Secary's Estate, In re

• Decision Date: 17 April 1962
• Citation: 180 A.2d 572,407 Pa. 162
• Parties: In re ESTATE of Arthur SECARY, Late of Conemaugh Township, Somerset County, Pennsylvania, Deceased. Appeal of Lewis D. SECARY.
• Court: Pennsylvania Supreme Court

Page 572

180 A.2d 572

407 Pa. 162

In re ESTATE of Arthur SECARY, Late of Conemaugh Township Somerset County, Pennsylvania, Deceased Appeal of Lewis D. SECARY.

Supreme Court of Pennsylvania.

April 17, 1962.

Rehearing Denied May 16, 1962.

Nathaniel A. Barbera, Shaver & Barbera, Somerset, for appellant.

Frank A. Orban, Jr., Somerset, Wayne G. Wolfe, Spencer, Custer, Saylor & Wolfe, Johnstown, for appellee.

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

BELL, Chief Justice.

The question involved is narrow. Was decedent's brother entitled to the contents of a safe deposit box under the written lease thereof?

Arthur Secary died intestate on December 23, 1958, at the age of 49. He was survived, inter alia, by his widow, Kay G. Secary, and his mother, Mabel Sicheri, also known as Mabel Secary, as his sole heirs at law, and a brother, Lewis D. Secary, who is the present appellant.

On December 31, 1958, letters of administration were issued to his widow, Kay G. Secary. Included in the inventory and appraisement were certain contents of safe deposit box number 541B in the Moxham National Bank of Johnstown. These consisted of $109,240 in cash, an agreement of lease dated October 1, 1945, between Bird Coal Company and decedent and an extension of this lease, and 24 shares of stock of the American Telephone & Telegraph Company dated May 12, 1958, in the name of Arthur Secary. The box also contained 12 Certificates of Indebtedness of North Fork Country Club in the amount of $25. each, and 7 U. S. War Savings Bonds totaling $375 in face value which were in the names of Arthur Secary or Mary Secary; ¹ these were not listed in the inventory.

The inventory and appraisement also included (a) a checking account in the Moxham National Bank of Johnstown in the name of Kelso Coal Company in the amount of $12,745, and (b) cash contained in envelopes and located in decedent's home in the amount of $8,905.

Appellant, Lewis D. Secary, filed several objections to the inventory and appraisement, but only two are pressed on this appeal, namely, the ownership of the contents of the safe deposit box and the North Fork Country Club certificates, all of which the Orphans' Court held belonged to Arthur Secary's estate.

We start with the well settled principle that claims against a dead man's estate, including a claim of a gift inter vivos, can be established only by evidence which is clear, direct, precise and convincing. Petro v. Secary Estate, 403 Pa. 540, 543, 170 A.2d 325.

Appellant contends that he has met the burden of proof by presentation in evidence of the lease of safe deposit box number 541B which was executed by both Appellant and decedent. Appellant contends that this lease created a valid inter vivos gift of a joint interest with right of survivorship in all the contents of the box, and that the gift thus created was corroborated by oral testimony.

The lease pertinently provides:

'Lessor and lessees covenant and agree to and with each other that said box and said space is leased subject to the following terms, conditions, agreement, rules and regulations: * * *.

'J. C. In case the Lessees are joint tenants, ² including husband and wife, it is hereby declared that all property of every kind at any time heretofore or hereafter placed in said box is the joint property of both Lessees and, upon the death of either, passes to the survivor subject to inheritant tax laws. Each of the Lessees shall have full access to and the control of the contents of said box without further authority. The Lessor shall not be liable, in the event that property belonging to the joint tenants having access to said box be misappropriated by one or more of those having access. Each or all of the Lessees may appoint a deputy to have access to or surrender the box. * * *

'Lessees hereby acknowledge the receipt of two keys to said box and space'.

Appellant bases his claim on King Estate, 387 Pa. 119, 126 A.2d 463. In that case the lease was identically the same as the lease in the instant case, but the Court held that in the light of the oral evidence the contents of the box belonged to the surviving tenant.

The law on the subject of joint accounts was in a state of confusion due (a) to the fact that the alleged gifts were often evidenced or created by differently worded signature cards or other written instruments or by oral evidence; (b) the fact that in many instances the written instruments (which were executed had been prepared by a bank to cover nearly every conceivable transaction) contained such broad or general language as to be equivocal or ambiguous; (c) the failure to distinguish between an ordinary gift and the gift of a joint interest; (d) practical considerations, especially with respect to the delivery of the contents of a singly or jointly owned safe deposit box; and (e) the uncertainty as to whether the transaction constituted a gift causa mortis, an inter vivos gift, or a contract.

In an attempt to clear up the confusion ³ we stated and established the principles of law which are applicable in an alleged gift of a jointly owned safe deposit box or the contents thereof (pages 122-124, 126 A.2d page 465-466):

'To constitute a valid gift inter vivos of the contents of a safe deposit box, two essential elements are requisite: An intention to make an immediate gift, and such an actual or constructive delivery to the donee (a) as to divest the donor of all dominion and control, or (b) if a joint tenancy is created, as to invest in the donee so much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein. The burden of proof is upon the claimant...