Appeal from decree of Court of Common Pleas of Blair County, Nos. 478 and 479 of 1970, in re estate of Sulia H. Eyer, deceased.
Benjamin I. Levine, Jr., and Nelson, Campbell & Levine, for appellant.
John Woodcock, Jr., and Woodcock & Mattas, for appellees.
Jones, C. J., O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen took no part in the consideration or decision of this case. Mr. Justice Manderino dissents.
Appellant, James W. Nelson, executor of the Estate of Sulia H. Eyer, appeals from the decree of the Court of Common Pleas of Blair County disallowing appellant's claim of a one-half interest in a savings account in the name of Sadie and Paul K. Wharton.*fn1
Appellant's claim is based on the following pertinent facts. On February 2, 1967, Sulia H. Eyer added the name of Sadie Wharton, her niece, to a savings account with the Investment Savings and Loan Association of Altoona, Pennsylvania, and signed a signature card, thereby vesting in Sadie Wharton the power of withdrawal and right of survivorship in an unrestricted joint tenancy. The account book was given to Sadie.
In November of 1969, Sadie Wharton transferred the funds from that account into a new account in the names of herself and her husband as tenants by the entirety, subject to withdrawal by either of them and with the right of survivorship. At the time of Mrs. Eyer's death on July 24, 1970 the balance in the savings account was $15,371.13. There had been no withdrawals from this new account.
Appellant contends that Sadie's creation of the new account constitutes severance of the original joint account. The result, he argues, would be creation of a tenancy in common with no right of survivorship between Sadie and the decedent. Under this theory, the Whartons would be accountable to the estate for one-half of the balance in the savings account.
The appellant relies on Berhalter v. Berhalter, 315 Pa. 225, 228, 173 A. 172, 173 (1934), where this Court enunciated the proper test to be applied in all cases involving the severance of a joint tenancy. We held: "Where both husband and wife have the power to withdraw funds deposited in a joint account, the power must be exercised in good faith for the mutual benefit of both, and cannot be rightly exercised by the fraudulent withdrawal of the corpus of the funds for the exclusive use of one for the purpose of depriving the other of any use thereof or title thereto." This test is not limited to joint accounts opened by a husband and wife. Beniger Estate, 449 Pa. 373, 296 A.2d 773 (1972); Carson Estate, 431 Pa. 311, 245 A.2d 859 (1968).*fn2
The court below concluded as a matter of law that the unilateral transfer of the corpus of the joint savings account by the act of Sadie Wharton into an entireties estate was alone insufficient to justify a finding that Sadie was not acting for ...