollar bills, $9,000 in one hundred dollar bills, and $500 in fifty dollar bills -- were placed by decedent in the jointly held safe deposit box. The serial numbers of the forty one thousand dollar bills were recorded by the bank, in compliance with bank policy, at the time the bills were paid out to decedent. Between February 6, 1958 and May 25, 1959, decedent gained entrance to the box on eight occasions, upon three of which she also entered a safe deposit box at the same bank held in the names of herself and her son, the present defendant. Plaintiff entered
box G-479 on only two dates, September 14, 1959 and September 17, 1959. On September 14, 1959, plaintiff notified decedent that the money that had been placed in the safe deposit box number G-479 was missing. Decedent denied having any knowledge of the disappearance.
Decedent rented a third safe deposit box at another bank, where she also maintained checking and savings accounts. From June 3, 1957 until her death on March 12, 1963, she was the only person having access to that box. Following her death the box was found to contain $25,000 in one thousand dollar bills and $6,700 in one hundred dollar bills. Twenty-three of these one thousand dollar bills were negotiated by defendant on April 17, 1963 and were found to bear serial numbers identical with twenty-three of those recorded in February 1958. It was also established that eight one thousand dollar bills were received by the Federal Reserve Bank -- three on December 19, 1959 and five on April 14, 1960 -- from the bank where decedent maintained her individual safe deposit box and her checking and savings accounts. The serial numbers on all eight bills matched those borne by eight of the bills paid over to decedent in February 1958.
Before she died, depositions of decedent were taken. In her depositions, she denied having taken the money and claimed that on one occasion she withdrew $9,400 from the safe deposit box number G-479 and handed it over to plaintiff so that he could satisfy a tax liability. The chancellor ruled that under the Dead Man's Act, Act of May 23, 1887, P. L. 158, § 5(e), 28 P.S. § 322, plaintiff was ...