Mader v. Stemler

• Decision Date: 29 June 1935
• Docket Number: 9,10
• Citation: 319 Pa. 374,179 A. 719
• Parties: Mader et al. v. Stemler et al., Appellants
• Court: Pennsylvania Supreme Court

179 A. 719

Mader et al. v. Stemler et al., Appellants

319 Pa. 374

Nos. 9, 10

Supreme Court of Pennsylvania

June 29, 1935

Argued May 28, 1935

Appeals, Nos. 9 and 10, May T., 1935, by defendants, from decrees of C.P. Dauphin Co., 1933, Nos. 1071 and 1072, in cases of Mary A. Mader et al. v. Jean L. Stemler and Mary A Mader et al. v. Hettye Stemler. Decree in No. 9, reversed and decree in No. 10, affirmed.

Bill in equity. Before Fox, J.

The opinion of the Supreme Court states the facts.

Decree in each case entered in favor of plaintiffs and against defendant. Defendant in each case appealed.

Error assigned, among others, was dismissal of exceptions to decree nisi.

No. 9. Decree reversed, costs to be paid by appellees.

No. 10. Decree affirmed, costs to be paid out of the fund on deposit in Central Trust Company.

Donald K. Royal, with him John A. F. Hall, for appellants.

David M. Wallace, with him Robert T. Fox, of Caldwell, Fox &amp Stoner, for appellees.

Before SIMPSON, KEPHART, schaffer, drew/ and LINN, JJ.

OPINION

MR. JUSTICE LINN:

These cases (appeal No. 9 by Jean L. Stemler, and No. 10 by Hettye Stemler) were tried together in the court below and were argued together here.

Frank Stemler died April 19, 1932. His will was proved and letters were issued to John F. Dapp, executor. By the will, dated March 24, 1925, testator gave all his property to his wife for life, with power to consume, with remainder to their children and the issue of deceased children per stirpes. His wife predeceased him. Eight children survived. At the time of his death his immediate household consisted of himself and his two daughters, the appellants, who kept house for him -- one of them employed in a department store and the other as a public school teacher -- and his eldest son, John, one of the plaintiffs, who was out of work. Excluding the two joint bank accounts involved in these appeals, he left real and personal estate amounting to about $8,000; his debts were a few personal bills for current expenses.

In the Camp Curtin Trust Company there was a savings account of $5,639 which is the subject of appeal No. 9. On December 7, 1926, when the credit was $861, the account was changed from Frank Stemler to "Frank Stemler or Jean Stemler" on the books of the company. Stamped on the signature card and signed by both depositors was the following: "The sums deposited in this account belong to Frank Stemler and Jean Stemler jointly, it being understood each may withdraw upon his or her or their individual order during joint lives, and we hereby direct and authorize the Camp Curtin Trust Company, Harrisburg, Pa., to pay any balance remaining upon the death of either of us to the survivor." All the deposits were made by the decedent. After Stemler's death, the account was withdrawn by Jean Stemler. Decedent, when he died, also had a checking account in his own name in this bank, with a credit of $129.31.

In the Central Trust Company there was a savings account of $4,611, which is the subject of appeal No. 10. On June 4, 1927, when this account was $1,551, it was changed from F. H. Stemler to "F. H. or Hettye Stemler" on the ledger sheet and was apparently so entered on a later passbook. There was no signature card (or other written agreement) bearing Hettye Stemler's signature and the deposit still remains. All deposits were apparently made by decedent.

Decedent's other six children claim the right to share in the two deposits with appellants. Accordingly, they filed two bills in equity based on the same legal theory, and containing substantially the same allegations. The form of procedure was not challenged. With themselves as plaintiffs, they joined the executor, and, in No. 10, the Central Trust Company. The bills charged that decedent created the savings accounts, in each case, "for the purpose of having his said daughter, the defendant, upon his death distribute the same share and share alike among all his children," and prayed for a decree "that the said . . . [daughter] . . . is a Trustee of the said fund for the use and benefit of all the children of the said Frank Stemler, share and share alike," and that she be ordered to "account to all the children of the said Frank Stemler for the said fund." The learned court below concluded that "a gift inter vivos in either case has not been established," and held that the accounts were the property of the decedent at the time of his death. A decree was entered requiring the defendant, Jean Stemler, to pay to the executor the amount withdrawn by her with interest, and, in the other case, that the trust company pay the account to the executor.

No. 10 appeal of Hettye Stemler. There is no finding, and no evidence to support one, that decedent and appellant ever signed a contract like that appearing in No. 9. All we have is that the account, on the books of the trust company, was in the name of F. H. or Hettye Stemler. The testimony, even considering what was received subject to objection and subsequently rejected as incompetent under the Evidence Act, May 23, 1887, P.L. 158, section 5, is insufficient to support a finding that Stemler assigned an interest in the account with the right of survivorship. Cf. Strause's Est., 75 Pa.Super. 276; Bailey's Est., 86 Pa.Super. 322. There is no evidence that would support a gift executed "by assignment or by other writing which . . . would indicate a present intention to pass right of possession to the donee" (Mardis v. Steen, 293 Pa. 13, 15, 141 A. 629), manual delivery being impracticable. The conclusion reached below in the suit against Hettye Stemler is supported by Flanagan v. Nash, 185 Pa. 41, 39 A. 818; ...