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CLAY ESTATE (04/22/70)

decided: April 22, 1970.

CLAY ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Berks County, No. 61977, in re estate of Emma R. Clay, deceased.

COUNSEL

Donald B. Corriere, with him Thomas C. Kubelius, for appellant.

David M. Kozloff, with him James W. Stoudt, John W. Biehl, and Rhoda, Stoudt & Bradley, for appellees.

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

Author: Cohen

[ 438 Pa. Page 185]

This is an appeal from a decree of the Orphans' Court Division of the Court of Common Pleas of Berks County specifying the manner in which the estate of Emma Clay is to be distributed. Appellant, Beatrice Binkley, daughter of the deceased, objects to the lower court's determination that she is not entitled to any part of $9,724.99 which was deposited in a savings account in the name of the deceased.

Emma Clay owned premises at 315 Brobst Street, Shillington, Berks County, Pennsylvania, and on November 21, 1958, she conveyed title to the premises to herself and her daughter, appellant, as joint tenants with right of survivorship. On November 5, 1963, the joint tenants along with appellant's husband conveyed title to the premises to Charles and Mary Schaffer. A check for the proceeds of the sale in the amount of $9,724.99 was issued to and endorsed in blank by Emma Clay and Beatrice Binkley and was deposited in a savings account in the name of Emma Clay alone in the First National Bank of Allentown. The proceeds remained in the account of the decedent until her death on October 23, 1967.

Appellant filed objections to the final account of the executors whose proposed distribution did not provide for her receiving any part of the $9,724.99. On February 3, 1969, the court confirmed the account nisi and on May 1, 1969, dismissed appellant's exceptions.

The first issue that must be resolved is as to which party bears the burden of proof. It is appellant's position that a joint tenancy existed prior to the sale of

[ 438 Pa. Page 186]

    the premises and that appellees have the burden of showing how that tenancy was severed. She contends that there is no evidence of severance by mutual consent, of severance by one tenant conveying his estate to a third person, or of severance by one tenant, without the other's consent, appropriating the property to his own use. Therefore, she argues, the joint tenancy continued in the proceeds and as the survivor she is entitled to the full amount. Even if there were a severance, she argues, she would be entitled to one-half of the fund as a tenant in common, and that the burden would be on appellees to show that she had relinquished this interest by gift. Ford Estate, 431 Pa. 185, 245 A.2d 443 (1968); Tradesmen's National Bank and Trust Company v. Forshey, 162 Pa. Superior Ct. 71, 56 A.2d 329 (1948). In essence, she is saying that appellees have the burden of showing how she lost what she once had.

Where appellant goes astray is her ignoring the crucial fact that when Emma Clay died the money was in a savings account in the name of the decedent alone. It is true that in Culhane's Estate, 334 Pa. 124, 5 A.2d 377 (1939), we placed the burden of proof on the accountant rather than on the claimant. In that case the decedent and claimant owned a bank account as joint tenants, and in 1934 the Secretary of Banking made a distribution of 33 1/3% to depositors. Decedent took that check and one from a later distribution (the checks were drawn to the order of Catherine Culhane or Grace Albracht), collected both and placed the proceeds in a safe deposit box which she rented in her name and that of a Mary Woods. At her death approximately ...


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