Zabek Estate
Zabek Estate
Opinion of the Court
Opinion by
. John Zabek died, testate on September 14, 1965, leaving, an estate of approximately $22,000.
On May 24, 1968, Michael and Frank Zombek in .their fiduciary capacity filed a petition in the Orphans’ Oourt which alleged that a part of the funds of the testator, John Zabek, which the deceased executor, Walter Zambek, held in his fiduciary capacity for the benefit of all the testator’s beneficiaries, was distributed without administration to some of the beneficiaries under their father’s aforesaid will. The administrators asked that a citation be issued directing these distributees to account for the funds in question. On November 29, 1968, the Orphans’ Oourt issued the requested citation;
The testimony presented at the hearing showed that on July 12, 1962—two days before he executed his will and over three years before his death—the testator,
“Zabek, John or Walter Zambek
It is agreed and understood that any and all sums that may from time to time stand on this account, to the credit of the undersigned depositors, shall be taken and deemed to belong to them as joint tenant's
The testimony showed that the testator requested joint accounts and that before the bank signature cards were signed, William MNDivitt, Jr., President of the Trust Company, clearly explained to the testator and his son, Walter, that upon the death of either of them the money remaining in each account would be the sole property of the survivor
The Orphans’ Court permitted the petitioners to introduce, over appellants’ objection, parol evidence to prove that their father, the decedent, lacked the dona
The Orphans’ Court held (1) that the money remaining in these bank accounts was part of the testator’s estate and (2) that Mary Zambek, Walter’s wife, and Harry Zambek, one of Walter’s children, were in possession of the above-mentioned funds. Accordingly, the Orphans’ Court ordered Mary Zambek and Harry Zambek to deliver this money to the administrators of the estate of the testator, John Zabek. The Court en banc affirmed, one Judge dissenting.
Appellants contend in this appeal that the Orphans’ Court erred because (1) it did not consider the opening of the aforesaid accounts with the accompanying signature cards prima facie evidence of a gift inter vivos; (2) it did not hold that the parol evidence rule was applicable to the present factual situation and barred the present claim; (3) it did not hold that the testimony of Stanley and Frank Zombek was inadmissible because it violated the “Head Man’s” Act, Act of May 23, 1887, P. L. 158, 28 P.S. 322; and (4) in the alternative, that even if the aforesaid oral testimony of the petitioners (appellees) as to the oral agreement was admissible, it was insufficient to overcome the prima facie evidence of a gift inter vivos to the joint tenant.
This Court, in a score of cases, has recently reviewed and reiterated the principles applicable to inter vivos gifts, particularly where the subject matter of the gift is a jointly-owned bank account. See, inter alia, Slavinski Estate, 420 Pa. 504, 218 A. 2d 125; Brozenic
In Brozenic Estate, 416 Pa., supra, this Court said (pages 206-207): “In Bunn Estate, 413 Pa., supra, the Court quoting from numerous recent decisions, said (pages 469-470) : ‘ “. . . ‘. . . “ ‘ “. . . ‘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 Estate, 407 Pa. 162, 180 A. 2d 572; Balfour v. Seitz, 392 Pa. 300, 140 A. 2d 441.
« . . In Berdar Estate, 404 Pa. 93, 170 A. 2d 861, the Court said (page 95) : ‘. . . When a depositor creates a joint savings account with right of survivorship,
: V. . Although the decision in this class of case often depends upon the exact wording of the deposit account and the signature card and the agreement, if any, accompanying it, the law and the proof required in such cases are well'settled: Sivak Estate, 409 Pa. 261, 185 A. 2d 778; Cox Estate, 405 Pa. 444, 176 A. 2d 894____’”
• We are in- agreement with appellants’ first contention, namely, that the bank signature cards executed by both joint tenants established a prima facie gift to Walter Zambek.
Appellants’ second contention is that parol evidence, -lie., Walter’s subsequent statements, was not admissible to contradict the prima facie gift because óf the .parol evidence rule.
In Dunn v. Orloff, 420 Pa. 492, 218 A. 2d 314, this Colirt said (pages 495-496) : “In 1924, the present state
“In Gianni, however, the court provided for an exception by saying: 'The writing must be the entire contract between the parties if parol evidence is to be excluded and to determine whether it is or not the writing will.be looked at and if it appears to be a contract complete within itself. “. . . it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.”’ (281 Pa. at 323). Prom this language has developed an exception to the Rule, i.e., that parol evidence is admissible to explain and supplement a written agreement where such evidence clearly
An examination of the bank signature cards, especially when supplemented by the testimony of the Bank President as to their meaning and effect, discloses that at the time of opening of these accounts the depositors were expressly informed that any money deposited in the accounts by either of them was to be owned by them jointly and that “in the case of the death of either one of them, the sum on deposit belongs to the survivor.”
The signature card in this case is almost identical with the card in Amour Estate, 397 Pa., supra. The bank signature card in Amour Estate provided: “It is understood and agreed that any and all sums that may from time to time stand in this account, to the credit
Furthermore, two other decisions of this Court assist us in arriving at the conclusion that the signature cards in question represented the complete agreement of the parties. The bank signature card in Slavinski Estate, 420 Pa., supra, provided: “It is agreed and understood that any and all sums that may from, time to time stand on this account, to the credit of the undersigned depositors, shall be taken and deemed to belong to them as joint tenants and not as tenants in common . . . This bank is hereby authorized and directed to deal with the survivor as sole and absolute owner thereof.” In Slavinski Estate, this Court held that the signature card in question was not as clear in revealing donative intent as that in Amour Estate, 397 Pa., supra, because of the ambiguity arising from the crossed-out markings in front of one of the signers’ names. Therefore, the language of the signature card in that case was not per se ambiguous but was made uncertain or ambiguous by the crossed-out markings. The Opinion of the Court clearly implies that if it were not for these additional markings, the Court would have concluded that the bank signature card represented the complete agreement of the parties, and the parol evidence rule would have been applicable.
We . hold that as to the question of . the applicability of the parol evidence rule,, the factual situation,herein prestented is ruled expressly by Amour Estate, 397 Pa., supra, and impliedly by Slavinski Estate, 420. Pa., supra, and by Fenstermaker Estate, 413 Pa., supra, and .that the-language of the bank signature cards .clearly discloses the donor’s {John Zabek’s) donative intent. '
: The following evidence was offered by the petitioners-(the appellees) and acctepted by the Orphans’ Court to show, that Walter Zambek (executor and.a-joint tenant) had admitted, after the deposit, that the bank signature-cards did. not express the entire or even the real agreement between himself and- his father. ' Stanley
The above-mentioned testimony was the only' evidence of an admission by Walter Zambek (joint tenant) that the bank signature cards did not reflect the entirg agreement between himself and his father. There was no testimony of any such statements by John Zabek, their father, the creator of these accounts. Furthermore, McDivitt, the bank’s President, made a particularly relevant and convincing statement at the time of the opening of the aforesaid accounts informing John Zabek and Walter Zambek of the legal meaning and effect of these signature cards. Even if the testimony of the two witnesses, Stanley and Frank Zambek—who were beneficiaries under their father’s will and accordingly would have profited if the aforesaid bank accounts had been declared to be a part of their father’s estate— were considered, arguendo, to be admissible, it would
Decree reversed, each party to pay own costs.
This amount does not include the money on deposit at testator’s death in either of the two bank accounts..
The family name was Zabek. However, various offspring subsequently changed the name to Zambek or Zombek.
No citation was issued against the Estate of Walter Zambek (the deceased executor).
Italics throughout, ours, unless otherwise noted.
No objection was made to MeDivitt’s testimony.
All these bank deposit cards are drawn primarily for the benefit of the bank. In Bunn Estate, 413 Pa. 467, the Court, in a footnote, said (page 471) : “Banks can avoid a large amount of litigation by modernizing their signature card so that it will clearly set forth the exact status and the rights of the parties. Note the clearly worded signature card in Cox Estate, 405 Pa., supra.” (Emphasis in original)
Italics in Brozenic Estate, 416 Pa. 207.
Hosfeld Estate, 414 Pa. 602, 202 A. 2d 69, relied upon by the Orphans’ Court and the appellees, is clearly distinguishable. Iñ"' Hosféld, we expressly stated that no bank signature cards had been executed in connection with the establishment of the disputed bank accounts. Therefore, we were not presented with evidence of a prima facie gift, and, accordingly, the burden of proof was upon the party claiming an inter vivos gift of the account.
Italics in Dunn v. Orloff.
Italics, ours.
Italics in Dunn v. Orloff.
Concurring Opinion
Concurring Opinion by
I concur in the decision of the Court, but since I reach the result by a somewhat different approach to the problem, I summarize herewith my reasons:
(1) I agree that the bank signature card establishing the joint account with right of survivorship between John Zabek and his son, Walter, in the form here employed constituted under our cases a complete written contract. The funds which went into the account being those of John, the contract was one of gift to Walter.
(2) While the validity of a gift may be challenged by proper evidence of lack of the requisite donative intent, lack of capacity on the part of the donor, or lack of completeness of the gift, no such attempts were made in this case.
(3) The testimony of John’s other sons, Stanley and Frank, as to statements in the nature of admissions made by Walter, ivas objected to at the hearing by appellants. I agree with Judge Hay, dissenting in the court below, that the testimony was violative both of the parol evidence rule and of the so-called Dead Man’s Act (Act of May 23, 1887, P. L. 158, 28 P.S. §322) and should have been excluded. It was violative of the Aet because, in seeking to reclaim the proceeds of the joint account Stanley and Frank were, of course,
(4) The testimony of William Z. McDivitt, the president of the bank where the account was opened, on the other hand, stands in a different light. While not essential to prove a gift, his testimony was strongly corroborative of John Zabek’s donative intent, and was unobjected to by any party. McDivitt’s testimony did not violate the Dead Man’s Act, since he was a disinterested witness as to both decedents, nor the parol evidence rule, since it was not offered to alter, revoke or amend the contract in question.
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