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ESTATE MARY DEPAOLA VITTORIO (05/28/81)

submitted: May 28, 1981.

ESTATE OF MARY DEPAOLA VITTORIO, DECEASED. APPEAL OF ALESSANDRO TARSIA, ELENA TARSIA AND ANGELINA TARSIA, BENEFICIARIES OF TRUST ACCOUNT NO. 07010528 AT ROXBOROUGH -- MANAYUNK FEDERAL SAVINGS & LOAN ASSOCIATION


No. 2831 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Orphans Court Division, of Montgomery County, No. 81506.

COUNSEL

Silvio F. Modafferi, Philadelphia, for appellants.

John A. DiCicco, Norristown, for appellee.

Wickersham, McEwen and Wieand, JJ.

Author: Wieand

[ 290 Pa. Super. Page 330]

The principal issue in this case is whether an oral expression of dissatisfaction for and intent to alter a tentative trust constituted a valid revocation of the trust. The trial court held that the trust had been revoked and ordered the proceeds of the trust savings account paid to the estate of the deceased depositor. We disagree and reverse.

During her life time, Mary DePaola Vittorio had opened an account at the Roxborough ___ Manayunk Federal Savings & Loan Association in her name as trustee for a nephew

[ 290 Pa. Super. Page 331]

    and two nieces, Alessandro Tarsia, Elena Tarsia and Angelina Tarsia, who are citizens of Italy. She died on December 19, 1978, leaving a will dated January 4, 1973. Her executrix, Anna Sabre, filed in the Orphans Court of Montgomery County a petition for an injunction restraining the Savings & Loan Association from distributing $15,000.00 remaining in the account to the named beneficiaries. She also filed a supplemental petition claiming the account as an asset of the estate. After several hearings, the court found that the tentative trust had been revoked and granted the relief requested. Exceptions were dismissed and this appeal followed.*fn1

The basis for the court's conclusion that the tentative trust had been revoked consisted of statements made by decedent on November 19, 1978, while she was hospitalized. She then told Anna Sabre, in the presence of the latter's daughters, that she had "made a mistake" about the "certificate" going to her nieces and nephew and that she wanted the money to go, instead, to her adopted daughter, Anna Sabre. She asked her daughter to obtain the certificate and bring it to her so that it might be changed. Her daughter failed to comply with this request, believing that her mother would recover and that hasty action was unnecessary. The mother's health became worse, however, and a few days later she lapsed into a coma. Although she subsequently regained consciousness, her mental acuity was suspect at all times thereafter.

[ 290 Pa. Super. Page 332]

The doctrine of tentative trusts was born in New York in the case of In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904). The doctrine was adopted as a part of the law of Pennsylvania in Scanlon's Estate, 313 Pa. 424, 169 A. 106 (1933). It is now defined in the Restatement of Trusts 2d, ยง 58, as follows:

"Where a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and to use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the ...


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