Appeal from decree of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1964, No. 4332, in case of Morris Cohen v. Jerry J. Goldberg, Judi Carol Zepkin (nee Goldberg), Jerry J. Goldberg, Guardian ad litem of Hank Joel Goldberg, a minor et al.
Herman Steerman, with him Zarwin, Prince, Baum, Steerman & Somerson, for appellants.
Harry C. Liebman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell joins in this concurring opinion.
Morris and Frances Cohen were married on July 19, 1948 and lived together until Frances Cohen's death on January 1, 1965. During their marriage, the Cohens opened three savings accounts in the names of "Frances Cohen or Morris Cohen."
On December 16, 1964, Mrs. Cohen instructed her nephew, Jerry Goldberg, to take from a safe deposit box rented jointly by Mrs. Cohen and Goldberg the passbook for the savings account in the Beneficial Savings Fund Society of Philadelphia and withdraw therefrom $2,000; a check was drawn payable to Frances Cohen, which she endorsed and returned to Goldberg who cashed the check and retained the proceeds. Pursuant to similar instructions given on the 17th, Goldberg withdrew $2,000 from a savings account in the Philadelphia National Bank and delivered these funds to a sister of Mrs. Cohen. Finally, on the 30th in compliance with Mrs. Cohen's instructions, Goldberg withdrew from a savings account in the Bell Savings and Loan Association $3,000, purchased four $1,000 United States savings bonds (at a cost of $750 per bond) in the name of Frances Cohen payable on Frances Cohen's death to four selected grandnieces and grandnephews.
Prior to these withdrawals, the total balance in the three above accounts was $12,551.30. The amount of the withdrawals (a total of $7,000) left a balance in these accounts at Mrs. Cohen's death of $5,551.30. Subsequent to Frances Cohen's death Morris Cohen learned of these withdrawals and then instituted an equity action in Court of Common Pleas No. 4 of Philadelphia County to recover the proceeds from Goldberg. The
court below granted relief based upon its belief that Mr. Cohen, as a surviving tenant of these entireties accounts, was entitled to all of the withdrawals. From that decree this appeal was taken.
We are in complete accord with the lower court's determination that these savings accounts were held by Mr. and Mrs. Cohen as tenants by the entireties. "A deposit in a banking account or in a checking account or in a savings account, which is opened or registered in the name of a husband and wife, or of a husband or wife, or of two persons who are husband and wife although not so denominated, creates a tenancy by the entireties, irrespective of whether the money deposited is payable to husband and wife or to husband or wife, or is denominated a joint account or a joint tenancy." Brose Estate, 416 Pa. 386, 390, 206 A.2d 301, 304 (1965) (emphasis in original). The source of the funds is not relevant. See Shapiro v. Shapiro, 424 Pa. 120, 136, 224 A.2d 164, 172 (1966); Nachman v. Nachman, 417 Pa. 389, 394, 208 A.2d 247, 250 (1965); Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964).*fn1
Although our cases frequently recite that an estate by the entireties can be terminated only by mutual agreement, our cases also create a doctrine of a fictional offer to terminate and a fictional acceptance by lawsuit applicable to those cases in which the termination is obviously not by mutual consent, i.e., those instances where one spouse has without the other's consent appropriated property held by the entireties. This doctrine was best articulated in Stemniski v. Stemniski, 403 Pa. 38, 42, 169 A.2d 51, 53 (1961): "A violation of the rules [governing entireties property] by one spouse's appropriating the property to his own use works a revocation of the estate by the fiction of the appropriation's being an offer of an agreement to destroy the estate and an acceptance of that offer when the other spouse starts suit: the property is then fit for accounting and division: . . ." (Emphasis supplied.) See also Lindenfelser v. Lindenfelser, 396 Pa. 530, 534-35, 153 A.2d 901, 905 (1959); Berhalter v. Berhalter, 315 Pa. 225, 229, 173 Atl. 172, 173 (1934). The court below concluded that Mrs. Cohen's death prior to the commencement of Mr. Cohen's equity action forestalled any acceptance of this fictional offer because, under general contract principles, to be accepted an offer must be communicated to the offeree prior to the death of the offeror.*fn2 The lower court therefore held that Mr. Cohen was the surviving entireties tenant and awarded to him the funds withdrawn by Goldberg. We agree that the lower court was ...