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PAPPAS ESTATE (03/15/68)

decided: March 15, 1968.

PAPPAS ESTATE


Appeal from decree of Orphans' Court of Lackawanna County, No. 318 of 1966, in re estate of Nick Pappas, also known as Nicholas J. Pappas, deceased.

COUNSEL

George I. Puhak, for appellant.

Frank J. DeSanto, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this concurring opinion.

Author: Bell

[ 428 Pa. Page 541]

On March 23, 1966, Nick Pappas died, unmarried and without any issue. He was survived by three brothers and a sister. His gross estate amounted to $850,000. He left a (lawyer-drawn) will dated August 1, 1963, in which he left the bulk of his estate in trust to provide assistance of various kinds to young men and women of Greek origin, and from decedent's native town of Kremasti, Greece. Neither his brothers nor his sister were provided for. However, he subsequently executed three holographic codicils in which he gave some personal and real property to two relatives and friends. In his last codicil, dated February 22, 1966, testator bequeathed 50 shares of General Aniline Corporation stock and 100 shares of RCA stock to his brother George, the present appellant. These securities at date of death were valued at approximately $7,000.

On August 12, 1966, his executor filed an inventory of the estate and included therein, in a separate schedule, certain securities valued at $196,000, which George (the appellant) claimed to be his by virtue of an inter vivos gift to him from the deceased nearly two months prior to his death. George filed objections to the inventory and after exceptions, appeal, arguments and adjudication, the Court rejected his claim. From the Court's adverse decree, George took this appeal.

The dispute centers about an event on January 30, 1966 and the legal effect of what occurred at that meeting. Curiously enough, there is consistency in the factual versions given by the witnesses for both sides. All appear to be agreed that on January 30th a friendly gathering took place in decedent's home, attended by seven people, including appellant and the deceased. The latter had recently returned home from the hospital.

[ 428 Pa. Page 542]

During the gathering which lasted about a half-hour, decedent handed appellant a package wrapped in newspapers, saying, " This is for you, George." The appellant accepted the package. The package was not opened at that time, and no one except George saw or testified to the contents of this newspaper package. The issue really boils down to this: What was in the newspaper package and what was the legal effect of this delivery with its aforesaid accompanying words?

It is well settled that appellant, the alleged donee of an inter vivos gift by a decedent, has the burden of proving by clear, direct, precise and convincing evidence a delivery to the alleged donee, either actual or constructive, together with a donative intent on the part of the donor. Brozenic Estate, 416 Pa. 204, 204 A.2d 918; Donsavage Estate, 420 Pa. 587, 218 A.2d 112.

As the Court aptly stated in Donsavage Estate, 420 Pa., supra (page 594): "Common sense dictates that, once it has been established by competent evidence or by admission, that stock certificates were registered in the decedent's name when he died and in his possession so shortly before he died, the person who disputes decedent's ownership of the stock at that time must come forward with evidence to sustain such lack of ownership. Cf. Thomas v. Waters, 350 Pa. 214, 220, 221, 38 A.2d 237. In so ruling, the court below was correct.

"Petitioners having shown that all the disputed stock was registered in decedent's name and in his recent possession, then Helen Mockler had the burden of going forward with evidence to show that she, not the decedent, owned the stock when he died; more specifically, she then had the burden of proving that the decedent, with donative intent, had delivered, either actually or constructively, the securities to her and that the decedent had ...


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