Elliott Estate

106 A.2d 453, 378 Pa. 495, 1954 Pa. LEXIS 614

• Court: Supreme Court of Pennsylvania
• Decided: June 28, 1954
• Docket: Appeals, 2 and 3
• Status: Published

Opinions

Opinion by

Mr. Justice Allen M. Stearne,

These appeals are from a decree of the Orphans’ Court of York County. They involve the ownership of eleven joint and several certificates of deposit found in a decedent’s safe deposit box after his decease. Six of the certificates are in the names of decedent and Ms brother Paul; four are in the names of decedent and his sister Grace and one in the names of decedent and his brother Robert. In a carefully considered opinion by the learned auditing judge, it was ruled that all the certificates were owned by the decedent since no valid inter vivos gift was proved and the intended testamentary disposition was ineffective.

We need not recite in detail all of the facts found by the court below. It will suffice to state that named banks issued certificates of deposit certifying that decedent or a named brother or sister “has/have deposited in said bank the sum of-dollars, payable to his/her/their order, on the — day of--.” On the face of the six certificates in the joint names of Paul and the decedent is stamped “As joint tenants with right of survivorship and not as tenants in common.” On the face of four certificates on which the name of the sister Grace appears and also on the one relating to the brother Robert is stamped the words “Joint owners, payable to either, and after death of one to the survivor.”

It is asserted in the opinion that no appellate court decision or discussion has been found relating to joint certificates of deposit in the circumstances here presented. Our own research has disclosed none. The basic principles which govern other types of bank deposits are clearly applicable to certificates of deposit.

The language in these joint certificates does not conclusively establish that the survivor is the owner of the fund. As in the case of a savings deposit book, inquiry must be made concerning the facts and all of the surrounding circumstances when the certificate of deposit was obtained.

The cash certified in all the certificates of deposit was originally that of decedent. No portion belonged to any of the brothers or sister. The transaction, therefore, does not present a situation where a fund was held by decedent merely as custodian: Carr Estate, 371 Pa. 520, 92 A. 2d 213.

Since there is no evidence of a contract between decedent and his brothers and sister it requires proof of the existence of an inter vivos gift in order for the survivor to secure the fund.

When a bank account is opened with donor’s own money and the effect of the language used is to confer upon the donee only the right to withdraw money, there is no inter vivos gift with right of survivorship: Flanagan v. Nash, 185 Pa. 41, 39 A. 818; Zellner's Estate, 316 Pa. 202, 172 A. 715; Romig v. Denkel, 326 Pa. 419, 192 A. 657; Kata Estate, 363 Pa. 539, 70 A. 2d 351. Flanagan v. Nash, supra, is perhaps the leading case in this field. In that case a person deposited her own money in a savings fund in the joint names of herself and another, under a stipulation in the deposit book reading (p. 43) : “‘Either party to draw, and in case of death of either of them, the survivor shall have full power to withdraw the deposit as if the same had been duly transferred to such survivor.’ ” We held that after death of the owner of the fund the survivor could not, in the absence of any other evidence, establish title to the fund either as a gift inter vivos or as a donatio mortis causa. We said (p. 45) : “There is nothing to show that if the defendant drew the money he could keep it as his own, and without such words no title by way of gift could pass.”

In Mader v. Stemler, 319 Pa. 374, 179 A. 719, we held that a savings fund account in the name of the depositor or his daughter, standing alone, was insufficient to establish title to the daughter upon the decease of the father. However, in another account of the same decedent the parties executed an agreement that such fund belonged to them jointly and that upon the death, of either the fund should pass to the survivor. This writing was held to constitute the requisite proof of an inter vivos gift. Speaking through Justice Linn, we said (p. 379) : “... On the main question, the learned chancellor thought the case was similar in fact to Flanagan v. Nash, supra, and Grady v. Sheehan, 256 Pa. 377, 100 A. 950, in which it was held that the evidence was insufficient to establish title to the fund as a gift inter vivos. In neither of those cases was there, as in appeal No. 9, a writing signed by the parties, completely expressing the intention to vest by assignment a present joint interest in the chose in action with the right of survivorship. This distinction was noted in Mardis v. Steen, [293 Pa. 13, 141 A. 629]; Crist’s Est., [106 Pa. Superior Ct. 571, 162 A. 478], 580; Gallagher’s Est., [109 Pa. Superior Ct. 304, 167 A. 476], 311.

“It is conceivable that, while invested with a joint interest in the bank’s obligation, the appellant by some other contract with Stemler for the benefit of all the children may have received the money for their benefit. Plaintiffs seem to have proceeded on that theory. But the evidence is insufficient to support such a contract. The measure of proof required to show a trust of that character must be ‘clear, precise and unequivocal’: Washington’s Est., 220 Pa. 204, 205, 59 A. 747; Hollis v. Hollis, 254 Pa. 90, 98 A. 789. In this case the evidence does not meet that measure. . . .”

See also: Reap v. Wyoming Talley Trust Go., 300 Pa. 156, 150 A. 465; Culhane’s Estate, 334 Pa. 124, 5 A. 2d 377, and Fuller v. Fuller, 372 Pa. 239, 93 A. 2d 462. In the case now before us there is neither a writing signed by the parties nor proof of an agreement expressing the intention to vest, by assignment, a present joint interest in the certificates of deposit with the right of survivorship. No valid inter vivos gift has been proved. Our reading of the testimony coincides with the excellent summary of President Judge Gross when he said that decedent “wanted to give away Ms money and keep it at the same time.” Obviously decedent did not intend the alleged donees to receive these funds until after his decease. Such an attempted disposition, being testamentary, was rendered inoperative by the execution and probate of his will.

Decree affirmed at cost of appellants.