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ESTATE JOHN C. BOWSER (05/01/79)

SUPREME COURT OF PENNSYLVANIA


decided: May 1, 1979.

IN RE ESTATE OF JOHN C. BOWSER, DECEASED, LATE OF PINE TOWNSHIP, ARMSTRONG COUNTY, PENNSYLVANIA. APPEAL OF MARGARET TATSAK, EXECUTRIX OF THE ESTATE OF JOHN C. BOWSER, DECEASED

No. 244 March Term, 1977, Appeal from the Decree of Orphans' Court dated September 28, 1977, of the Court of Common Pleas of Armstrong County, Pennsylvania, Orphans' Court Division at Estate No. 3-73-382.

COUNSEL

James G. Callas, Callas & Graff, Kittanning, for appellant.

Blair F. Green, Green & Bish, Kittanning, for appellee.

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

Author: Roberts

[ 485 Pa. Page 211]

OPINION OF THE COURT

John C. Bowser died testate on November 17, 1973. His will provided that his living children and the surviving spouse of his deceased child "share and share alike" in his estate. On December 9, 1974, his daughter, appellant Margaret Tatsak, executrix of the decedent's estate, filed a first and final account of the estate in the Orphans' Court Division of the Court of Common Pleas of Armstrong County. Appellees excepted to appellant's failure to include in decedent's estate the proceeds of a joint savings account. Appellant contended that she had been given, as an inter vivos gift, a joint tenancy with right of survivorship in the account and that as survivor the proceeds were hers and not part of decedent's estate. The court sustained appellees' exception.

This Court vacated the decree and remanded for an evidentiary hearing on the circumstances of the opening of the account and the contents of the signature card which created it. 470 Pa. 154, 367 A.2d 1088 (1977). After a hearing, the orphans' court again sustained appellees' exception and held that the proceeds of the joint savings account belonged to the estate. The orphans' court concluded that decedent did not intend to make an inter vivos gift, but rather intended to create a "convenience account" to enable appellant to pay his bills.

The only question before the Court is whether, in light of the joint tenancy with right of survivorship signature card, the evidence is sufficient to support the orphans' court's conclusion that appellees satisfied their burden of showing by clear, precise and convincing evidence that decedent did not make a gift inter vivos to appellant-survivor. We hold that it is not and reverse. Our determination of the issue presented is guided by two well-established legal

[ 485 Pa. Page 212]

    principles: (1) Execution of a signature card creating a joint savings account with a right of survivorship is sufficient to establish an inter vivos gift to the joint tenant by the depositor of the funds; (2) Introduction into evidence of a duly executed joint account signature card shifts the burden of proof to those who seek to bar enforcement of the survivorship terms of the writing and they must meet that burden with clear, precise and convincing evidence.*fn1 E. g., Estate of Lux, 480 Pa. 256, 389 A.2d 1053 (1979); Estate of Cilvik, 439 Pa. 522, 267 A.2d 836 (1970); Fenstermaker Estate, 413 Pa. 645, 198 A.2d 857 (1964); Furjanick Estate, 375 Pa. 484, 100 A.2d 85 (1953).

At the evidentiary hearing, appellant introduced into evidence the duly executed Armstrong County Trust Co. signature card which created the account here in controversy.*fn2 Thus, our task is to review whether the evidence relied

[ 485 Pa. Page 213]

    on by appellees was sufficiently clear, precise and convincing to "rebut the presumption of a gift inter vivos raised by the signed signature card." Lux Estate, 480 Pa. at 265, 389 A.2d at 1058; see also Gladowski Estate, 483 Pa. 258, 396 A.2d 631 (1979).

All the testimony introduced at the hearing was consistent with the creation of an inter vivos gift. Appellant testified that her father, who was not in good health, had intended for some time to "add her name" to his savings account. Appellant testified that her father intended to and did give to her a present interest in the joint account, that she did not intend to use the money for herself until her father died, that her father understood that at his death she would be the sole owner of the funds in the account, that he never told her what to do with the interest in the bank account he gave her, that he trusted her to take care of him, and that he viewed the gift as advantageous and convenient and that, if the need arose, she would take care of his expenses. There were no withdrawals from this joint account during decedent's lifetime.

Nothing in the testimony of the teller who witnessed both signatures to the joint account agreement on the back of the signature card supports the conclusion that decedent did not have the requisite donative intent. The teller testified that the "usual procedure" was to ask the depositors if they wanted to sign the agreement and to explain that the agreement provided that the balance of the account would go to the survivor. The teller was certain that she had explained to appellant the import of signing the back of the card. Her recollection was that she may have given the explanation to both appellant and the decedent as they were standing before her booth or that she may have given it to the daughter alone, who then called her father to the teller's booth. In the latter event, the teller could not recall whether she then gave another explanation to the decedent. The teller testified that she could not remember whether she

[ 485 Pa. Page 214]

    went through the "usual procedure" with the decedent, she did say however, "that's why my signature is on the back." Appellant testified that her father was standing beside her when the teller gave the explanation. The teller witnessed both signatures to the joint account with right of survivorship agreement by affixing her signature to the left of each of the joint tenant's signatures.*fn3

Appellees introduced evidence that after the decedent's death and immediately after taking her oath as executrix, appellant vowed never to tell the truth about "anything, money or anything." (Appellant denied ever having made such a statement.) Although this evidence, if believed, might justify discounting appellant's testimony, it cannot, in itself, sustain appellees' burden of showing decedent did not make an inter vivos gift to appellant.

There is nothing else in this record -- and much more would be required -- to support the orphans' court's conclusion that appellees established by clear, precise and convincing evidence that decedent, in executing the written "Joint Account -- Payable to Either or Survivor" signature card agreement, had no donative intent. The record fails to disclose an intent to create what has come to be called a "convenience account,"*fn4 rather than a gift inter vivos.

Decree of the orphans' court reversed. Each party pay own costs.


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