No. 7 January Term 1978, Appeal from the Decree of the Superior Court of Pennsylvania, No. 250, October Term, 1977, affirming the Decree of the Court of Common Pleas, Trial Division, of Philadelphia County May Term, 1971, No. 5258, In Equity
Fred Lowenschuss, Philadelphia, for appellant.
Harry R. Kozart, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Manderino, J., did not participate in the consideration or decision of this case.
This appeal arises out of a complaint in equity instituted in 1971 by Davida Sack, appellant, against her sister, Isabel Feinman, appellee. The complaint alleged that appellee had induced their mother to execute powers of attorney to enable appellee to control their mother's assets. It was further asserted that appellee fraudulently converted these assets prior to the mother's death by placing them in her own name. Specifically, it was contended that appellee, during January and April of 1970, through the use of the previously mentioned powers of attorney, converted savings bonds and certificates belonging to the mother and placed in trust for appellant to her own account. The chancellor found that the redemption of these bonds and certificates was not at the request or instruction of the mother and rejected the contention that the redemptions were intended by the mother to be a gift to appellee. Thereupon the chancellor found in appellant's favor and imposed a constructive trust in the amount of $25,000. Appellant appeals from the chancellor's refusal to award pre-verdict interest. The Superior Court affirmed without opinion and we granted allocatur.*fn1
The facts underlying this action are clear cut. At the time of the adjudication by the court of common pleas in 1975, appellant was 49 years old, appellee was 59, and a third sister, Ruth Gland,*fn2 was 54 years old. Their father had died at an unspecified time prior to the death of their mother who died on November 10, 1970. Appellee, who has never married, had been living with the mother since at least 1960.
Beginning in 1967, the decedent began to purchase savings bonds in her name in trust for each of her daughters. These purchases were as follows:
(a) January 5, 1967 : Girard Trust Bank, two 10 year, five percent savings bonds in the amount of $10,000 each, one in the name of decedent in trust for appellant and one in decedent's name in trust for appellee.
(b) January 27, 1967 : First Pennsylvania Bank, three 10 year, five percent savings bonds in the amount of $10,000 each, held in decedent's name in trust for her daughters in the following amounts: appellant $10,000, appellee $5,000, Ruth Gland $10,000.
(c) February 1, 1967 : Girard Trust Bank, two 10 year, five percent savings bonds in the amount of $10,000 each, one held in decedent's name in trust for appellee, the other held in trust for Ruth Gland.
In a will executed by the decedent on November 15, 1967, she stated that she had made provisions for Ms. Gland and appellant to each receive $20,000 upon her death from assets from the probate estate:
In making the foregoing provisions in this, my will, I have considered the needs of each of my daughters, ISABEL FEINMAN, RUTH C. GLAND and DAVIDA G. SACK, and I have been mindful of the fact that I have, in
my lifetime, made certain provisions for my daughters, RUTH C. GLAND and DAVIDA G. SACK, so that upon my death, each of said daughters, RUTH and DAVIDA, will receive approximately Twenty Thousand ($20,000.00) Dollars, from certain of my assets that will not be a part of my probate estate. I am confident that my daughters, RUTH C. GLAND and DAVIDA G. SACK, as well as my daughter ISABEL FEINMAN, will always know that while I have made ...