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ZABEK ESTATE (10/09/70)

decided: October 9, 1970.

ZABEK ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 4245 of 1965, in re estate of John Zabek, deceased.

COUNSEL

Saul Davis, for appellants.

J. Craig Kuhn, with him James L. Bruggeman, and Wilner, Wilner & Kuhn, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen, Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this concurring opinion.

Author: Bell

[ 441 Pa. Page 118]

This appeal involves the ownership of two bank accounts totaling $33,865.00.

John Zabek died testate on September 14, 1965, leaving an estate of approximately $22,000.*fn1 Decedent's will, dated July 14, 1962, was duly probated and Walter Zambek,*fn2 testator's eldest living son, was appointed executor of the estate. Testator's will provided that his estate be distributed equally among his nine children and that the issue of any deceased child take per stirpes. On January 8, 1967, Walter Zambek died, before any account had been filed in his father's estate. Walter was survived by his widow and three children, two of whom are the present appellants. After Walter's death, two of his brothers, Michael and Frank Zombek, were appointed administrators d.b.n.c.t.a. of the estate of their father, John Zabek.

On May 24, 1968, Michael and Frank Zombek in their fiduciary capacity filed a petition in the Orphans' Court which alleged that a part of the funds of the testator, John Zabek, which the deceased executor, Walter Zambek, held in his fiduciary capacity for the benefit of all the testator's beneficiaries, was distributed without administration to some of the beneficiaries under their father's aforesaid will. The administrators asked that a citation be issued directing these distributees to account for the funds in question. On November 29, 1968, the Orphans' Court issued the requested citation.*fn3

The testimony presented at the hearing showed that on July 12, 1962 -- two days before he executed his will and over three years before his death -- the testator,

[ 441 Pa. Page 119]

John Zabek, accompanied by his eldest living son, Walter Zambek, and by Walter Tafelski, went to the Bridgeville Trust Company. After a discussion with the President of said Company, John Zabek and Walter Zambek opened a joint checking account in the amount of $18,865 and a joint savings account in the amount of $15,000. All of the money deposited in each of these accounts was the sole personal property of John Zabek. Both John Zabek (the testator) and Walter Zambek signed the hereinafter quoted bank signature cards for each of the above-mentioned accounts:

"Zabek, John or Walter Zambek

It is agreed and understood that any and all sums that may from time to time stand on this account, to the credit of the undersigned depositors, shall be taken and deemed to belong to them as joint tenants*fn4 and not as tenants in common; and in case of the death of either, The Bridgeville Trust Company is hereby authorized and directed to deal with the survivor as sole and absolute owner thereof."

The testimony showed that the testator requested joint accounts and that before the bank signature cards were signed, William McDivitt, Jr., President of the Trust Company, clearly explained to the testator and his son, Walter, that upon the death of either of them the money remaining in each account would be the sole property of the survivor*fn5 Tafelski in part of his testimony corroborated McDivitt's testimony, but Tafelski's testimony as a whole was so equivocal as to be of very little value.

The Orphans' Court permitted the petitioners to introduce, over appellants' objection, parol evidence to prove that their father, ...


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