188 Pa. Super. 518 | Pa. Super. Ct. | 1959
Opinion by
This appeal involves the disposition of a joint savings account where one of the parties to the account died. Essentially, it is a contest between the survivor and the estate of the deceased.
On January 31, 1953, Julia Gergey deposited $1,--000.00 in the Central City National Bank in a savings account in the name of herself and her daughter, Bertha Nemcek, also known as Bertha Nemchik, with incidents of survivorship. At the time the account was opened, no pass book was issued because the bank did not have any on hand. A deposit slip was prepared in duplicate, however, and a duplicate was given to Julia Gergey at that time. The signature card was signed by Mrs. Gergey at the time of the deposit and was turned over to her to obtain the signature of her daughter. This was done sometime later, and the signature card was returned to the bank.
The signature card contained the usual printed contract of a joint account with the right of survivorship. However, in making up the account, the teller, for some unknown reason, captioned the account “Julia Gergey, P. O. D. Bertha Nemchik.” Both the signature card and the duplicate deposit slip were turned over by Mrs. Gergey to her daughter, Bertha Nemcek, who signed
On February 15, 1953, about two weeks after the said joint account was opened, Julia Gergey made her will in which she divided her property into five shares, leaving one share to her daughter, Bertha Nemcek. No mention was made in said Will of the joint account previously created.
After the death of her mother, Bertha Nemcek gave formal written notice for the withdrawal of said account as survivor. Subsequent to the notice, however, the bank received a letter from the estate of Julia Gergey, wherein the funds were also claimed by the estate. Based upon this letter, the bank refused to honor the request of the surviving joint tenant, and in November, 1953, a complaint in assumpsit Avas filed against the bank. The bank interpleaded the estate, disclaimed any right in the fund and paid the same into the office of the prothonotary. Thereafter, Joseph Gergely, individually and as executor for the estate, filed a complaint, alleging that no gift was made and that under the contract with the bank, the money Avas payable to the estate since the Avill of the decedent revoked all prior testamentary dispositions.
The case was heard by the court beloAV without a jury and, after concluding the testimony, rendered judgment in favor of the appellee, Bertha Nemcek. From this adjudication, this appeal followed.
In the recent case of Martella Estate, 390 Pa. 255, 135 A. 2d 372, our Supreme Court said: “ ‘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.’ ” In this case, the testimony is
We therefore conclude that the account here involved was not a testamentary disposition but a valid inter vivos gift, and that the will executed approximately two weeks later did not revoke the gift.
Judgment affirmed.