Cilvik's Estate, In re

• Decision Date: 02 July 1970
• Citation: 439 Pa. 522,267 A.2d 836
• Parties: In re Estate of Apolinary S. CILVIK, Deceased. Appeal of Matilda VAN DYKE.
• Court: Pennsylvania Supreme Court

Page 836

267 A.2d 836

439 Pa. 522

In re Estate of Apolinary S. CILVIK, Deceased Appeal of Matilda VAN DYKE.

Supreme Court of Pennsylvania.

July 2, 1970.

[439 Pa. 523] Joseph Serling, Serling, Olexy, Cohen and Moses, Wilkes-Barre, for appellant.

Harry Hiscox, Rosenn, Jenkins & Greenwald, Wilkes-Barre, for appellee Regina Cilvik, Executrix.

Before BELL, C.J., and JONES, COHEN, EAGEN O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

This appeal involves the ownership of a joint savings account opened under one of those perplexing and vexing bank signature cards. Testator left an estate of approximately $13,000, excluding this bank account of $6,750.93.

Apolinary Cilvik died testate on October 19, 1966. His will dated May 26, 1966 was probated October 27, 1966; on that same day letters testamentary were issued to his executrix, Regina Cilvik, one of the testator's daughters. ¹

On October 23, 1966, four days after the testator's death, some members of his family met at Regina Cilvik's home with Alexander Laffey, a member of the bar and scrivener of testator's will. Laffey disclosed the contents of testator's will, which contained numerous devises and bequests to his children and grandchildren, and then discussed the administration of the estate. During the conference with Laffey, a passbook to a savings account at the Franklin Federal Savings and Loan Association of Wilkes-Barre was produced by Regina Cilvik, testator's executrix.

Laffey, after examining the passbook and discovering that It was in the joint names of the testator and Matilda Van Dyke, another of testator's daughters, questioned Mrs. Van Dyke concerning the ownership of the account. Laffey, on direct examination, testified: 'Mrs. Van Dyke was seated directly across from me at the table. My first question was to Mrs. Van Dyke, 'Did you ever see this bankbook before, Mrs. Van Dyke?' She said, 'No.' I said, 'Do you know that your name is on this bankbook together with your father?' She said, 'No.' I asked her, 'Do you concede that all of the funds that are on deposit in this bankbook are the property of your late father and will be administered in this estate?' She said, 'Yes'. I asked her then, 'Do you claim any ownership in the deposits represented in this bankbook?' She said, 'No.' I said, 'Are you willing to come to the bank at the earliest practicable moment and sign all necessary papers to withdraw the funds in this account so that they would be deposited in the estate of your late father and distributed in his estate?', and she said 'Yes'. I then asked her, 'Would it be convenient for you to come to my office tomorrow for the purpose of making the transfer of these funds into a new account for the benefit of the estate, to be distributed in accordance with the will of the decedent?' She said, 'Yes'. 'Will nine o'clock in the morning be convenient for you to come to my office?', and she said, 'Yes'. I said, 'Very well then, we will have an appointment for you to be in my office at nine o'clock the next morning to make the transfer'.'

Mrs. Van Dyke failed to keep her nine o'clock appointment with Laffey, but did appear at his office at approximately 11 o'clock that same morning. She then advised Laffey that she had consulted private counsel and that she was not going to transfer the money in the savings account to the estate, because her father had made a gift of the funds to her.

On October 28, 1966, Mrs. Van Dyke withdrew the money on deposit in this savings account. Since the bank regulations required that all withdrawals be accompanied by a passbook, and Laffey still had the passbook in his possession, Mrs. Van Dyke signed a sworn affidavit 'that the savings share account book * * * has been lost. Diligent search has been made for said document and it cannot be found.'

On February 21, 1968, testator's executrix, Regina Cilvik, petitioned the Luzerne County Orphans' Court for a rule to show cause why Matilda Van Dyke should not be compelled to turn over to the estate the sum of $6,750.93 plus interest, said sum being the amount on deposit in the savings account in question at testator's death. Mrs. Van Dyke filed an answer to the petition and a hearing was held on April 24, 1968. At the hearing, Matilda Van Dyke submitted into evidence a bank signature card ² which was signed by herself and the testator for the savings account in question. This card provided in relevant part:

'Jount Account (Either Signature)

Account No. 37801

(1) Cilvik (Last Name) Apolinary (First Name) S. (Middle Name)

(2) Van Dyke (Last Name) Matilda (First Name) Mrs. (Middle Name)

The undersigned hereby apply for a membership and for a savings account in the

Franklin Federal Savings and Loan Association of Wilkes-Barre and for the Issuance of evidence of membership in the approved form ³ in the joint names of the undersigned as joint tenants with the right of survivorship and not as tenants in common. Specimens of the signatures of the undersigned are shown below and the Association is hereby authorized to act without further inquiry in accordance with writings bearing any such signature and the terms of the reverse side of this card, which are incorporated herein, it being understood and agreed that Any one of the undersigned ⁴ who shall first act shall have power to act in all matters related to the membership and any savings account in said Association held by the undersigned, whether the other person or persons named in the account be living or not. The withdrawal may be made or balance on deposit in any such account may be paid or delivered in whole or in part to Any one of the undersigned ⁴ who shall first act, and such payment or delivery or a receipt or acquittance signed by Any one of the undersigned ⁴ shall be a valid and sufficient release and discharge of said Association.'

The lower Court held that the money on deposit in the bank savings account at testator's death was part of his estate. Accordingly, the Court ordered Mrs. Van Dyke to deliver this money to the executrix of the estate of Apolinary Cilvik. The Court dismissed Mrs. Van Dyke's exceptions, and affirmed its original Decree.

Appellant contends in this appeal that the Orphans' Court erred because (1) it did not hold that the parol evidence rule was applicable to the present factual situation and barred the present claim, and (2) in the alternative, even if the aforesaid parol evidence was admissible, it was insufficient when considered with all the other evidence to overcome the prima facie evidence of a gift inter vivos established by the signed bank signature card.

In Berdar's Estate, 404 Pa. 93, 170 A.2d 861, the Court said (page 95, 170 A.2d page 862): 'When a depositor creates a joint savings account with right of survivorship, and a signature card so stating is signed by both parties, a prima facie inter vivos gift to the other party and of the creation of a joint tenancy with right of survivorship is established. Furjanick Estate (375 Pa. 484, 100 A.2d 85); Lochinger v. Hanlon, 348 Pa. 29, 33 A.2d 1.'

"* * * Although the decision in this class of case Often depends upon the exact wording of the deposit account and the signature card and the agreement, if any, accompanying it, the law and the proof required in such cases are well settled: Sivak's Estate, 409 Pa. 261, 185 A.2d 778; Cox's Estate, 405 Pa. 444, 176 A.2d 894. * * *" Brozenic's Estate, 416 Pa. 204, 207, 204 A.2d 918, 920.

Evidence to overcome this prima facie inter vivos gift must be clear, precise and convincing. Slavinsky's Estate, 420 Pa. 504, 218 A.2d 125; Brozenic's Estate, 416 Pa. 204, 204 A.2d 918, supra; Bunn's Estate, 413 Pa. 467, 198 A.2d 518; Fenstermaker's Estate, 413 Pa. 645, 198 A.2d 857; Berdar's Estate, 404 Pa. 93, 170 A.2d 861, supra.

Appellant contends that oral evidence was not admissible to rebut the prima facie inter vivos gift established by the signed bank signature card because of the parol evidence rule. We disagree.

The signature card in this case is almost identical with the card in Berdar's Estate, 404 Pa. 93, 170 A.2d 861, supra, and what this Court said in that case is equally applicable here. In Berdar, the bank signature card ⁵ provided:

'JOINT SAVINGS ACCOUNT Account No. S 36984

(Subject to Order of Either)

(1) BERDAR (Surname); MITER (First Name); _ _ (Middle Name)

(2) MALUTINOK (Surname); MARY (First Name); _ _ (Middle Name)

(above to be typed)

The undersigned hereby Apply for a savings account in the FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF HOMESTEAD, PA.

In the joint names of the undersigned as joint tenants, with the right of survivorship, and not as tenants in common. (Footnote omitted.) Specimens of the signatures of the undersigned are shown below and the Association is hereby authorized to act without further inquiry in accordance with writings bearing either such signature; it being understood and agreed that any one of the undersigned who shall first act shall have power to act in all matters related to the membership and any account in said Association held by the undersigned, whether the other person or persons named in the account be living or not. The withdrawal or redemption value of any such account or other rights relating thereto may be paid or delivered in whole or in part to any one of the undersigned, who shall first act, and such payment or delivery or a receipt or acquittance signed by any one of the undersigned shall be a valid and sufficient release and discharge of said Association.'

This Court held that the above signature card was not a complete...