Appeal from decree of Orphans' Court of Montgomery County, No. 68-114, in re estate of Francis P. Ford, deceased.
Irwin S. Rubin, with him Rubin and Hamburg, for appellants.
J. Bradley Taylor, with him Taylor and Hardwick, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen concurs in the result.
Mabel W. Ford and Francis P. Ford, husband and wife, opened a joint savings account in 1955 with the Hatboro Federal Savings and Loan Association. This a count, titled "Mabel W. Ford and/or Francis P. Ford," is conceded by all parties to have been held by the entireties. On January 13, 1965, this account was closed and its entire balance of $3,932.81 was withdrawn on the signature of Mabel W. Ford. The money was then deposited in a new savings account in the same institution, which is the account presently in controversy. The new account was a joint account with a right of survivorship in the names of Mrs. Ford and her sister, Mrs. Florence A. Weir (the appellee). Subsequently, in June of 1965 a second deposit of $5,000 was placed in the Ford-Weir joint savings account; this check, it is agreed, also represents entireties property.
Mrs. Ford died on December 4, 1965, thirteen months prior to the death of her husband. After Mr. Ford's death, his estate brought suit against Mrs. Weir, alleging that Mr. Ford's estate was the owner of the approximately $8,000 presently in the Ford-Weir joint savings account. The Orphans' Court of Montgomery County held that Mr. Ford consented to both the closing of the husband-wife joint savings account and the opening of the new Ford-Weir joint savings account as well as the $5,000 deposit in the Ford-Weir account and thus entered a decree for Mrs. Weir. From that decree this appeal has been taken.
The court below concluded that Mr. Ford consented to his wife's actions primarily on the basis of testimony given by Mrs. Weir. Appellants contend that she was not a competent witness under the "Dead Man's Act," Act of May 23, 1887, P. L. 158, § 5, 28
P.S. § 322. As framed by the trial court, the issue presented can be thus stated: "A problem has always existed in the application of this statute [Dead Man's Act] to controversies between an estate and one who claims property originally owned by the decedent but allegedly the subject of inter vivos transfer to such person. The difficulty stems from the fact that there are, in such a situation, two parties with a possible interest in the property, each of whom might have an interest adverse to that of the decedent, depending on whether the transfer is valid or not, which is, however, the ultimate issue. This Gordian knot is cut by determining whether the gift or transfer is prima facie valid; with this determined, it becomes possible to decide to whom the decedent's interest has passed, and the other party to the controversy is rendered incompetent. [Citation omitted.] We must, therefore, determine whether or not the transfer to Florence A. Weir was prima facie valid, . . .
"Manifestly, competence must be determined before the witness testifies, not after. Desirable as it might be, rules of admissibility cannot be applied at the end of a case, in light of all the facts that come to light in the interim." (Emphasis in original.)
Prior to Mrs. Weir's testimony, the following facts appeared of record. Mrs. Ford had closed a savings account held by the entireties and transferred these funds to a joint account with her sister, Mrs. Weir. A check for some $15,000 representing the proceeds of the sale of the Ford residence (also held by the entireties) was endorsed by Mr. and Mrs. Ford and deposited by Mrs. Ford in a joint checking account which was in the names of Mrs. Ford and Mrs. Weir. The $5,000 deposit in the ...