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decided: October 7, 1977.



Anthony J. Martin, Monroeville, for appellant.

Frank C. Rayburn, John J. Klein, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 474 Pa. Page 418]


Agnes Shea Klein (decedent) died in an automobile accident on November 1, 1972. Her husband, Albert B. Klein (appellee), the driver of the vehicle in which she was riding, was subsequently charged and convicted for the involuntary manslaughter of decedent.*fn1

On November 22, 1972, decedent's will was admitted to probate and letters testamentary were issued to decedent's

[ 474 Pa. Page 419]

    daughter, Marlene Shea Indovina (appellant), the executrix of the estate. By the terms of the will, Marlene Shea Indovina was to receive three parcels of real estate, certain government bonds and $10,000.00 in cash. The residue of the estate was left to appellee.*fn2

On May 20, 1974, appellant filed an inventory of the assets of the estate.*fn3 On July 1, 1974, appellee filed an election to take against the will.*fn4 Appellant then filed a "petition to revoke and vacate" the election on the ground that appellee was barred from sharing in the estate by the Slayer's Act.*fn5 Appellee later claimed the family exemption of $1,500.00.*fn6

[ 474 Pa. Page 420]

On October 28, 1974, appellee filed a petition to recover from the estate funds which were formerly on deposit in two bank accounts in the names of Albert Klein or Agnes Klein. Appellee alleged that decedent had withdrawn the funds from the two accounts without his knowledge or consent and had deposited the proceeds in two new accounts in the name of Agnes Klein, in trust for Phillip and Michelle Indovina.

A hearing on these petitions was held on September 30, and October 1, 1975. During this hearing, appellant also contended that the proceeds received by appellee as beneficiary of decedent's life insurance policies should be returned to the estate pursuant to the Slayer's Act.*fn7

The Orphans' Court: (1) denied appellee's petition to take against the will;*fn8 (2) allowed appellee's application for the family exemption; (3) granted appellee a share of the joint bank accounts; and (4) declined to rule on the merits of the estate's attempt to recover the proceeds of the insurance policies.*fn9 Appellee filed no exceptions to the court's decree. Appellant filed exceptions which were dismissed by the court en banc on March 17, 1976. This appeal followed.*fn10 We affirm.


Section 8802 of the Decedents, Estates and Fiduciaries Code provides:

"No slayer shall in any way acquire any property or receive any benefit as the result of the death of the

[ 474 Pa. Page 421]

    decedent, but such property shall pass as provided in the sections following."

20 Pa.C.S.A. § 8802 (1975).*fn11 Section 8803 provides:

"The slayer shall be deemed to have predeceased the decedent as to property which would have passed from the decedent or his estate to the slayer under the statutes of descent and distribution or have been acquired by dower, by curtesy or by statutory right as surviving spouse."

Id. § 8803.*fn12 The Code defines a slayer as

"any person who participates, either as a principal or as an accessory before the fact, in the wilful and unlawful killing of any other person."

Id. § 8801.

The Orphans' Court held that appellee's conviction for involuntary manslaughter did not conclusively bar him from sharing in the estate. The Slayer's Act requires that the killing be "wilful and unlawful" to bar inheritance. Id. § 8801. Appellant argues that the court erred in concluding that involuntary manslaughter does not constitute a "wilful" killing.*fn13

[ 474 Pa. Page 422]

Our task is to determine what kind of culpability the Legislature intended to encompass by the use of the word "wilful" in the Slayer's Act. We conclude that the Legislature did not intend that a conviction for involuntary manslaughter should conclusively bar an individual from sharing in the victim's estate.

We have previously recognized that the term wilful "is a word of many meanings, depending on the context in which it is used." Commonwealth ex rel. Wright v. Hendrick, 455 Pa. 36, 40, 312 A.2d 402, 404 (1973). In various contexts, wilful has been interpreted to mean "intentional,"*fn14 "deliberate and intentional,"*fn15 and has been said to suggest "the presence of intention and at least some power of choice."*fn16 We believe that in employing the expression a "wilful" killing in the Slayer's Act, the Legislature intended to designate a higher degree of culpability than that required for involuntary manslaughter.

Under the Penal Code, involuntary manslaughter was defined as a death "happening in consequence of an unlawful act, or the doing of a lawful act in an unlawful way."*fn17 When a death resulted from an act lawful in itself but done in an unlawful way, the Commonwealth had to present evidence establishing "a departure from the behavior of an ordinary and prudent man as to evidence a disregard of human life or an indifference to the consequences," in order to sustain a conviction for involuntary manslaughter. Commonwealth v. Feinberg, 433 Pa. 558, 566, 253 A.2d 636,

[ 474 Pa. Page 423640]

-41 (1969).*fn18 Thus, a conviction for involuntary manslaughter does not require that the killing be committed intentionally or with malice. Of the various degrees of unlawful killings, involuntary manslaughter requires the lowest degree of culpability. We conclude that by requiring that a killing be "wilful," the Legislature intended to exclude involuntary manslaughter from the scope of the Slayer's Act. Indeed, any other conclusion would render the word "wilful" surplusage as all unlawful killings would then be covered by the Slayer's Act.

Our conclusion is buttressed by the circumstances surrounding the adoption of the Slayer's Act. The present statute was adopted in response to a decision of this Court which held that under the prior statute a criminal conviction was necessary before an individual would be barred by the Slayer's Act from inheriting from the victim's estate. Tarlo's Estate, 315 Pa. 321, 172 A. 139 (1934). At the time Tarlo's Estate was decided, the Slayer's Act barred recovery by any

"person who shall be finally adjudged guilty, either as principal or accessory, of murder of the first or second degree . . . ."*fn19

The statute was held inapplicable in Tarlo's Estate because although Tarlo had intentionally killed his wife, he immediately thereafter committed suicide and therefore was never brought to trial.

After Tarlo's Estate, the Legislature amended the Slayer's Act. The requirement that a conviction precede application of the Act was eliminated and the Legislature adopted a definition of "slayer" substantially the same as the definition proposed by Professor Wade. See Wade, Acquisition of

[ 474 Pa. Page 424]

Property By Wilfully Killing Another -- A Statutory Solution, 49 Harv.L.Rev. 715 (1936);*fn20 Larendon Estate, 439 Pa. 535, 538, 266 A.2d 763, 765 (1970). In the commentary to his proposed statute, Professor Wade stated that involuntary manslaughter should not be considered a wilful and unlawful killing:

"Should a statute of this sort include manslaughter? . . [I]t is believed it should not if the killing is involuntary. If the wrong was not intentional, it is difficult to say as a matter of policy that the perpetrator should be prohibited from acquiring property."

Id. at 722 (footnotes omitted). The history of the Slayer's Act in Pennsylvania suggests that the language adopted in the present version of the Slayer's Act was not intended to encompass involuntary manslaughter.

We therefore hold that involuntary manslaughter is not a wilful killing within the meaning of the Slayer's Act and that a person convicted of involuntary manslaughter is not conclusively barred from sharing in the victim's estate.*fn21

[ 474 Pa. Page 425]

Appellant next asserts that the Orphans' Court, which made its own determination whether appellee had committed a wilful and unlawful killing even though appellee had only been convicted of involuntary manslaughter,*fn22 erred in finding that the killing was not wilful. We do not agree.

[ 474 Pa. Page 426]

The only evidence introduced at the hearing relative to the circumstances surrounding decedent's death was appellee's testimony. According to appellee, he and decedent attended a party at the Greater Pittsburgh Airport in Allegheny County on November 4, 1972. He left the party with decedent and a friend, Mrs. Redd. Appellee stated that he could remember nothing from the time he left the airport parking lot until after the accident. He later learned that he drove his car on the wrong side of the highway leading from the airport. After traveling on the highway for about two or three miles, appellee's automobile collided with a truck. He was hospitalized for five months as a result of the injuries he received in the accident. Decedent was killed and Mrs. Redd sustained serious injuries.

Appellant asserts that the evidence established that appellee's actions were wilful and unlawful. Even if the evidence could support a finding that appellee's culpability constituted willfulness, the Orphans' Court found that appellee's actions were not wilful.*fn23 In reviewing the decision of the orphans' court, this Court's responsibility is to assure that the record is free from legal error and to determine if the orphans' court's findings are supported by competent and adequate evidence. E. g., In re Estate of Cohen, 445 Pa. 549, 284 A.2d 754 (1971). This Court is bound by the orphans' court's findings of fact if they are supported by the record. See Brentwater Homes, Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172 (1977). After reviewing the record, we conclude that the Orphans' Court's determination that decedent's death did not result from a wilful killing is supported by the record and should not be disturbed.

[ 474 Pa. Page 427]

Finally, appellant asserts that the record is inadequate for a determination whether the killing was wilful and requests that this Court remand the case with instructions for a more complete evidentiary hearing. However, the very purpose of the hearing which was held by the Orphans' Court was to determine whether appellee was entitled to share in decedent's estate. Appellant asserted before the court that appellee's claims in the estate were barred by the Slayer's Act. Nothing in the record indicates that appellant was limited in any way from establishing that appellee had wilfully killed decedent. We reject appellant's request for a second bite at the apple.*fn24


Appellant asserts that the Orphans' Court erred in allowing appellee to recover from the estate one half of the amount of money formerly held in two bank accounts in the names of Albert Klein or Agnes Klein. The facts relevant to this issue are not disputed.

Appellee and decedent were married on August 22, 1970. On January 7, 1971, decedent withdrew $5,413.88 from a savings account in her name at the Penn Hills branch of the Western Pennsylvania National Bank and deposited the money in a growth account at the Kenmawr branch of the same bank in the names of Albert Klein or Agnes Klein. On the same day, decedent withdrew $7,872.12 from another savings account in her name at the Penn Hills branch and deposited the money in a savings account at the Kenmawr branch in the names of Albert Klein or Agnes Klein.

[ 474 Pa. Page 428]

On August 13, 1971, decedent closed both accounts she had established on January 7. At the time, there was $5,542.17 in the growth account and $4,777.50 in the savings account.*fn25 On the same day, she created two tentative trust accounts entitled: "Mrs. Agnes Klein in trust for Phillip and Michelle Indovina," into which she deposited the $5,542.17 and $4,777.50 respectively. Appellee testified that he did not learn that decedent closed the growth and savings accounts until he was in the hospital following the automobile accident which resulted in decedent's death.

The Orphans' Court ruled that the creation of the joint accounts in the names of appellee and decedent established a tenancy by the entireties. The court then decided that appellee was entitled to one half of the funds held in the accounts.*fn26

Appellant contends that a tenancy by the entireties was not created when decedent established a joint account with her husband with funds which formerly belonged to decedent alone. Appellant argues that when a wife places her sole property in joint names with her husband a gift is not presumed, but rather the husband is viewed as holding

[ 474 Pa. Page 429]

    the property as trustee of a resulting trust for the wife. This argument misapprehends the law.

In Cohen v. Goldberg, 431 Pa. 192, 244 A.2d 763 (1968), this Court stated that absent evidence of a contrary intent,*fn27 a deposit in a banking account or a savings account which is opened or registered in the name of a husband and wife or a husband or wife creates a tenancy by the entireties. Id. 431 Pa. at 195, 244 A.2d at 765.

Appellant relies on Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966), for the proposition that the presumptions which arise when property is placed in joint names "depend on which spouse was the donor."*fn28 Appellant fails to note that Shapiro has been overruled. The differing presumptions based on sex which were employed in that case "can no longer stand in view of the passage of the Pennsylvania Equal Rights Amendment, Pa.Const. Art. I, § 28 (adopted May 28, 1971) . . . ." Butler v. Butler, 464 Pa. 522, 527, 347 A.2d 477, 480 (1975). In Butler, this Court abandoned the presumption that a transfer without consideration from a wife to her husband creates a trust for the wife in favor of the presumption that inter-spousal transfers are gifts regardless which spouse is the donor:

"[I]n a marital relationship a gift to entireties property is presumed for contributions made by either husband or wife. A constructive trust will be imposed only when it

[ 474 Pa. Page 430]

    appears that the parties are in fact in a confidential relationship with one party enjoying an advantage over the other because of superior knowledge or influence and that this domination caused a gift to entireties property to arise."

464 Pa. at 529, 347 A.2d at 481; accord, Yohe v. Yohe, 466 Pa. 405, 410-11, 353 A.2d 417, 420 (1976).

We reject appellant's claim that the Orphans' Court applied an incorrect presumption to the facts of this case. Accordingly, there is no basis for disturbing the court's adjudication that decedent created a tenancy by the entireties when she established bank accounts in the names of Albert Klein or Agnes Klein on January 7, 1971.

Decree affirmed.

Each party pay own costs.

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