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GENE O. BROWN v. CAROL LOUISE BROWN (02/27/84)

submitted: February 27, 1984.

GENE O. BROWN
v.
CAROL LOUISE BROWN, APPELLANT



No. 00497 PGH 82, Appeal from the Order of the Court of Common Pleas of Somerset County, Civil Division, at No. 518 Civil 1979.

COUNSEL

James B. Yelovich, Somerset, for appellant.

James R. Di Francesco, Johnstown, for appellee.

Cavanaugh, Wickersham and Hoffman, JJ.

Author: Hoffman

[ 330 Pa. Super. Page 326]

Appellant contends that she has a joint interest in the coins collected by appellee, her husband, prior to their marriage. She argues that appellee, by putting the coins into jointly held safe deposit boxes after their marriage, created an inter vivos gift in her favor. Because the requirements for a valid gift were not met in this case, we affirm.

The parties were married in June, 1964, and have five children. On June 25, 1979, they separated subsequent to appellant's filing a petition for protection from abuse and appellee's court-ordered eviction from the family residence. On July 5, 1979, appellant removed a coin collection from the parties' jointly held safe deposit boxes at Johnstown Bank & Trust. Consequently, appellee filed an action for replevin of the coins in January, 1980. Following a June 24,

[ 330 Pa. Super. Page 3271981]

, non-jury trial, the lower court entered the following order on April 14, 1982: (1) those coins owned by appellee at the time of his marriage to appellant are his property and must be returned to him forthwith; (2) those coins purchased during the marriage are to be held in trust by appellant's attorney for proper distribution in the parties' divorce action;*fn1 and (3) the parties (and their counsel) are to meet within 30 days to make the division. This appeal followed.

In determining whether a tenancy by the entireties has been created, the intention of the husband and wife is controlling and will be given effect. Uccellini v. Uccellini, 423 Pa. 273, 223 A.2d 694 (1966); Brenner v. Sukenik, 410 Pa. 324, 189 A.2d 246 (1963). Our Supreme Court has outlined the principles of law which are applicable to an alleged gift of the contents of a jointly owned safe deposit box, as follows:

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. The burden of proof is upon the claimant to prove the gift by clear and convincing evidence: Tomayko v. Carson, 368 Pa. 379, 83 A.2d 907. Where an owner of a safe deposit box and his donee execute a contract or lease which recites that the property therein is the joint property of the lessees, with right of survivorship, and that the lessees acknowledge the receipt of two keys to said box -- this creates a prima facie case of a valid inter vivos gift of a joint interest

[ 330 Pa. Super. Page 328]

(with right of survivorship) in said property. The majority view appears to be that parol evidence is admissible (a) to prove an intention, or lack of intention, to make a gift as well as (b) delivery or failure of delivery, because the instrument is considered to be incomplete or (sometimes) equivocal . . . . However, it is established that the parol evidence ...


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