Katz v. Lockman
| Decision Date | 24 March 1947 |
| Docket Number | 3294 |
| Citation | 356 Pa. 196,51 A.2d 619 |
| Parties | Katz, Admrx., v. Lockman, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 13, 1947
Appeal, No. 171, Jan. T., 1946, from decree of C.P. No. 1 Phila. Co., Dec. T., 1943, No. 3128, in case of Minnie Katz Admrx., Estate of Samuel Lockman, deceased, v. Harvey Lockman. Decree affirmed; reargument refused April 14, 1947.
Bill in equity. Before KUN, J.
Adjudication filed ordering defendant to turn over to plaintiff certain bonds and cash. Defendant appealed.
Decree affirmed, at defendant's costs.
Lemuel B. Schofield , with him John B. Brumbelow , for appellant.
Harry M. Miller, with him Hed Stein , for appellee.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.
Samuel Lockman turned over to his son, Harvey, $3,000 in cash for the purpose of defraying certain personal expenses, and he also transferred his United States Savings bonds of the aggregate maturity value of $7,300 from his own name to that of himself and Harvey with right of survivorship. Following his death, his daughter, Minnie Katz, Administratrix of his estate, sought by the bill in equity filed in this case to compel defendant, Harvey Lockman, to account for the $3,000; and also to have set aside the transfer of the bonds and have them delivered to her, on the ground that defendant, by fraud and undue influence, had induced the father to place them in their joint names. After hearing on bill and answer, the learned Chancellor decreed that defendant pay to plaintiff $1,535.90, with interest, and directed that the bonds be transferred and delivered to her. The court en banc dismissed the forty-eight exceptions filed by defendant and entered a final decree affirming the action of the Chancellor. Defendant then appealed.
The father was the owner of the United States bonds and had them registered in his own name. Some of them had been purchased by the father himself, but most had been purchased with his money by his daughter. They were on deposit in his own safety deposit box in the Gimbel Brothers Bank in Philadelphia. He had suffered from a serious illness for about six months prior to his death, at the age of 72, on February 27, 1944, and for considerable periods during that time was hospitalized in Philadelphia and in Boston. Except to sign his name, he could not read or write. His personal relations with his son, the defendant, were strained and unfriendly for a long time prior to July, 1943, when he began to make his home with the son.
On October 25, 1943, the father and defendant went to Gimbel Brothers Bank, removed the bonds from the former's box, and took them to the Federal Reserve Bank, where, after the execution of an application for reissue of the bonds made payable to "Samuel Lockman or Harvey Lockman", they were left for that purpose. At the same time, the father and defendant, in the presence of each other, signed a joint tenancy agreement so that both would have control and access to the safety deposit box, which up to that time had been in the father's name alone. In doing so, defendant, for some obscure purpose, used the fictitious name of "Harry Bernstein." On the afternoon of that same day, the father was taken by defendant to Mt. Sinai Hospital, Philadelphia, where he remained as a patient until his discharge on October 30, 1943, when he returned to defendant's home. New bonds were issued to "Samuel Lockman or Harvey Lockman", and mailed in two separate envelopes on October 27 and 28, 1943, to the father at the residence of defendant. The bonds were received by defendant while his father was still in the hospital, and he has retained them ever since.
On October 30, 1943, when the father was released from Mt. Sinai Hospital, that institution turned over to defendant, at the direction of the father, the cash sum of $3,000, which the latter had deposited there. This fund was entrusted to defendant, who admittedly was acting as the financial agent for the father, for the sole purpose of defraying certain medical, hospital, traveling, hotel and other expenses of the father. Out of this money, defendant paid $1,464.10, leaving a balance unaccounted for by him of $1,535.90.
Samuel Lockman died, intestate, on February 27, 1944, leaving to survive him four daughters, one of whom is plaintiff-administratrix, and two sons, one of whom is defendant. The bonds and $3,000 represented practically all of the father's assets. The day following the funeral, while the family was sitting in mourning, defendant admitted to his brother and sisters that the father, prior to his death, had given him certain instructions regarding the disposition and distribution of the bonds and cash. From these instructions, it clearly appears that the bonds and cash were to be distributed, rather than to be retained by defendant as his own property.
It is the contention of defendant that it was error to have permitted his brother and sisters to testify as to matters occurring during the father's lifetime; that plaintiff did not meet the burden of proving the fraud alleged; and that there was insufficient evidence that he received $3,000 in cash from his father, for which he was under a duty to account.
Over objection of counsel for defendant, the Chancellor permitted defendant's brother and sisters to testify to a conversation that occurred between the father and his daughter, plaintiff, on or about November 9, 1943, at the 30th Street Station of the Pennsylvania Railroad, in Philadelphia, then the father was being taken by defendant to a hospital in Boston. This testimony was to the effect that on that occasion, when the father and all his children, including defendant, were present, the father told plaintiff that defendant had informed him that government bonds were invalid unless they had two names on them, and that the father then also criticized plaintiff for not having so informed him when she had purchased some of the bonds for him. It was also stated by these witnesses that defendant broke up that conversation by saying: "Let's skip it; let's not even talk about it; he [the father] doesn't know what he's talking about; he don't know what you're talking about." Plaintiff argues that such testimony was admissible because the cross-examination of defendant had disclosed admissions and declarations by him which struck down the prima facie inter vivos gift claimed by defendant, and, therefore, the relative positions of plaintiff as Administratrix and defendant with regard to the father's interests were reversed. Defendant, however, contends that the bonds passed to him as an inter vivos gift, with right of survivorship, by the father's own act in having them placed in both names, and for that reason it was error to permit these witnesses to testify.
We are of one mind in believing that this testimony was inadmissible under the Act of May 23, 1887, P. L. 158, section 5, clause (e), which provides: "Nor, where any party to a thing or contract in action is dead... shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased..., be a competent witness to any matter occurring before the death of said party..." In King v. Lemmer , 315 Pa. 254, 173 A. 176, where the situation was somewhat similar to the present one, it was said, in holding such testimony to be...
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