In re Estate of Crist

• Decision Date: 10 October 1932
• Docket Number: 207-1932
• Citation: 106 Pa.Super. 571,162 A. 478
• Parties: In re: Estate of I. L. Crist
• Court: Pennsylvania Superior Court

162 A. 478

106 Pa.Super. 571

In re: Estate of I. L. Crist

No. 207-1932

Superior Court of Pennsylvania

October 10, 1932

Argued April 11, 1932

Appeal by Etta Riderman, Executrix from order of O. C., Erie County September T., 1931, No. 122, in the case of In The Matter of the Estate of I. L. Crist.

Exceptions to an executrix's account. Before Waite, J.

The facts are stated in the opinion of the Superior Court.

The court directed the accountant to restate her account. Accountant appealed.

Error assigned, among others, was the order of the court.

Affirmed.

Albert L. Thomas, of Thomas and Kiebort, for appellant.

Carlton M. Randall, and with him Clarence T. Bryan, and Elmer L Evans, for appellees.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Stadtfeld, J.

This is an appeal by Etta Riderman, executrix of the last will and testament of I. L. Crist, late of Erie County, deceased, from an order of the orphans' court of said county, sustaining certain exceptions to her account, directing her to restate her account, and to include therein, inter alia, as assets of the estate, the moneys in a certain account in the First National Bank of Albion, Pennsylvania, which had been included in the inventory of the personal estate of decedent. The accountant claimed credit for the amount of this account, $ 2,315.26, as having been improperly included in the appraisal of decedent's assets.

I. L. Crist, the decedent, died testate on January 25, 1930, leaving to survive him a widow, Allie Crist, and a sister, Etta Riderman, a resident of Los Angeles, California. By the terms of his will, dated November 17, 1924, and duly probated on April 17, 1930, one dollar is bequeathed to his wife, Allie Crist, and all the rest of his property to his sister, Etta Riderman, named as executrix in the will, to whom letters were issued April 17, 1930. An inventory of the personal property was filed on May 8, 1930, giving the value of the personal estate at $ 2,651.50 which included the account in the First National Bank of Albion, Pennsylvania, amounting to $ 2,315.26.

On August 12, 1930, the executrix filed an account, claiming credit for the amount of the bank account as having been improperly included in the appraisement.

Exceptions were filed by the widow and a creditor of the estate to the credit, inter alia, of $ 2,315.26, claimed by accountant, and described in the account as "account in First National Bank of Albion, improperly included in the appraisement."

Testimony was taken, and the exceptions argued before Clark, J., whose term of office expired before a decision was rendered. A re-argument was had before Waite, J., who, in an opinion filed, sustained the exceptions to the allowance of this credit on behalf of the accountant, and directed the accountant to restate her account. From that order this appeal is taken.

It appears from the testimony that the decedent maintained an account in the First National Bank of Albion, Pennsylvania, which was opened May 23, 1924. The passbook was in the possession of the decedent during his lifetime, and was found among his effects at the time of his death, showing a balance in the account of $ 2,315.26. Sometime previous to the decedent's death the account had been changed, and at the time of his death, read as follows:

Outside of passbook: "I. L. Crist, Albion, Pa., or Mrs. Etta Riderman, 4259 Southwestern Ave., A. V., Los Angeles, Calif."

On the inside: "I. L. Crist, or Mrs. Etta Riderman, joint account payable to either or the survivor."

On the bank ledger: "I. L. Crist, Albion, Pa., or Mrs. Etta Riderman, Los Angeles, Calif., Bronson Ave."

The name of I. L. Crist appeared alone on the signature card of the bank, and no other notation.

These changes, it was admitted at the hearing, and so stipulated on the record, were made at the instance of I. L. Crist, the decedent.

There is no evidence that this passbook was ever in the possession of the claimant, or that she had any knowledge of it, nor that she was ever in the bank prior to the decedent's death. The account was apparently opened by the decedent and all deposits and withdrawals up to the time of his death, were made by him.

The sole question to be decided is whether the action of the decedent, in directing the changes referred to, had the effect of vesting, at the time of his death, the balance to the credit of said account in Etta Riderman, the appellant, or did it constitute a part of his estate.

The solution of this question depends on the effect of the changes in the form of the account with the bank made at the instance of the decedent. The money in dispute was the property of I. L. Crist. The claimant had no ownership or interest of any kind in it.

The only theory on which this account, or any interest therein, could have passed to claimant was by means of a gift inter vivos which would be an intent to give followed by actual delivery, or what was equivalent thereto, to the donee of the gift.

In the leading case of Flanagan v. Nash, 185 Pa. 41, 39 A. 818, it was held that when a person deposits his own money in the joint name of himself and another under a stipulation in the deposit book that either may draw the fund, or the survivor may draw it, the other person, after the death of the owner of the fund cannot, in the absence of any other evidence, establish title to the fund, either as a gift inter vivos, or as a donatio causa mortis.

In that case, the claimant was with the owner of the fund when he deposited the money in the joint names of herself and the claimant. On the margin opposite the signatures, the words, "either to draw" were entered by the treasurer of the association in which the deposit was made. A book was also handed her which had the words stamped upon it, "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."

Quoting from the opinion of the court in that case by Mr. Justice Green (44):

"The difficulty in the way of the defendant's contention in this regard is, that the decedent never parted with her title in her lifetime, and hence there was no delivery of the subject of the alleged gift. She had the right to draw out the whole of the money up to the moment of her death, and for that reason she still held her title to the money. It never passed away from her while she lived, and therefore, there was no delivery. There is no difference in this respect between gifts inter vivos and gifts causa mortis. Actual delivery of the subject of the gift is just as necessary in the one case as in the other. The only material difference between the two is that there is a right of reclamation in the latter which does not exist in the former. This whole subject has been so fully illustrated by our Brother Williams, in the case of Walsh's Appeal, 122 Pa. 177, 15 A. 470, that any further reference to authorities is unnecessary. He there said, 'A gift is more than a purpose to give, however clear and well settled the purpose may be. It is a purpose executed. It may be defined as the voluntary transfer of a chattel, completed by the delivery of possession. It is the fact of delivery that converts the unexecuted and revocable purpose into an executed and irrevocable contract. All gifts are necessarily inter vivos, for a living donor and donee are indispensable to a valid donation; but when the gift is prompted by the belief of the donor that his death is impending, and is made as a provision for the donee, if death ensues, it is distinguished from the ordinary gift inter vivos, and called donatio mortis causa. But by whatever names called the elements necessary to a complete gift are not changed. There must be a purpose to give; this purpose must be expressed in words or signs; and it must be executed by the actual delivery of the thing given to the donee or some one for his use. In every valid gift a present title must vest in the donee, irrevocable in the ordinary case of a gift inter vivos, revocable only upon the recovery of the donor in gifts mortis causa.'

"These words and many more to a similar effect contained in the opinion, are absolutely destructive of any claim of title by way of gift, on the part of the defendant. Moreover, the statement in the bank books that either might draw, or the survivor might draw, does not at all establish a title as owner in the defendant. It is a mere right to draw the money that is conferred. 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...