John S. Fine, Joseph P. Olexy, Wilkes-Barre, for appellant.
John L. McDonald, Wilkes-Barre, for appellee, United Penn Bank, executor of estate.
Frank Townend, Wilkes-Barre, John J. Pentz, Jr., Stroudsburg, William T. Jorden, Erie, for appellees, Enid David, Geraldine A. Baltzer, Mary Ann Toms & George A. Learn, Jr., Legatees and Heirs-At-Law.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
Appellant, Vivian Kellow, objected to the inventory, proposed schedule of distribution and final accounting of the executor of the estate of Arthur Evans. After appellant finished the presentation of her case, the lower court granted appellees' motion to dismiss appellant's objections. Appellant's exceptions to that order were denied in a final order by Judge Lopatto sitting as a court en banc. The thrust of her appeal to this Court is that certain contents of a safe deposit box were the subject of an inter vivos gift to her from Arthur Evans, the deceased,
and, consequently, should not have been included in his estate.
Appellant, the niece of Arthur Evans' deceased wife, began working for the Evans family when she was 16. For several years she took care of Mrs. Evans who for some years prior to death was an invalid. Appellant cooked meals for the Evanses, cleaned their house, did their laundry and generally cared for Mrs. Evans. She received adequate compensation for performing these needed services. When Mrs. Evans died, appellant continued to cook at least one hot meal a day for Mr. Evans, do his laundry and make sure his house was tidy. After appellant was married, she continued to perform these same services and visited Mr. Evans once a day. In May of 1971, following one of his four hospitalizations, the deceased moved into appellant's home.
Although at times Mr. Evans was confined to his bed because of water in his legs, he frequently took walks, had visits with his lawyers and made trips to his bank. On October 22, 1971, appellant's husband drove Mr. Evans and a friend of his, Mr. Turley, to town so that Mr. Evans might go to the bank. Turley testified that Mr. Evans spent about one hour going through the contents of his safe deposit box. Before leaving the bank, the deceased obtained both keys to the box.
Various witnesses presented by appellant testified to seeing the keys to the safe deposit box beneath appellant's mattress and to statements by Mr. Evans to the effect that the contents of the safe deposit box had been given to appellant. Mr. Evans entered the hospital for the last time on November 5, 1971. During this last hospital stay, Reverend Cunnings visited with him and was told that Mr. Evans was giving the Reverend's church $10,000.00 and that he had given the rest of his possessions and the keys to his safe deposit box to appellant. Mr. Evans expired on November 23, 1971.
Appellant relinquished the keys to the safe deposit box to a bank officer, but not without protesting that the contents of the box were hers. The box revealed a holographic will of Mr. Evans dated September 16, 1965, and approximately $800,000.00 in bonds, preferred and common stock and several miscellaneous items.*fn1
The lower court correctly noted that the requirements for a valid inter vivos gift were donative intent and delivery, actual or constructive. With respect to donative intent, the court found:
"Turning to the facts of this case, certainly no one can reasonably argue that Arthur Evans lacked sufficient motive to make a gift to Vivian. The record clearly manifests, both by his conduct and his ...