Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 2499 of 1970, in re estate of Missoura K. Scott, deceased.
Lloyd H. Fuge, for appellant.
Thomas C. Jones, for appellee.
Jones, C. J., Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts took no part in the consideration or decision of this case.
James Kemp, executor of the estate of Missoura K. Scott, deceased, appeals from a final decree of the orphans' court division surcharging him with the value of a bank account which appellant and decedent had held as joint tenants with rights of survivorship.*fn1 The case was heard on petition of the appellee, Karen J. Marek, who was Mrs. Scott's granddaughter and residuary legatee under her will, to have the account declared an asset of the estate. The auditing judge granted the petition and entered a decree of distribution modifying the executor's account. The executor's exceptions were denied, and the decree was affirmed on the opinion of the auditing judge. This appeal followed.
The factual background of the case is as follows: appellant and Mrs. Scott were brother and sister. On April 14, 1970, Mrs. Scott was admitted to the intensive care unit of McKeesport Hospital with a kidney ailment which was diagnosed as terminal. During her five-day stay in the intensive care unit, she continuously received oxygen and intravenous injections. Visitors were permitted to see Mrs. Scott one at a time, and only for five minutes in each hour. Although she experienced physical discomfort, her mind remained clear during this period.
Sometime shortly after she entered the intensive care unit, Mrs. Scott signed a signature card provided by the McKeesport National Bank, authorizing the creation
of the joint account in question. On April 16th, Kemp signed the same card in the presence of a bank officer and deposited funds of Mrs. Scott in the account. Mrs. Scott was taken out of intensive care on April 19th, and was released from the hospital in the middle of May. Sometime in May, Mrs. Scott asked Kemp to sell her automobile. He arranged for the sale, and deposited the proceeds in the joint account.*fn2 Mrs. Scott died in her home on June 1, 1970.
The creation of a joint account with rights of survivorship, evidenced by a signature card signed by both parties, is prima facie evidence of an inter vivos gift from the party funding the account to the other joint tenant. Dzierski Estate, 449 Pa. 285, 296 A.2d 716 (1972); Sivak Estate, 409 Pa. 261, 185 A.2d 778 (1962); Berdar Estate, 404 Pa. 93, 170 A.2d 861 (1961); Furjanick Estate, 375 Pa. 484, 100 A.2d 85 (1953). Appellee concedes that there is insufficient evidence of fraud or undue influence to establish the invalidity of the gift. She argues, however, that the facts adduced show that a confidential relationship existed between Kemp and Mrs. Scott at the time she signed the signature card, and that the burden of showing that the gift was a free, voluntary and intelligent act of Mrs. Scott is thus shifted to Kemp. See Thomas v. Seaman, 451 Pa. 347, 304 A.2d 134 (1973); Dzierski Estate, supra. The auditing judge found that a confidential relationship did exist between Mrs. Scott and appellant, and that Kemp had failed to come forward with any evidence showing the absence of deception or undue influence in the transaction through which he
became a joint tenant of the account. No specific findings of fact were made as a basis for the ultimate finding of a confidential relationship. Our review of the record convinces us that the ...