Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Luzerne County, No. 1530 of 1966, in case of estate of Apolinary S. Cilvik, deceased.
Joseph Serling, with him Serling, Olexy, Cohen and Moses, for appellant.
Harry Hiscox, with him Rosenn, Jenkins & Greenwald, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Pomeroy concurs in the result.
This appeal involves the ownership of a joint savings account opened under one of those perplexing and vexing bank signature cards. Testator left an estate of approximately $13,000, excluding this bank account of $6,750.93.
Apolinary Cilvik died testate on October 19, 1966. His will dated May 26, 1966 was probated October 27, 1966; on that same day letters testamentary were issued to his executrix, Regina Cilvik, one of the testator's daughters*fn1
On October 23, 1966, four days after the testator's death, some members of his family met at Regina Cilvik's home with Alexander Laffey, a member of the
bar and scrivener of testator's will. Laffey disclosed the contents of testator's will, which contained numerous devises and bequests to his children and grandchildren, and then discussed the administration of the estate. During the conference with Laffey, a passbook to a savings account at the Franklin Federal Savings and Loan Association of Wilkes-Barre was produced by Regina Cilvik, testator's executrix.
Laffey, after examining the passbook and discovering that it was in the joint names of the testator and Matilda Van Dyke, another of testator's daughters, questioned Mrs. Van Dyke concerning the ownership of the account. Laffey, on direct examination, testified: "Mrs. Van Dyke was seated directly across from me at the table. My first question was to Mrs. Van Dyke, 'Did you ever see this bankbook before, Mrs. Van Dyke?' She said, 'No.' I said, 'Do you know that your name is on this bankbook together with your father's?' She said, 'No.' I asked her, 'Do you concede that all of the funds that are on deposit in this bankbook are the property of your late father and will be administered in this estate?' She said, 'Yes'. I asked her then, 'Do you claim any ownership in the deposits represented in this bankbook?' She said, 'No.' I said, 'Are you willing to come to the bank at the earliest practicable moment and sign all necessary papers to withdraw the funds in this account so that they would be deposited in the estate of your late father and distributed in his estate?', and she said, 'Yes'. I then asked her, 'Would it be convenient for you to come to my office tomorrow for the purpose of making the transfer of these funds into a new account for the benefit of the estate, to be distributed in accordance with the will of the decedent?' She said, 'Yes'. 'Will nine o'clock in the morning be convenient for you to come to my office?', and she said, 'Yes'. I said, 'Very well
then, we will have an appointment for you to be in my office at nine o'clock the next morning to make the transfer'."
Mrs. Van Dyke failed to keep her nine o'clock appointment with Laffey, but did appear at his office at approximately 11 o'clock that same morning. She then advised Laffey that she had consulted private counsel and that she was not going to transfer the money in the savings account to the estate, because her father had made a gift of the funds to her.
On October 28, 1966, Mrs. Van Dyke withdrew the money on deposit in this savings account. Since the bank regulations required that all withdrawals be accompanied by a passbook, and Laffey still had the passbook in his possession, Mrs. Van Dyke signed a sworn affidavit "that the savings share account book . . . has been lost. Diligent search has been made for said document and it cannot be found."
On February 21, 1968, testator's executrix, Regina Cilvik, petitioned the Luzerne County Orphans' Court for a rule to show cause why Matilda Van Dyke should not be compelled to turn over to the estate the sum of $6,750.93 plus interest, said sum being the amount on deposit in the savings account in question at testator's death. Mrs. Van Dyke filed an answer to the petition and a hearing was held on April 24, 1968. At the hearing, Matilda Van Dyke submitted into evidence a bank signature card*fn2 which was signed by herself and the testator for the savings account in question. This card provided in relevant part: