No. 144 March Term, 1977, Appeal from the Decree of the Court of Common Pleas, Orphans' Court Division, of Westmoreland County at No. 65-75-660
John J. Driscoll, Hudock & Driscoll, Greensburg, for appellant.
Nathan F. Abromson, Abromson & Abromson, Mount Pleasant, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
The present appeal, which involves a surviving spouse's right to make an election under Section 6111 of the Decedents,
Estates and Fiduciaries Code ("the Code"),*fn1 is further evidence of the accuracy of the observation of the late Chief Justice Bell that joint bank account cases, despite the existence of settled legal principles, often prove "vexing" and "difficult" when one seeks to apply these principles "to the different factual situations which so frequently arise . . ." Martella Estate, 390 Pa. 255, 258, 135 A.2d 372, 373 (1957). The difficulties notwithstanding, we are obliged to agree with appellant that the court below erred in its disposition of this case. We accordingly will reverse.
Phillip H. Cost died intestate on November 10, 1974. His estate consisted of a house in Mount Pleasant, Pennsylvania, held by the entireties with his wife, appellee herein, and various bank accounts. The property with which the lower court's decree and this appeal are concerned, however, are the proceeds of a certain certificate of deposit in the joint hands of Phillip Cost (the decedent) and Suzanne Caletri (decedent's granddaughter), the appellant herein. This certificate was redeemed and its proceeds obtained by Suzanne in decedent's lifetime. It is these proceeds which are the subject of the present action brought by appellee in the orphans' court division of the court of common pleas.*fn2 After hearing, the lower court held that these proceeds were subject to an election by appellee under Section 6111 of the Code, and this appeal followed dismissal of exceptions by the court en banc.*fn3
The evidence presented at the hearing may be summarized as follows. Phillip Cost and Christine N. Cost were married
for some fifty years, but in the last years of Phillip's life their relationship became seriously strained. As a result of litigation with his wife which need not be detailed here, decedent became acquainted with a lawyer, Donald Hacker, whom he saw fairly often during 1974 regarding property and other matters. Hacker testified at the hearing and recounted his conversations with the decedent. We need not review the discussions at length.*fn4 Suffice it to say that this testimony shows, as the lower court put it, that "there can be little doubt as to the intention of [decedent] in so far as his wife inheriting any amount of money on his death [is concerned] . . . it is apparent that it was his intention to dispose of his ...