Onofrey v. Wolliver , 351 Pa. 18 ( 1944 )

I am firmly convinced that the majority opinion is based on an erroneous interpretation of law, and that the reversal of the learned court below is contrary to law and justice.

The majority admit that "Had the printed portion of the deposit card remained unmodified by any other terms, the defendants would have been joint owners of the fund, with the right of survivorship, and the fund, or any portion thereof, would not have been a part of the mother's estate". But the majority hold that since there was upon the card the written words "Pay to Dtrs [daughters] only after death of mother" no present interest vested in the daughters, that the written words postponed enjoyment until after the mother's death, and that therefore, the card was testamentary in character and the money passed to the mother's estate at her death. With this I cannot possibly agree.

The intention to create a joint account, with the right of survivorship, is unquestioned. That the money in the account, was the property of defendants was strongly asserted by them and not denied by anyone. They testified they lived with their mother until they were married, Helen when she was twenty-three and Susanna when thirty-five years of age. Each confirmed the statement of the other that they worked and gave their wages to their mother to save for them. Helen said she worked for eight years as a domestic servant for $50.00 a month and gave all to her mother. Susanna said she worked from 1914 to 1931 as a domestic and later as a weaver in a silk mill, and gave her earnings to her mother. Both testified their mother did save the money for them and that the money in this account belonged to them. Plaintiffs, all brothers and sisters of defendants, who must have known whether or not what defendants said was true, testified, but did not deny that defendants worked as indicated and gave their earnings to their mother. Hardly anything could be more impressive of the integrity of defendants.

It is difficult to understand, with this testimony in the record, how any court can say defendants did not have a present vested interest in this bank account from the moment it was created. If only this testimony were in the case, it seems to me it should be determined that the intention of the parties to create a joint account, with survivorship, had been successful. Defendants certainly had a vested interest in their own money.

But that is not all. If defendants had no such personal interest in the money, they got a present vested interest in it at the time the account was created. The action of the mother in making the deposit on the terms stated in the card gave defendants, whose names appear thereon, a joint interest with right of survivorship. The modification "Pay to Dtrs only after death of mother" did not postpone their interest. The account was joint, they each had an equal interest in it. Upon the mother's death, the fund formed no part of her estate, but rather became the sole property of defendants: Mardis v. Steen,293 Pa. 13, 141 A. 629; Reap v. Wyoming V. T. Co., 300 Pa. 156,150 A. 465; Patterson's Estate, 341 Pa. 177, 19 A.2d 165.

It is well settled, as we said in Knoll v. Hart, 308 Pa. 223,227, 162 A. 228: "In judicial construction one of the principal tests as to whether a document is a will or a conveyance inter vivos is: Was an estate granted and when did the maker intend that the instrument creating it should be effective?" It is equally true, as stated by us in Turner v.Scott, 51 Pa. 126, 134: "The doctrine of the cases is, that whatever the form of the instrument, if it vest no present interest but only appoints what is to be done after the death of the maker, it is a testamentary instrument." With these principles definitely in mind, it readily appears that the signature card here in question is not a testamentary writing. That a present interest vested in the daughters when the account was opened is made clear by the fact that since the account was created in the names of the mother and her two daughters jointly, no withdrawals during the lifetime of the three depositors could legally be made from this account without the joinder of all: Michie on Banks and Banking, Vol. 5, ch. 9, § 46, p. 105. See also the "Banking Code", Act of May 15, 1933, P. L. 624, Art. IX, § 903.¹ When the fund was placed in the joint names of the mother and daughters, the mother surrendered all power within herself to revoke her act and have the account returned to her name alone: 7 Am. Jur., Banks, sec. 509.

The majority opinion cites a number of cases² in support of its decision that the writing in question is testamentary. It is my opinion this writing is not testamentary, the cases cited are not in point, and are easily distinguishable on their facts from the instant case. In all those cases it clearly appeared that the paper under consideration was testamentary in character, since there was no intention to vest a present interest, only to appoint what was to be done after the maker's death. As for instance, (Grady v. Sheehan, 256 Pa. 377,100 A. 950) where it was directed that the survivor should pay the debts and funeral expenses of the one dying. Certainly interest and enjoyment was postponed there, not only until after death but until all the debts and funeral expenses were paid; only then, if something were left, could the survivor be allowed to enjoy it. How different the facts of the instant case, where not anything was appointed to be done after the mother's death. Here the interest was vested in all three the moment the account was opened but the time of payment to defendants was postponed. Since none of the three could have drawn the fund without the consent of the others,³ not anything was gained by anyone by placing the injunction — payable only after death of mother — on the card. This written statement is in no way inconsistent with or repugnant to the printed provision expressly creating a joint tenancy with right of survivorship.

In Lewis' Estate, 139 Pa. Super. 83, 11 A.2d 667 (a case very similar to the instant case), the writing under consideration was held not to be testamentary in character. There, the decedent, who had a savings account, addressed and signed a letter to the bank, dictated by the cashier at her suggestion, which provided that "I hereby direct that the savings account . . . be made a joint account with my son . . .the money to be drawn only in case of my death." (Italics added). Judge BALDRIGE, speaking for a unanimous Superior Court, said (pp. 85-6): "The final phrase 'the money to be drawn only in case of my death' is not inconsistent with an immediate disposition and does not make the writing testamentary in character. Where a present interest is vested,the fact that the actual enjoyment or payment of the money ispostponed until after the death of the donor does not make theinstrument testamentary (28 C. J. p. 624) as the mere deferring of payment until after the death of the maker is not of itself sufficient to make the writing testamentary: Eisenlohr Estate(No. 2), 258 Pa. 438, 441, 102 A. 117; Hess v. Jones 335 Pa. 569,573, 7 A.2d 299". (Italics added). This is the law of the instant case and should be followed here.

The trial judge, at the conclusion of the testimony, submitted two questions to the jury to be answered in the form of a special verdict: (1) Did the parties intend to include this deposit under the terms of the written agreement and (2) Did the defendants agree to divide the fund equally with all brothers and sisters, and were defendants guilty of fraud in failing to divulge the fact of withdrawal and division. The jury answered these questions in the negative and found in favor of defendants.

It is well settled that the construction of a written contract is a matter for determination by the court: Kolman v.Kolman, 335 Pa. 113, 6 A.2d 532, Pears v. Shannon, 329 Pa. 278,198 A. 307. I agree with the majority that it was error for the learned court below to have submitted the interpretation of the contract made by all the children to the jury, for there is no ambiguity in the agreement. However, plaintiffs were not harmed by this action, because the court was bound as a matter of law to have reached the identical conclusion at which the jury arrived. The intent of the parties, expressed in clear and unambiguous language, is that only the "estate" of their mother was to be covered by the provisions of that agreement. Since the fund in question never constituted part of the mother's estate, the contract of the children had no effect upon it.

I would, therefore, affirm the judgment entered by the court below.

Chief Justice MAXEY and Mr. Justice HUGHES join in this dissent.

¹ "A. Whenever a deposit shall be made in an institution in the names of two or more persons, the institution shall not pay out such deposit, any part thereof, or interest thereon, except upon the proper check, order, or receipt, as the case may be, of both or all of such persons, unless at the time of making the deposit a different arrangement shall have been specifically provided for, or unless at a subsequent time all the parties agree to a different arrangement."

A national bank is subject to the laws of the state in which it is doing business in respect of its affairs unless the laws are inconsistent with the laws of the United States, or interfere with the bank's purpose, or destroy its efficiency as a federal agency: Jenckes v. Deitrick, 27 F. Supp. 408.

² In Grady v. Sheehan, supra, the paper there in question was lodged with the bank and stated that the account was joint with right of survivorship, but also provided that the survivor was to apply so much of the account as may be necessary for the payment of the debts and expenses incidental to the last illness and burial of the one dying. In Turner v. Scott, supra, a man conveyed his farm to his son, subject to the provision that "this conveyance in no way to take effect till after the decease of the said . . . grantor." In Zell's Estate, 329 Pa. 312,198 A. 76, the paper under consideration provided that decedent's administrators hand over to one Anna M. Shupert "immediately upon my death, an envelope marked for her, in my Safe Deposit Box in the Bryn Mawr National Bank", which envelope contained certain listed securities. In Knoll v. Hart, supra, the written instrument there in question was a paper, which Hart had executed prior to his death and delivered to one Knoll, wherein it was recited that the two had established a successful business, and that since Hart recognized the value of Knoll's services and was desirous of compensating him, that he, Hart, thereby sold, assigned, and transferred to Knoll, his heirs and assigns, a one-third interest in the property, etc., belonging to him [Hart] trading as the Chemical Publishing Company, "the actual possession by Edmund E. Knoll of said one-third interest to become effective at and immediately upon my decease." "I do further bind my heirs, executor or administrator . . . to make, execute, and deliver . . . such . . . instrument in writing as may be deemed essential or necessary to fully vest the possession . . . in said Edmund E. Knoll." In Gibson's Estate, 128 Pa. Super. 44,193 A. 302, the paper being considered was a printed judgment note, in which certain of the words were stricken out, and which contained a direction that, after the death of the maker, there was to be collected from his estate and paid to the order of a named person a stated sum weekly, and which recited the reason for the gift. In Waltman v. The G. T. Co., 92 Pa. Super. 480, the owner of a savings account endorsed on the signature card that in the event of his death, he authorized the trust company to pay over to his wife the balance of money standing in the account.

³ Gallagher's Estate, Orphans' Court, Dauphin County (July 3, 1944), not yet reported.