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JUDSON POST ESTATE v. COMMONWEALTH BANK AND TRUST COMPANY. APPEAL EUGENE MARRONE (03/16/83)

decided: March 16, 1983.

IN RE JUDSON POST ESTATE, HELEN ERB, EXECUTRIX
v.
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

COUNSEL

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.

Author: Mcdermott

[ 500 Pa. Page 422]

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 ...


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