Opinion by
Both parties to a contest in the Orphans’ Court have appealed from its final Decree which dismissed their respective exceptions to an adjudication. The Orphans’ Court decreed (1) that ten entireties accounts should be divided equally between decedent’s wife and decedent’s executor, and (2) that decedent’s wife was entitled solely and absolutely to an alleged tentative trust savings account.
From the facts, most of which were stipulated and others appear in the record, we make the following summary.
Nicholas Brose, * a physician, died testate July 10, 1963, in Allegheny County. On June 27, 1944, he had married a nurse an anaesthetist named Irma E. Brose. ** During their married life together and until May 7, 1963, both continued to practice their respective professions. Money derived from their joint earnings was deposited in ten savings accounts and in one checking account in eight different banks and in one savings and loan association.
*389 “Entireties” Accounts
The parties stipulated that 10 of the aforesaid 11 accounts were “entireties” accounts and totaled $131, 621.10. * More accurately, each account was evidenced by an executed contract of deposit. Some of the contracts are well drawn and are entitled “Nicholas or Irma,” or “Nicholas and Irma,” thus clearly creating a tenancy by the entireties. On the other hand, some of the contracts are inartistically drawn and do not accurately reflect the husband-wife relationship. Some of these list the names of “Nicholas” and “Irma” but do not connect them either with a conjunction or a disjunction ; others denominate the relationship as a “joint tenancy”; and yet another merely says, “Payable to either or to the survivor.”
Moreover, most of the contracts recite, “All deposits made therein shall be owned by us as tenants by the entireties with the right of survivorship. . . .” Several others were opened as “A joint account of husband and wife,” and were made “payable to either of us or the survivor.”
Despite these actual and technical differences, each of the bank accounts and each of the ten contracts above mentioned clearly created (as we shall see) a tenancy by the entireties.
What followed the opening of the aforesaid accounts was very unusual. On May 7, 1963, Irma left the common domicile (concealing her whereabouts from Nicholas) and withdrew $33,000 from their $38,-387.05 checking account at the Mellon National Bank and Trust Company. This was withdrawn without Nicholas’s knowledge or consent. When Nicholas discovered this, he withdrew, without Irma’s knowledge *390 or consent, the entire balance in three other accounts, and almost all of the balance of the checking account in the Mellon Bank. Irma then withdrew 75 percent of one “entireties” account, all of two more “entire-ties” accounts, as well as the entire balance of another, account held by “Irma in trust for Nicholas.”
Each withdrawal was appropriated to the with-drawer’s exclusive use; after Irma’s first withdrawal, each was made with the knowledge by the other spouse of preceding withdrawals but without the consent of the other spouse. Subsequent to Nicholas’s death, * Irma withdrew all of the remaining balances in the entireties accounts, except the balance in a savings account in the Mellon Bank which had been claimed by the executor and was therefore withheld by that bank ** pending. Judicial determination.
A deposit in a banking account or in a checking account or in a.savings account,
***
which is opened or registered in the name of a husband and wife, or of a husband or wife, or of two persons who are husband and wife although not so denominated, creates a tenancy by the entireties, irrespective of whether the money deposited is payable to husband
and
wife or to husband
or
wife, or is denominated a joint account or a joint tenancy.
Stemniski v. Stemniski,
Moreover, the law is well settled that an estate by the entireties cannot be terminated at the option of one of the co-tenants but can always be terminated or destroyed by mutual agreement:
Reifschneider v. Reifschneider,
Withdrawing by one tenant and appropriating the money or property to the with drawers own exclusive use without the consent or subsequent approval of the other tenant, terminates the tenancy at the option of the co-tenant, but not the co-tenant’s right to an accounting and to one-half thereof.
In
Berhalter v. Berhalter,
315 Pa., supra, the Court aptly said (pages 227-228) : “. . . Even though there had been no such agreement [expressly creating an estate by the entireties], a deposit of money
in the names of husband and wife, or, of husband or wife, using both names, creates an estate by
entireties:
*
Sloan’s Est.,
In
Stemniski v. Stemniski,
403 Pa., supra, the Court, quoting from
Berhalter v. Berhalter,
“Furthermore, all property of the parties held by the entireties is affected, not merely the unit that *393 has been improperly drawn upon. In Watkins there were four bank accounts, and the [lower] Court, we affirming, ordered all four divided, although funds from only two had been diverted by the defendant husband. The Court said: ‘Therefore, it would be inconsistent with the policy of the Berhalter case to require plaintiff to wait until funds also are diverted from the two hitherto unwithdrawn accounts before suing to protect her interest in them.’ ”
While the prior decisions of this Court do not establish exactly what acts or actions are necessary to evidence a mutual agreement to terminate an estate by the entireties, it is clear that the actions of Irma and Nicholas evidenced a mutual intent to terminate not only the accounts from which each withdrew and appropriated the money therein to her or his own exclusive use, but likewise
all
of the entireties accounts :
Stemniski v. Stemniski,
403 Pa., supra;
Watkins v. Watkins,
The Orphans’ Court therefore properly concluded and decreed (1) that each spouse was entitled to one-half of all the amounts on deposit in the entireties accounts on May 7, 1963; (2) that the amount on deposit in the savings account in the Mellon National Bank and Trust Company totaling $11,627.99 (against which the equivalent of a stop order had been entered) should be paid to Nicholas’s executor, and (3) that Irma must pay to Nicholas’s executor the sum of $14,-627.99, the amount by which her withdrawals exceeded her one-half share of the $131,621.10 which was on deposit in the aforesaid entireties accounts on May 7, 1963.
The “In Trust” Account
An account was opened in the Dollar Savings Bank on November 28, 1960, in the name of Irma in *394 trust for Nicholas. The facts relative to this account are meager. The auditing Judge made no findings or conclusion with reference to this account in his adjudication. However, he subsequently filed an amended decree in which, without finding or reciting any facts, he ordered and decreed that this trust account “was the sole and separate property of Irma E. Brose and she is not required to account for the funds withdrawn by her from this account nor to divide them with [Nicholas’s] executor.” Subsequently, the auditing Judge filed a supplemental opinion in which he said, “The record also indicates that there was a savings account in the Dollar Savings Bank at the date of Nicholas A. Brose’s death in the name of Irma E. Brose in trust for Nicholas A. Brose, in the amount of $11,226.98. These are funds that clearly belong to Irma E. Brose as the settlor of the said tentative trust, the beneficiary having predeceased her.” This conclusion was reached by assuming that this was a tentative trust.
If this trust account had been opened with Irma’s money — an absolutely essential requisite for a Totten tentative trust — the Orphans’ Court was correct in concluding that it was a tentative and hence a revocable trust, and upon the death of either, belonged to the survivor. However, the parties agreed that the funds contained in this trust account in the Dollar Savings Bank “were [derived] from the joint earnings of the respective parties.” The question arises: Was this evidence sufficient to create a tentative Totten trust which, under the authorities, is presumed to be a revocable trust?
Where property of any kind (with exceptions hereinafter discussed) is placed in the name of the donor or settlor
in trust for a named
beneficiary, unless a power of revocation is expressly or impliedly reserved, the
general principle
of law is well settled that such facts create a trust which is prima facie
irrevocable.
*395
Ingels Estate,
However, an exception
*
to the general principle was engrafted onto and was incorporated in the law of Pennsylvania with respect to a deposit in a savings account by one person
of Ms own money
in his own name as trustee for another.
Scanlon’s Estate,
313 Pa., supra, which adopted the New York rule laid down in
Matter of Totten,
“1. A [savings] bank deposit by one person of Ms own money, in his own name, as trustee for another, standing alone, creates merely a tentative trust, revocable at will, until the depositor dies or completes the gift in his lifetime.
“2. A tentative trust may be revoked, among other means, by (1) oral declarations of the depositor, and *396 (2) facts and circumstances resulting in inadequacy of the estate assets to satisfy the testamentary gifts, funeral and administration expenses, taxes and other charges.
“3. Restatement, Trusts, §58, cited.
“4. It was Held that the testimony of the scrivener of decedent’s will as to his conversations with the testatrix leading to the preparation of her will was admissible to show her intention that the tentative trust be revoked.
“5. It was Held that the circumstantial evidence was insufficient to establish that settlor intended to make the tentative trust irrevocable.”
However, the tentative trust doctrine has never been extended to any property other than a savings account (or savings share account in a building and loan association) where the donor with his own money opened such an account in his own name in trust for the donee: Ingels Estate, 372 Pa., supra, page 177, and the many cases therein cited; Chadrow v. Kell man, 378 Pa., supra, page 244; Vierling v. Ellwood City Fed. S. & L. Ass’n, 356 Pa., supra, page 354.
In
Ingels
Estate, 372 Pa., supra, the Court said (pp. 176-177) : “The presumption that a revocable trust is intended by such a deposit
is an exception to the general rule that trusts are irrevocable
unless ai power of revocation is expressly [or impliedly] reserved: Scott on Trusts (1939), secs. 329A, 330.2; Kraft v. Neuffer,
If such a tentative trust account was created by Irma, Nicholas’s executor would have to produce clear and convincing evidence that Irma intended to make the tentative trust irrevocable. Ingels Estate, 372 Pa., supra.
However, on the present record it would appear that Irma’s trust for Nicholas was not a tentative or revocable trust since it was created from the joint earnings of Irma and Nicholas and not with Irma’s own money. If this is correct, it could not be a tentative trust, as the Orphans’ Court erroneously assumed it to be. Since parol evidence is admissible to prove the intention of the parties with respect to this account and whether a revocable or irrevocable trust was intended to be created, it is only fair and equitable to remand the record to the Orphans’ Court for a further hearing and subsequent determination of this issue in the light of this Opinion.
Decree as modified affirmed, record remanded with directions, each party to pay own costs.
Notes
hereinafter referred to as “Nicholas.”
hereinafter referred to as “Irma.”
The figures submitted by the parties were slightly changed by the Court.
Irma had instituted divorce proceedings the day before Nicholas’s death.
After learning of Irma’s first withdrawal from the checking account, Nicholas had amended this savings account deposit' contract to read: “Two Signatures Required.”
or real estate which is recorded, or a bond or stock certificate which is registered in the name of two persons who are husband and wife.
Italics throughout, ours.
Italics in this instance are in the Stemniski Opinion.
limited first to a savings account, and subsequently also to a share in a savings and loan association.
Ingels Estate,
372 Pa., supra;
Chadrow v. Kellman,