167 A. 476 | Pa. Super. Ct. | 1933
Argued April 10, 1933. Elizabeth Gallagher, also known as Eliza Gallagher, died intestate on August 15, 1931, and Daniel J. Gallagher, her son, was appointed administrator of her estate. On August 21, 1931, Daniel J. Gallagher presented a petition to the orphans' court of Erie County setting forth the facts that he had qualified as administrator of the estate of Elizabeth Gallagher; that there was a savings account in the Bank of Erie Trust Company in the name of Eliza Gallagher and Martha Weiss; that the account was the property and money of the decedent; and that Martha Weiss had no interest therein, and praying that an order be made upon the bank to turn over the bank account to the petitioner. A rule to show cause was granted on said petition, but there is nothing on the record to show that any citation or rule was served upon either Martha Weiss or the Bank of Erie Trust Company. The court proceeded to hear evidence after the return day of the rule. While no answer was filed by Mrs. Weiss or formal appearance entered, we conclude from the record that she appeared, was represented by counsel, and contested the petition. As we have indicated, there was not any proof of service of a citation or rule upon the bank. It did not file an answer nor is there anything disclosed by the record showing that it submitted itself to the jurisdiction of the court. The court, after hearing, discharged the rule, holding in effect that under the evidence produced, the account in the bank was a valid gift inter vivos to and the property of Mrs. Martha Weiss. *307 From this order an appeal was taken by Daniel J. Gallagher, an heir of decedent, interested in the estate.
The orphans' court had jurisdiction of the subject matter, at least to the extent necessary to determine in limine whether a substantial dispute existed as to the ownership of the bank account, and if there was not such substantial dispute, had power to direct the bank to turn over such account to the administrator. "We need not stop to inquire into the distinction [here] made between property in possession of an executor and property for which the executor is accountable. The latter is the more general term and together they embrace all that was owned by the testator at the time of his death. In either case ownership by the testator at the time of his death is antecedently implied, and where such ownership can be affirmed with respect to any property, the executor is charged with accountability therefor, whether in or out of his possession, and the jurisdiction of the proper orphans' court over both is complete. . . . . . If at testator's death the property is shown to have been in his possession, or if for any other reason it was presumptively his, a mere denial of his ownership unsupported will not oust the court of its jurisdiction, but the court may proceed with the investigation so far as to inform itself whether the denial is made in good faith and a substantial dispute exists": Cutler's Estate,
If the proofs "show that the denial of the plaintiff's right is not based upon facts which in law show a substantial dispute, so that if the case were before a jury binding instructions against the defendant would be justified, then the court may administer the relief asked, and it is not necessary that the right of the plaintiff should be first settled at law, or that an *308
issue should be granted to determine the question of the title set up by the defendant:" Weller's Estate,
The lower court, apparently assuming that the bank was a mere stakeholder, disposed of the rule on the theory that the contest was between the estate and Mrs. Weiss, and held that the proofs showed a valid gift inter vivos to her, relying on the case of Reap v. Wyoming V.T. Co.,
There was not any substantial dispute disclosed. We will disregard the testimony of Mrs. Weiss as to the transfer of the account to her in the lifetime of her mother as she was incompetent to testify: Estate of Blaszcak,
Did these facts show a valid gift inter vivos to Mrs. Weiss? In the case of Flanagan v. Nash,
These cases were followed by Mardis v. Steen, *311
While there is no doubt about the right of the orphans' court to require the delivery to its representatives, to wit, an administrator or executor, of property of a decedent where there is no substantial dispute as to the title, such third party is entitled to a day in court. No process of any kind was issued requiring the bank to make answer; neither has it voluntarily appeared in the proceeding. A citation should have issued when the petition was presented, requiring the bank either to deliver the money on deposit to the administrator or show cause why this should not be done. It is the bank, and not Mrs. Weiss, that has control of the fund. After the death of Mrs. Gallagher, $100 was withdrawn from the account by some one. We have no right to assume, in the absence of an opportunity to the bank to answer, that such withdrawal was not lawfully made under some existing right. It is, therefore, necessary to send the record back to the court below in order that it may issue a citation to the Bank of Erie Trust Company, requiring it to pay over the fund to the administrator or show cause why it should not do so. If the bank *313 replies that it is a mere stakeholder, the court will then be in a position to enforce an appropriate decree. If the bank questions the right of the administrator to receive the fund by reason of some matters not yet appearing, that court has full power to take evidence and determine whether a substantial dispute exists.
The order of the lower court is reversed, and the record is remitted to the court below to the end that further proceedings may be had not inconsistent with this opinion.