90 Pa. Super. 589 | Pa. Super. Ct. | 1927
Argued March 8, 1927. Agnes Blaszcak died December 20, 1924. Her nephew, the appellant, received letters of administration. On April 14, 1925, he filed his petition in the Orphans' Court for a citation to appellee commanding him to pay to appellant as administrator $2,665.01, alleged to belong to the estate of his intestate, or to show cause why it should not be paid. To the rule granted on that petition, appellee answered, in substance alleging that on July 31, 1922, decedent delivered to him her two savings bank pass books showing a balance of $2,400.63, together with her order on the banks authorizing him to collect the amounts, and also that she then instructed him orally to distribute the fund after her death as stated in the answer. A part of it, he averred, was "to be disposed of by [himself] as trustee at his discretion." He alleged that he had so received the money and asked that the petition be dismissed. Testimony was taken and the rule was discharged on the merits. That action is challenged by this appeal.
We have first a question of jurisdiction. It will be observed that the petition and the answer agree that the money in question had been out of Agnes Blaszcak's *591
possession, and apparently out of her control, nearly a year and a half prior to her death and that, while appellee states that he holds part of it for others, he asserts that part was a gift to him. The administrator has never had possession or control of the fund. Its ownership is disputed. In Williams' Estate,
Subsequent decisions are referred to in Connell's Estate,
In Cutler's Estate the property that was the subject of litigation was claimed by appellant; it had not been in the possession of decedent at his death, and it was contended by the decedent's estate that as the property was claimed by appellant as a gift from the decedent evidenced by instruments of title admitted to have been executed by decedent in his lifetime but when he was not of sufficient understanding to make a gift, the Orphans' Court had power to determine whether a valid gift had been made. That contention was rejected and it was held that when it appeared in the proceeding that a substantial dispute concerning the ownership of the property existed, the duty of the court was to direct an issue pursuant to the Act of March 29, 1832, P.L. 190 (now sec. 21 of the Orphans' Court Act of 1917, P.L. 363, 382); compare Cooper's Estate,
In view of the disposition to be made of this appeal, a brief statement of the evidence will be sufficient, and in stating it, we disregard the findings made by the learned court below on the evidence of appellee (Kaufmann's Estate,
The evidence so far stated was offered on behalf of appellant. In making his findings the learned trial judge considered also the evidence of appellee who took the stand in his own behalf. After giving some testimony, he stated that on July 17, 1923, decedent made some changes in the oral instructions she had given him on July 31, 1922, concerning the distribution of the money to be made by him after her death, and that he then called her attention to the fact that there was an undisposed of balance of about $600, and that she replied, "You [appellee] make use of this money according to the best of your judgment." His counsel then offered in evidence appellee's memorandum made at the time, of her desired disposition of the fund and was met by appellant's objection to the competency of appellee to testify and by his motion that appellee's evidence of his transactions with decedent prior to *595
her death be stricken out on the ground of his incompetency (sec. 5 (e) Act of May 23, 1887, P.L. 158). The evidence was admitted, the motion was refused, appellant excepted and assigns the ruling for error. The assignment must be sustained. Both in his answer to the petition and in his evidence quoted, appellee claims part of the fund as a gift to him personally, while part is claimed as a gift for the use of others. He is a party to the alleged gift — the thing in action — and claims adversely to the administrator; the deceased donor's right in the subject matter has passed on the record to her administrator; the appellee is directly within the act: Lavelle v. Melley,
It is thus apparent that the record discloses a substantial dispute about the ownership of the fund in the possession of the appellee, claimed on one side by him and on the other by the decedent's estate. In accordance with the authorities referred to, that ownership should be determined by an issue to be tried in the Common Pleas. It is therefore premature now to discuss the alleged transaction, though attention may be called to the illuminating statement of rules governing the consideration of gifts and the burden of proof, contained in Kaufmann's Estate,
The decree appealed from is reversed, and the record is remitted for further proceedings consistent with this opinion; costs to abide the event. *596