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ESTATE BRIDGET DEMBIEC v. MARY BOCZAR (11/10/83)

filed: November 10, 1983.

IN RE ESTATE OF BRIDGET DEMBIEC, DECEASED, APPEAL OF HENRIETTA THIER, THERESA FENNICK, ELAINE MEYERS, LEON RAYKOVITZ, HAROLD RAYKOVITZ, HELEN HOFFMAN, LOUISE BILAHORKA, EDWARD HENDRICKS AND LEONARD HENDRICKS, APPELLANTS,
v.
MARY BOCZAR, ADMINISTRATRIX



No. 194 Philadelphia 1982, Appeal from the Order of December 23, 1981, Court of Common Pleas, Luzerne County, Civil No. 1681 of 1979.

COUNSEL

Joseph G. Albert, Wilkes-Barre, for appellants.

Richard James Confair, Wilkes-Barre, for appellee.

Hester, Johnson and Popovich, JJ. Popovich, J., concurs in the result.

Author: Johnson

[ 321 Pa. Super. Page 518]

This case concerns the ownership of the monies in two savings accounts on deposit at the Northeastern Bank of Pennsylvania in Wilkes-Barre, Pennsylvania.

Prior to August 1979, both accounts were solely owned by Bridget Dembiec. On August 31, 1979, Mary L. Boczar returned an executed signature card to the bank, to have the first of Miss Dembiec's accounts converted to joint ownership. Then on October 9, 1979, Miss Dembiec affixed her mark to a second signature card and the second account was converted to joint ownership. Miss Dembiec (hereinafter decedent) passed away intestate on October 10, 1979.

[ 321 Pa. Super. Page 519]

At the time of decedent's death, both accounts were titled in her name and that of her sister, Mary L. Boczar. The balances in each of the two accounts when decedent died were $58,957.65 and $56,726.72. Shortly after decedent's death Mrs. Henrietta Thier, an appellant herein, petitioned Orphans' Court contending that the balances of the accounts did not belong to Mary L. Boczar, appellee herein, and seeking to have the accounts inventoried as part of the decedent's estate and distributed to the intestate heirs.*fn1 After a hearing on the merits of the petition, Orphans' Court decreed that the monies on deposit belonged to appellee. Whereupon this appeal followed.

The decree of Orphans' Court was based on the testimony of several witnesses. Based on the evidence of decedent's intent presented in the deposition testimony of decedent's attorney, Ralph Johnston, Sr., coupled with the testimony of a Northeastern Bank employee, one Joan Dougherty, Orphans' Court concluded that the evidence did not clearly and convincingly show that decedent did not intend to create a survivorship account when she executed the first signature card on August 31, 1979. Concerning the October 9th transaction, Orphans' Court, relying on the testimony of an acquaintance of decedent, Mrs. Dorothea Johnson, concluded that the evidence did not clearly and convincingly indicate that decedent's intentions in executing the second signature card were other than to create a survivorship account.

On appeal, the findings of an Orphans' Court judge who hears testimony without a jury are entitled to the weight of a jury verdict. In re: Masciantonio's Estate, 396 Pa. 16, 151 A.2d 99 (1959). This rule is particularly

[ 321 Pa. Super. Page 520]

    applicable "to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony." Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans' Court's findings, our task is to ensure that the record is free from legal error and to determine if the Orphans' Court's findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re: Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). However, we are not limited when we review the legal conclusions that Orphans' Court has derived from those facts. In re: Ischy Trust, 490 Pa. 71, 415 A.2d 37 (1980).

We turn now to consider the arguments of appellants and the evidence as to each of the separate transactions when the decedent added appellee's name to her bank accounts.

August 31st Transaction

In Pennsylvania the ownership of funds held in a joint account is governed by statute. See 20 Pa.C.S.A. ยง 6301 et seq. The Decedents, Estates, and Fiduciaries Code provides that:

(a) Joint account. -- Any sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a ...


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