Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Westmoreland County, No. 65-71-1003, in re estate of Joseph Beniger.
William C. Stillwagon, for appellant.
Henry J. Mahady, with him Jon Mark Lewis, Patrick H. Mahady, and Mahady & Mahady, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.
Joseph Beniger died intestate on September 2, 1971. Certain events which occurred prior to his death give rise to the present controversy.
On July 20, 1971, Jennie M. Kovacs, appellee, petitioned the Orphans' Court Division of the Westmoreland County Court of Common Pleas to declare her father, Joseph Beniger, an incompetent. At this time there existed two joint bank accounts in the names of Joseph Beniger or Jennie M. Kovacs, as joint tenants with right of survivorship and right of withdrawal. One was a checking account with the Southwest National Bank of Pennsylvania in the amount of $2,113.75 and the other was a savings account with the Pittsburgh National Bank in the amount of $10,435.37. The checking account was a convenience account used to pay Joseph Beniger's bills and for his maintenance and care. Money from sources such as Social Security and rent checks went into this account. On August 2, 1971, Jennie M. Kovacs closed the savings account and placed the entire amount in the Mellon National Bank and Trust Company in her own name.
On August 24, 1971, Joseph Beniger was declared an incompetent and Jennie M. Kovacs was appointed guardian of his estate. Joseph Beniger died eight days later and Violet Pivic, appellant, his eldest daughter, was appointed administratrix of his estate. On January 7, 1972, Jennie M. Kovacs filed her account as guardian and claimed the checking account as survivor. The appellant took exception to this account. The Orphans' Court Division of the Common Pleas Court of Westmoreland County was asked to decide whether either or both accounts should be distributed to Joseph Beniger's estate. The court held that the checking account was not a gift to the appellee and should be transferred to the estate, its rationale being that, although the signature card was prima facie evidence of a gift, the evidence clearly indicated that the account was established to pay Joseph Beniger's bills and that no gift was intended. The court further held that the savings
account was the subject of an inter vivos gift and, therefore, the sole property of appellee.
All parties now agree that the checking account must be made part of the estate. The sole question, therefore, is whether a joint tenant of a joint savings account with right of survivorship who closed the account and put the money in another account in her name one month prior to the death of the other joint tenant, the depositor, is entitled to keep the entire sum as a donee of an inter vivos gift.
In Sivak Estate, 409 Pa. 261, 264, 185 A.2d 778, 780 (1962), this Court stated that the requisite elements of a valid inter vivos gift are: "An intention to make an immediate gift and such an actual or constructive delivery to the donee (a) as to divest the donor of all dominion and control, or (b) if a joint tenancy is created, as to invest in the donee so much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein [citations omitted]." In accordance with this general proposition, we also stated in Sivak Estate, 409 Pa. at 265, 185 A.2d at 780, that, ". . . when a depositor creates a joint savings account with right of survivorship and a signature card so ...