In re Berdar's Estate

• Citation: 404 Pa. 93,170 A.2d 861
• Parties: In re ESTATE of Mitro BERDAR, Deceased. Appeal of Mary MALUTINOK.
• Decision Date: 22 May 1961
• Court: United States State Supreme Court of Pennsylvania

170 A.2d 861

404 Pa. 93

In re ESTATE of Mitro BERDAR, Deceased. Appeal of Mary MALUTINOK.

Supreme Court of Pennsylvania.

May 22, 1961.

Francis Taptich, Pittsburgh, for appellant.

R J. Lucksha, Pittsburgh, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK and EAGEN, JJ.

BENJAMIN R JONES, Justice.

This is a controversy over the ownership of $11,800, the amount on deposit in the First Federal Savings and Loan Association of Homestead [Association] in a joint savings account with the right of survivorship held in the names of Mitro Berdar [Berdar] and Mary Malutinok [Malutinok].

Berdar died intestate, on February 25, 1958, survived by a wife and one grandchild, both of whom reside within the jurisdiction of the Soviet Union. Berdar's personal representative, by petition and citation under Section 301(13) of the Orphans' Court Act of 1951, ^[1] instituted an action in the Orphans' Court of Allegheny County [before Judge Cox] to determine the title to this savings account. ^[2] It was averred that Berdar was the sole owner of the amount on deposit in the savings account and 'that whatever color of title [Malutinok] alleges to have in the disputed fund was obtained by her through fraud, accident and mistake due to the illiteracy, ignorance and physical condition of [Berdar]' and that the creation of the account was without donative intent. Upon issue joined and hearing held, Judge Cox entered a decree disallowing Malutinok's claim of ownership and awarded the amount in the savings account to Berdar's estate upon the ground the creation of the savings account was a mistake and not accompanied by donative intent on Berdar's part. From the decree of the court en banc dismissing exceptions to Judge Cox's decree, Malutinok has appealed.

Malutinok's argument is three-fold: (1) that the reception in evidence of the testimony presented by Berdar's personal representative violated the parol evidence rule; (2) that such testimony was irrelevant and incompetent; (3) that, assuming, arguendo, the relevancy , competency and admissibility of such testimony, such testimony lacks the quality of proof--clear, precise and convincing--necessary to sustain the decree of the court below.

Joint bank accounts have been litigated quite extensively in Pennsylvania and the applicable principles of law rather clearly defined by recent decisions of this Court. The question in this class of cases often depends upon the exact wording of the signature card or agreement, and the disposition of the cases usually is on the basis of whether a gift inter vivos was effected. Furjanick Estate, 375 Pa. 484, 493, 100 A.2d 85. 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, supra; Lochinger v. Hanlon, 348 Pa. 29, 33 A.2d 1. However, where the deposit and signature card contain nothing more than a statement that a joint tenancy with right of survivorship is created, other evidence is admissible to establish the lack of donative intent on the theory that the deposit, accompanied by such a writing, and nothing more, is incomplete and equivocal. Armour Estate, 397 Pa. 262, 267, 154 A.2d 502; Furjanick Estate, supra; Fell Estate, 369 Pa. 597, 87 A.2d 310.

In the instant case, the language of the signature card and the deposit certificate fails to disclose with any clarity the depositor's intent. The signature card recites that the parties applied for 'a savings account * * * in the joint names of [Berdar and Malutinok] as joint tenants with right of survivorship, and not as tenants in common.' At the bottom of the signature card explanation of the asterisk (} is given: '*Joint Tenants, with right of survivorship, constitute one member, as a partnership constitutes one member'. Such explanation, patently ambiguous, would seemingly equate a partnership with a joint tenancy.

An examination of the remaining wording of the signature card fails to disclose any language importing an absolute gift to Malutinok, any transfer of ownership from Berdar to Malutinok or any prohibition against unilateral revocation. Nothing on the card indicates or informs the depositors that the funds are to be owned by them jointly, that upon death of either of them the balance of the account will become the absolute property of the survivor, nor is there any stipulation or provision that the agreement is irrevocable except when agreed upon by both parties. As a matter of fact, this signature card simply and solely sets forth the creation of a joint tenancy with right of survivorship ^[3] which fact, as pointed out above, does not bar the admissibility of evidence--such as introduced in the case as bar--of acts and conduct on the part of the deceased depositor which reveal, manifest or indicate the depositor's intention at the time of the creation of the account.

The admission of the testimony offered by Berdar's personal representative did not violate the parol evidence rule nor was it at variance with rules recognized by this Court and the testimony itself was both competent and relevant to the issue raised.

The sole remaining question is whether the evidence produced by Berdar's representative was so clear, precise and convincing as to overcome the prima facie evidence of donative intent established by Malutinok when she proved the opening of the account and placed the signature card and pass book into evidence.

An examination and scrutiny of the evidence offered by Berdar's representative in proof of his averments that the account was created by Berdar by reason of fraud, accident, and mistake and without donative intent reveals the propriety of the decree entered by the court below.

Berdar, a resident of Munhall, Allegheny County, emigrated to this country in 1913 from Sucha, Austria-Hungary, leaving behind in that country a wife...