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CARNEVALINO ESTATE (10/09/69)

decided: October 9, 1969.

CARNEVALINO ESTATE


Appeal from decree of Orphans' Court of Chester County, No. 117 of 1968, in re estate of Francesco Carnevalino, deceased.

COUNSEL

Angelo A. DiPasqua, for appellant.

A. Bruce Niccolo, with him Moorshead & Niccolo, for appellee.

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

Author: Cohen

[ 435 Pa. Page 367]

In this proceeding, Ernest L. Carnevalino, executor of the estate of Francesco Carnevalino, deceased, seeks to recover as an asset for said decedent's estate a certain bond and mortgage presently in the possession of and claimed by Lucia Carnevalino, the decedent's surviving spouse, as her property as surviving tenant by the entirety.

From the pleadings, it is admitted that the decedent purchased (in his name only) a property in 1922,

[ 435 Pa. Page 368]

    prior to his marriage. In 1965, the property was conveyed to Frank DiFabrizio, who, in partial payment, executed a bond and mortgage which designated decedent and Lucia as mortgagees. Lucia was present at the time of settlement and signed the settlement sheet and the deed by her mark. Francesco subsequently died testate naming his son, Carlo, as one of his beneficiaries. In this action brought by the executor of the decedent's estate to determine whether the mortgage is an asset of the decedent or the property of the widow, as survivor of an estate by the entireties, the principal issue is whether the testimonies of the widow and son Carlo are admissible under the "dead man's rule." The lower court found no prima facie gift and therefore excluded the wife's testimony and admitted that of the son. Thereupon the court determined that the bond and mortgage was an asset of the estate and ordered the widow to deliver the same to the executor. The widow appeals this decree.

The approach to determining the competency of a witness under the "Dead Man's Act", Act of May 23, 1887, P. L. 158, § 5, 28 P.S. § 322, has recently been outlined by this Court in Ford Estate, 431 Pa. 185, 245 A.2d 443 (1968). It was there determined that the question of whether the proposed witness' interest is adverse to that of the decedent is to be answered by first determining whether the gift or transfer is prima facie valid. This is to be done without regard to the testimony which the witness would offer. Ford Estate, supra at 187.

We hold that the widow had established a prima facie gift in light of the documentary evidence. Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964). "A conveyance of real or personal property to a husband and wife without more, vests in them an estate by the entireties with all legal incidents." Brenner v. Sukenik,

[ 435 Pa. Page 369410]

Pa. 324, 330, 189 A.2d 246 (1963). "Where property or an account is placed in the names of a husband and wife, a gift and the creation of an estate by the entireties is presumed even though the funds used to acquire the property or to establish the account were exclusively those of the husband: Cribbs Estate, 411 Pa. 242, 191 A.2d 379 (1963)." Holmes Estate, supra at 406. The form ...


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