Sivak's Estate, In re
| Decision Date | 26 November 1962 |
| Citation | 185 A.2d 778,409 Pa. 261 |
| Parties | In the Matter of the ESTATE of Mike SIVAK (or) Sewak, Deceased, Late of the Borough of Franklin, County of Cambria and State of Pennsylvania. Appeal of Chester SEWALK, otherwise Chester Sewak. |
| Court | Pennsylvania Supreme Court |
Samuel R. DiFrancesco, DiFrancesco & DiFrancesco, Johnstown, for appellant.
Reginald L. Pawlowski, Johnstown, for appellee.
Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and KEIM, JJ.
Mike Sewalk 1 died April 28, 1961, leaving a will dated February 18, 1960, in which he gave all of his estate to his six named children. 2 Not including his Optional Savings Share Account in the Slovenian Savings and Loan Association, which amounted to $3,598.00, Mike Sewak's estate consisted solely of real estate valued at $8,100.00.
Claimant, Chester Sewalk, one of testator's sons, appeals from a decree of the Orphans' Court which awarded the aforesaid 'Optional Savings Share Account' to the executor of Mike Sewalk. The Orphans' Court held that claimant had failed to prove a gift inter vivos or a gift mortis causa to him.
This savings share account was taken out by the decedent on September 19, 1956. The pass book reads as follows:
'(Back of front cover, the following:) SLOVENIAN SAVINGS AND LOAN ASSOCIATION, CONEMAUGH, PA.
This certifies that Mike Sewalk or . . . is a member of Slovenian Savings and Loan Association and holds an Optional Savings Share Account of said Association, subject to its Charter and By-Laws and to the laws of the State of Pennsylvania.
WITNESS the authorized signature of officer or employee this 19th day of Sept. 1956.
..........
Authorized Signature'.
A signature card was signed by Mike Sewalk when he made the original deposit on September 19, 1956. The signature card contained on the back a printed statement that he opened a joint deposit account and the usual language with respect to 'a joint account with right of survivorship.' This language was unquestionably inappropriate for and undoubtedly inapplicable to the aforesaid account which Mike Sewalk opened.
Thereafter (on an unascertained date) in October, 1959, Mike Sewalk went to the bank and saw Anton Gabrenya, the president of the bank, and told him to add on the account the name of Chester Sewalk, the claimant. An employee of the bank thereafter entered the name of Chester Sewalk to the pass book so that it read 'Mike Sewalk or Chester Sewalk', the address remaining still that of Mike Sewalk. An employee of the bank likewise stamped on the pass book in the upper right hand corner of the back of the front cover
Chester Sewalk never signed his name to the pass book, signature card, or to any paper; and Mike Sewalk on this occasion did not sign his name to the pass book or to any signature card, or to any paper.
Mike Sewalk informed Chester that the latter's name had been added to his share account in the Association.
Thereafter Chester Sewalk had possession of the pass book at various intervals of time, but Mike Sewalk, his father, before and thereafter made some deposits and withdrawals--the last withdrawal was on February 14, 1961, when he withdrew $150.00--and on these occasions Mike Sewalk either possessed or took the pass book from Chester. Chester never made any deposits or withdrawals and never claimed in his father's lifetime any interest in this account.
Notwithstanding the fact that Chester Sewalk never signed his name to the pass book or signature card, he contends (1) that the rules or principles applicable to cases where the signature card was signed by both the owner of the deposit or the checking or the share account and the alleged donee, are likewise applicable in this case, and (2) that as a result of the aforesaid facts, Chester's father made an inter vivos gift of the share account to him, or in the alternative a gift mortis causa.
In our recent decisions we have spelled out the requisite elements of a gift inter vivos. In Cox's Estate, 405 Pa. 444, 448, 176 A.2d 894, 895, the Court said:
'* * * In Amour's Estate, 397 Pa. 262, 154 A.2d 502, the Court reiterated the law laid down in Martella's Estate, 390 Pa. 255, 258-259, 135 A.2d 372, and repeated in King's Estate, 387 Pa. 119, 122, 126 A.2d 463, and said ([397 Pa.] page 265, 154 A.2d page 504): "'* * * 'To constitute a valid gift inter vivos * * *, 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.'"" Accord: Secary's Estate, 407 Pa. 162, 180 A.2d 572; Balfour's Estate v. Seitz, 392 Pa. 300, 140 A.2d 441.
If this signature card with its phraseology, i. e., joint tenancy with right of survivorship--which as an individual depositor Mike Sewalk signed in 1956--had been signed by both Mike Sewalk and his son Chester in 1956 or in October, 1959, it would have established prima facie a valid inter vivos gift. In Berdar's Estate, 404 Pa. 93, page 95, 170 A.2d 861, page 862, the Court said:
The claimant has the burden of proving a valid inter vivos gift or in the alternative a valid gift mortis causa, and this proof can be established only by evidence which is clear, direct, precise and convincing: Secary's Estate, 407 Pa. 162, 167, 180 A.2d 572; Petro v. Secary, 403 Pa. 540, 170 A.2d 325. Cf. also Kadilak's Will, 405 Pa. 238, 243, 174 A.2d 870.
Claimant completely and utterly failed to prove a valid gift inter vivos.
The next question is whether claimant...
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