decided: March 16, 1983.
IN RE JUDSON POST ESTATE, HELEN ERB, EXECUTRIX
COMMONWEALTH BANK AND TRUST COMPANY. APPEAL OF EUGENE MARRONE, INTERPLEADED PARTY PLAINTIFF
NO. 80-3-812, Appeal from the Order Entered October 21, 1980 in the Court on Common Pleas of Bradford County, Orphans' Court Division, No. 3 May Term, 1983
Robert J. Landy, Sayre, for appellant.
Michael J. Dowd, Sayre, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., concurs in the result.
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OPINION OF THE COURT
This is a claim for the contents of a decedent's safe deposit box. Appellant contends a gift inter vivos.
We have often stated that a gift among the living must be intentionally made by a delivery of the subject matter of the gift to the donee by the donor; a delivery, actual or constructive, that puts the subject matter beyond the control of the donor.
One who claims a gift inter vivos must, before he may himself testify to the donative intent, establish a prima facie case that the subject matter was delivered to him beyond the power of recall by the donor.*fn1
We have several times dealt with the contents of a safe deposit box and have set down rules directly applicable to the case at bar:
To constitute a valid gift inter vivos of the contents of a safe deposit box, two essential elements are requisite: An intention to make an immediate gift, and such an actual or constructive delivery to the donee (a) as to divest the donor of all dominion and control, or (b) if a joint tenancy is created, as to invest in the donee so much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein.
In Re Secary's Estate, 407 Pa. 162, 166, 180 A.2d 572, 574 (1962). We have said these elements may only be established by evidence which is clear, direct, precise, and convincing. In Re Chiarra's Estate, 467 Pa. 586, 359 A.2d 756 (1976), affirmed 478 Pa. 630, 387 A.2d 666 (1978). The trial court found, and we agree, that the appellant's evidence failed to meet these standards.
The court found that appellant had not established prima facie the existence of a gift and therefore, his own testimony
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was incompetent under the "Dead Man's Act".*fn2 The court found further that even were it to consider all the testimony placed on record, including that of appellant, the necessary elements had not been established.
The two witnesses offered by claimant to establish the prima facie case failed of their mission when their testimony proved that, whatever intentions might have existed in the mind of the decedent, one was that the money was to be available if needed by the decedent.*fn3
Decedent had the right to use the funds during his lifetime. Hence, the dominion and control that must be relinquished by the donor was qualified by its availability for decedent's needs. Legal ownership of the safe deposit box was in decedent. That claimant was the only one who ever used the box does not argue that its contents were his or
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kept for reasons other than those produced by his own evidence. Appellant failed to carry the high burden of proving an inter vivos gift.
The decree of the Orphans' Court is hereby affirmed, with each party to pay its own costs.