HomeMy WebLinkAboutOC1971-0759 - ESTATE OF NOVIIN THE COURT Olf COMMON PLEAS OF WASHINGTON COUNTY,PENN ..
ORPHANS'COURT DIVISION
Wednesday,September 8,1971,at 10:00
o'clock A.M.,EDST.
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No.759 of 1971
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THE HONORABLE P.VINCENTlV'IARINO,
Judge of the said Court.
RONALDJ.McKAY,ESQ.,of Pittsburgh,
Allegheny County,repres enting the Res pon ent,
Gino Novi.
PEACOCK"KELLER,YOHE &DAY,ESQS.,
by CHARLES C.KELLER,of Washington,
Pa.,repres enting the Petitioners,Harry
Novi and Jos eph Novi.
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HEARING ON PETITION FOR CITAT':l~3:
Deceased.
BEFORE:
TIME:
APPEARANCES:
EMILIA NOVI,
ESTATE OF
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EXHIBITS
PETITIONERS'.EXHIBITS:
A -Mellon Bank Savings Account Passbook No.13-182 in the name of
Mrs.Emilia Novi or Gino L.Novi.
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W.P.N.B.Passbook Number 2768 from the Hill Top Office in the
name of Harry Novi or Emilia Novi.
W.P.N.B.savings withdrawal slip dated July 14.1970 in the
amount of $203.98.
Photocopy of both sides of Mellon Bank signature card titled
Mrs.Emilia Novi or Gino L.Novi.
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THE COURT:
MR.·KELLER:
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Mr.Keller,the Court is ready.
Your Honor,this is the time set for the
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hearing in a matter in re:Estate of Emilia Novi,deceased.A
Citation was issued on our Petition,directing the Respondent,Gino
Novi,to appear in Court to explain basically two ~atters.First of
all,the handling of and the ownership of a bank account which is
alleged to have existed at or prior to the time of the death of Emilia
Novi.And secondly,to produce a Will which he admittedly has in
his possession which he has not probated.
The issue before the Court here,I think,wil
boil down to a question of whether a joint bank account constituted
a gift inter vivos from Emilia.Novi to Gino Novi at the time of her
death or prior thereto.And I note that the Respondent is in Court
and is represented by counsel;that they have this morning filed
an Answer to our original Petition.
THE COURT:
MR.McKAY:
I don't have a copy of it.
Yes,it was filed downstairs and I advised
them that the hearing was set for 10:00 o'clock this morning,Your
Honor.
THE COURT:Mr.Zermani,will you go down and get the
Answer in this matter that was just filed?
MR.ZERMANI:
MR.KELLER:
I will,Your Honor.
The Answer is very brief,and in effect,
denies that there was an account in the Mellon Bank at the time of
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Emilia Novi's death;admits that the Will is in the possession of
Gino Novi.At this point,and before we get into the direct testimonJ
on the matter of the bank account,I would ask Mr.McKay if he will
produce the Will becaus e the Will would determine certainly what
parties in interest there may be.This is the Will.
MR.McKAY:We will,Your Honor,and let the record sho ~
we can stipulate for the record that Cesare Novi died in 1958.Do
you have the precise date of that?
and share alike to my four children,to wit:Gino Novi,Paul Novi,
Joseph Novi and Harry Novi,all of the City of Pittsburgh.I think
December 31,1958.
For the record,Your Honor,it should appeaYo
So stipulated.
So that the effect of the Will is if it's effective
It was December 31,1958.
at all,to leave to fou r children in equal shares all of her property.
that I have handed to counsel for the Petitioner what is the original
in Article Second of this Will that Emilia Novi leaves all ,of her prop rty
of the Last Will and Testament of Emilia Novi,dated July 23,1954.
first of all to her husband,Cesare Novi,and upon his death,share
MR.KELLER:
HARRY NOV!:
MR.KELLER:
MR~McKAY:
MR.KELLER:
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There is one complication here,Your Honor.One of the persons
named,one of the four sons,Paul Novi,died in 1967.And he was
survived by a widow and four children.And as I understand the Wills
Act,the four children would assume his position and be entitled to
any devise qr legacy which might come to him.There is no lapsing
as to his---I also note Mr.McKay pointed out that in Article Third
this is specifically provided for.II In the event any of my children
should predecease me or my husband then the share that suc'h child
might have,otherwise have received is to be equally shared by the
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child or children of the deceased beneficiary.II Your Honor,I
represent two of the brothers,Mr.Joseph Novi and Mr.Harry
Novi.·So far as I know,the children of Paul Novi are all minors.
The oldest being about 17 years of age.And they are not representee
here in Court today..At some point it is my feeling that they must
receive notice of this and they must have an opportunity to participa e.
THE COURT:We will reach that matter when it is properl3
brought before the Court.
MR.KELLER:For the purpos.es of this hearing,Your Hono
may we have the Will marked as an exhibit?You can either do it·
as your'exhibit or we will do it as ours.It doesn't make any differen~e
to me.
MR.McKAY:Your Honor,I have no objection to'the
existence of the wiil which we had admitte,d to in the pleadings being
brought to the attention of the Court,but as far as it being placed in
evidence as an exhibit at this point,I think this might be out of
sequence;that there has been no showing that the Will was really of
any relevancy at this point.We are here to determine whether or no
there was,in fact,a gift of certain assets of the decedent which Mr.
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Keller has claimed should be probate assets.And I think until we
make a determination of that,the Will certainly is not relevant to th's
proceeding.
THE COURT:The objection is sustained.
MR.KELLER:Procedurally,Your Honor.it is my under-
standing that the Petition having averred the existence of assets in a
:!z~bank account.that the burden first of all is on the person claiming
>-(IIz~the gift to establish at least a prima facie gift.And if I am correct
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ze in that,why,then Mr.McKay should have center stage at this point.
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an account.It was my understanding that this was the purpose of
the Citation to bring the Res pondent into Court who has knowledge
of this account to present thisfnformation to the Court.
this Petitioner at this point to primarily show the existence of such
The Petitioner is the moving party and origip.ally
Your Honor,I be lieve the state of the record
by the decedent at the time ofher death.So I think the burden is on
not admitted the existence of a joint or any type of bank account OWnE d
at ,this point as far as the pleadings are concerned is that we have
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has the burden of proof.
MR.KELLER:All right,Your Honor.We will call Gino
Novi to the stand as for cross examination.
Gino Novi
GINO NOVI IS CALLED AND SWORN.
AS ON CROSS EXAMINATION BY MR.KELLER:
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'Would you please s'tate your name?
Gino Novi.
Where do you live?
15 Fairhill Drive,Washington,Pa.
You are a son of Emilia Novi?
Correct.
And your father was Cesare Novi-.
Correct.
Do you have any brothers living?
I have got two,t~O)others besides myself.Harry Novi and Joseph N i.
Would you speak up just a little louder so we can hear you?
I've got two brothers,Harry Novi and Joseph Novi.
Your mother,Emilia Novi,was living with you at the time of her
death,was she not?
That's correct.
That death occurred on March 25,1971.
Yes.
How long had she been living with you?
Oh,July of 1970 up until March,until her death.
You brought her down from her home in Pittsburgh,is tha t correct?
ThatIS correct.
Now at the time you brought her down from her home in July of 1970
Gino Novi
what 'assets did she have?
A She had a bank account,that's all;her Social Security,that's all.
She had nothing.
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She had some household goods too,d'idn't she?
Oh,yes.She had household goods and things of that sort.
What bank account did she have?
She had a bank a'ccount at the Mellon in Pittsburgh,Mellon Bank in
Pitts burgh.
And how much,money was in that bank account?
Oh,'at the time I think seventeen five or seventeen six.
That would be $17,500.00?
Yes.If I recall correctly,yes.
What names were on that account?
Mine and hers.
What happened to that account?
Well,I changed it over to my name after she had told us - --when she
was at our place there,a few weeks after she cam e to our place,
she saw our kids sleeping on the floor.We had no room for her.
She felt such compassion for them,she said,"Take the money out."
My brother had an account from the beginning,she had this account
in Pittsburgh.Everytime she needed something,we'd go and draw
maybe $500.00 or $1,000.00 and we would put it in the bank account
at the Hilltop Bank,which was close to her home,you know,so she
could go and draw out whatever she ,wanted to.
Gino Novi 10
Q That would be a branch of the W.P.N.B.,wouldn't it?
A Ye~,I think so.So then when~ver she saw our boys were sleeping
on the floor and we had first decided to build on theoutside of ou r
patio,and then we decided we better just go ahead and maybe put a
correct?
she told us this,when she was first there.
We went ahead and got this sofa on ber signature,you know.She
knowing it was our account anyhow because this was set up back in
And then afterBank." .So we used it,what we needed,you know.
1958,joint tenancy and right of survivorship.So we changed it over.
we could use it,which wasn't enough,we needed that for a down dep<sit.
she had told us go ahead and us e it,and we went ahead and did this,
says,"Go ahead."She says,"The bank,use it also at the Mellon
SOl:we got--she told us she had some money up at the Hilltop Bank,
sleeping--we call it a sleeping sofa,you know,you use for sleeping.
Q When did she tell you you could do this?
A She told us it was all right.We could go ahead and use this.After
A November of 1970;November 2nd or 3rd,somewhere in there.
Q And you changed it over toyour name.She didn't do that?Is that
Q When did you change it over to your name?
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A About two weeks or so after she was at our place.This was more
or less a verification,you know,that we could go ahead and use it.
When this was set up it was right of survivorship.She knew what sh
was doing.This was back in '58.
Gino Novi 11
Q You areC'l';:Uir,nin:g;here that she made a gift of that account to.you,is
that correct?
A No.I was under the impression it was ours,due to the way the accOl nt
was set up.And she just more or less verified it here when she cam e
to our home and lived.She knew we would be the only ones that woul~
Well,I think back in '58,actually,it was placed on my name,joint
When do you say that the gift occurred?
take care of her.My brothers didn't want any parts of this.
And we have established the fact that he has taken
Your Honor,at this pointMR.KELLER:
at a time prior to her death in November of 1970.
the money from the account and treated it as his owr
we have established generally when it was set up.
own case the prima facie existence of that gift.We
to him by virtue of a joint tenancy account back in
1958 of an account in th'e Mellon Bank.At this point
have established that a sum of money existed and
the witness has taken the position that a gift was rna ae
it seems to me that it is now up to him to prove in b's
tenant.
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We therefore would ask the Court to now require
the Respondent to prove a prima facie gift.
THE COURT:The Cou rt would not so
rule in the midst of the first witness's testimony
Gino Novi .12
whether or not a prima facie gift has been made out
and the effect thereof is to be d.ecided upon the facts
adduced before the Court by all the witnesses in the
proceeding and after all of them have been.adequately
heard.We are not at that point yet where we can mak I:>
such a decision.The burden of proof still rests on
him fully on the inception of the account,but it seems
willing to assume that burden and go ahead.and exami e
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MR.KELLER:Your Honor,I am perfect y
phase in the treatment of this .witness.However,if
to me that this is improper for the cross examination
.a prima facie gift inter vivos.until we have heard all
We are simply stating that we-are not going to make
The Court has no prefere[lce.THE COURT:
the Court prefers,why,we will go right ahead.
relevant testimony in the matter.We are not going to
a ruling as to the bu rden of proof in the matter of
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make such a ruling in the midst of the testimony of th~
first witness.
CONTINUED EXAMINATION BY MR.KELLER:
Q Mr.Novi,I want to question you about the inception of this account.
When was your name added to the account?
A Ra~k in Hl5R Fp.hruarv
Gino Novi
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Q Do you have any records·here either of the passbook or of the bank
showing the inception of your name on the account?
A Yes,I have.
Q May I see them please?Mr.Novi,whose idea was it to add your
nam e to the account?
My mother's idea.
And what did she say at the time?
Well,she says."I want your name on it just in case I should need
anything,II you know.'IYou're the one I have the most trust in.I
want you to take care of it."
.Did you take her down to the Mellon Bank?
At the time.yes.
Did you sign any signa ture cards at that time?
Yes.
Did she?
I think she did too.yes.
Do you have those signature cards here today?
No.I do not.
As I understand you,what you'said is that she added your name to th's
account as a matter of convenience,is that correct?
A No,I don't think so.It wasn't a matter of convenience.It's just that
she felt that I would take care of it,you know.She knew my brother
wouldn't if everything came to----in other words,she wanted this
money for her old age,actually.This was an account she put away
Q
Gino Novi
for her old age and she knew I would help her and I wouldn't put her
away or anything like that.She was afraid of two things:running out
of money and being put away.you know.
And then she was counting on you to take care of her if she got sick,
is that correct?
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Well.throughout her whole lifetime there,anytime for that matter.
Was she counting on you to pay her bills if this was necessary?
While she had the account there.yes.
On one occasion she took a trip to Italy,didn t she?
Yes,she did.
Was she counting on you to take care of her affairs and her bills whi e
she was away?
Not her bills.If there was any bills to be paid,they would be paid.
She was only gone a month,a month and a half.No,two months rather.
Two months was it?I don't remember exactly.
She was relying on you then to keep her affairs current and to help h r 'f-
with her account.
As long as she needed it,you know.She didn't---very seldom did st e
ask for anything of that sort because she was capable.
Well,then.as a matter of fact.the addition of your name to the
account was for her benefit and convenience,wasn't it?It was an
aid to:hHJ;'.wasn't it?
A Well.it could have been an aid to her if you want to look at it that w:y.
I guess.in a way.
Gino Novi
Q Certainly it wasn't for your convenience,was it?
A Well,when t,his was written up she says either way,you know.I
could have drawn on it if I wanted to,that's the thing.I had the
authority to draw on that anytime I felt like.it,but I wouldn't because
I didn't need it.Only did I draw whenever she was at my home and
I got pressed.There was nothing I could do.It was her idea to draw
on this money.As long as I didn't need it I had no reason to touch it
Q .You didn't consider the money yourself at that time,did you?Wasn t
all of this money her money?
A Oh,yes.I didn't put anything towards it.
Q Now why do you think that she put your name on the account?
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MR.McKAY:
to the intent of the decedent.
Object to the question as
Q I will rephrase the question,Your Honor.Do you know why she put
your name on the account,rather than one of the other boys?
A Due to the fact that she knew that it's been going on throughout her
lifetime that if it ever came to a point where she needed help during
her old age or anything of that sort,that I would be the one to take
her in.
Q As a matter of fact,you are the oldes t son,aren't you?
A Yes,I am.
Q As a matter of fact,it was because you were the oldest son that she
put your name on it,wasn't it?
A No,I don't think so.I can't truthfully say that.
~inn Novi 16
"Q .Mr.Novi,you are the one who lived the furthest away from her plac."
'of residence.
A Yes.We were in Pittsburgh all these years.Just the last 13 years
we're in Washington.
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Where were you living at the time this bank account was 'established?
In Pittsburgh.
And how soon after that did you move to Washington?
Oh,I think the same "year,the second year after that,'58.I think it
i~was '58 also.No)I take it back.'56.I don't remember the exactClzi
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Were you your mother's favorite son or did she treat you all alike?
Well,we had a few in the family that weren't t.oo---I think she treate j
us pretty much alike.
Whos e money was this originally?
Well,it's hard to say.It was probably my dad's and handed down to
my mother and soforth.
This account existed before your name went on it,didn't it?
Yes.
IsnIt it true that this account originally was in the name of your fathE r
and mother?
A Right.
Q And after your father died your name was added to the account along
with your mother.
A That's right.
Gino Novi
Q We;.:would ask the Court to mark this as Petitioner's Exhibit "A ".
(St enographer marks Petitioner's Exhibit -liP'II).
17
MR.McKAY:No objection.'
Q Mr.Novi,I;note that this account indicated by savings account passt ook
,number 13-182 drawn on the Union Trust Office of the Mf~llon Nation:1
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Bank and Tru-st Company indicates that the account was opened in thE
name of Mrs.Emilia Novi or Gino L.Novi on February 19,1958
with a deposit of $6,834.52.Is that correct?
Yes.
Thereafter I note that there have been a number of deposits made
between 1958 and 1970.Were those deposits all the money of your
moth.er?
Yes.
I note that there are five withdrawals,six withdrawals prior to the
final withdrawal.In April of 1960 there was a withdrawal of $1,000.
Did your mother withdraw that money?
I think she did that on her own,She got some Gln her own and and so ine
whwere with her to withdraw.This is the account we had taken up
the Hilltop Bank for her benefit and use.
Q Was that the time she took the trip to Italy?
A I can't remember when she went to Italy,to tell you the truth.Was
it '58,'60?
Q Could we agree that that was the withdrawal made for her trip to
Ttalvand that she made that withdrawal in Aoril 15 of 1900?
Gino Novi
A I can't say for sure if that was it.
Q The next withdrawal is May 16,196·7 in the amount of $500.00.Did
she withdraw that?
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A I don't know.I was with her,my wife was with her and a lot of
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Jimes she would ask my wife to go with her to withdraw.Other tim s
we'd go along with her.I've been with her a couple times.
been with her a couple times.She'd do this whenever she had to bu
some clothes or something like that,you know.My wife would go al ng.
Mr.Novi,my point is all of these withdrawals prior to the time she
'went to live with you,were these withdrawals used by her and made
by her for her benefit?
Yes .
I note a withdrawal on May 16 of 1967 of $500.00.Anoth~r.withdraw 1
December 18,1967 of $100.00.And again March 18,1968 of $100.O.
And would the same thing be true of all of these,they were withdraw
by her and for her use?
Yes .
On April 26,1968 there was a withdrawal of $1,000.Did she withdr w
that?
A Like I say,I don1t remember if she---we were with her or not.But
again I repeat,we took this money out to put in her account up the
Hilltop Bank,which was close to her home.When she would run ou
of that we'd go back and draw some more.
Q Isn t it true that the $1,000 she withdrew on April 26,1968 was put
Gino Novi
into a new bank account up at the Hilltop branch of W.P.N.B.?
A That could have been more or less for convenience for her because
19
it was too much for us to come from Washington to Pittsburgh everyt"me
she needed something.
Do you know what names that account was opened in?
That was in Harry's name.She put his name on it,made him the
beneficiary on that one.
What you are saying is she opened a joint bank account.,
For Harry and her.
Naming herself and your brother Harry Novi,and was that a jpint te liancy
accou nt?
Yes,the way I understand it.
I note here that ~n August 3,1970 there was a withdrawal of $5,000.
Yes.
Did you withdraw that money?
I withdrew that after she told us to go ahead and use the money.We
had planned to build a room for her.This is what she wanted.
And on November 2,1970,you withdrew the balance of $14,281.90.
Would that be correct?
That's correct.
And that dos ed out the account.
That's correct.
And thereafter,you did not redeposit that money in anyother accoun
that had her name on it.
Gino Novi
A No.The rEason I waited until November also was the fact we had to
pick up the interest,we were advised to pick up the interest on this.
Otherwise,I would have withdrawn it all at the time;I could have
20
withdrawn this money anytime,but I didn't need it.When she came ,frith
uS,then I needed it.
Q I callyour attention to a time back in June :6f 1958.and ask,you whethi=r
you recall a meeting in the diningroom of your parents I home in
Pittsburgh on Climax Street,at which your mother"father and all fo r
of the boys were present,.and a discussion ensued involving the prep r-
ation of Wills for your father and your mother.Do you remember su h
a meeting?
A I don't think there was ever a meeting.In fact,I know there wasn't.
If there was it w,as between the other three.I didn't know a thing abl ut
this.This is certainly news to me.II m suspris ed to hear you say the t.
Q Do you know how it came about that your mother and father prepared
Wills on July 23 of 1954?
MR.McKAY:Your Honor.I will object
to this line of questioning for two reasons.One,I
don't see the relevancy unless some connection can bE
established between any provision of the Will and the
particular account in ques tion,either revoking the
joint tenancy or having some effect on the joint tenancw.
THE COURT:
exception noted.
The objection is sustainec ;
ino Novi
MR.KELLER:If it please the Court,Wi
21
u
line of questioning is being pursued because we intend
to offer evidence that Mrs.Novi and her husband had
a settled plan for the distribution of their worldly goo s
to their children.The plan had an inception prior to
the death of Mr.Novi.And we belteve that the proof
of that plan and subsequent evidence indicating that
there was never any intention of changing that plan is
relevant and material.We would like to go on and
question this man jus t a little bit further as to what
he knows about thes e events.If he says he doesn't
know anythingl that's all right.But we propose to pro e
this with evidence of our own at a later time.
THE COURT:The Court can see no
relevancy at this time.The exception is noted.
(Continued examination by Mr.Keller):
Q This passbook which has been marked Petitioner's Exhibit "A "I was
this constantly in the possession of your mother prior to the time sh
came to Washington to live with you?
A Yes l she had it.There are time she wanted me to take it too.
Q Do you know where she kept it?
A She had a little strong box,she kept it in her room.
THE COURT:Mr.Keller,the Court is
e
(hrio Novi
note the deposit of $5,000.,00 on April 26,1966.Have
you inquired about that as yet?
22
MR.KELLER:Yes,sir,I am aware of
the origin of that and we will produce testimony.
THE COURT:
as to that deposit?
MR.KELLER:
THE COURT:
Has this witness testified
He has not.
I wish you would inquire
about that so that we will know where that came from.
Q Mr.Novi,on April 26,1966,a deposit of $5,000.00 was made in th
Mellon Bank account.Do you know what the source of that mmey wa ?
A Yes,I do.That was from the sale of the house;that was in '66.
THE COURT:
(Stenographer reads back the last answer).
A She sold her home.
I didn't get that answer.
Q At that time your mother sold her home on Climax Street,which hac
been the property of your mother and father prior to his death.Is th~t
correct ?
A Yes.
Q And that money was taken down to the bank and deposited by your mether
with your brother Harry,wasn't it?
A Whether he went along,I do not know.
Q But'you weren't there when that was done?
,------------..,---------------------------------------------c-----.
ovi 23
A No.I was not there when that was deposited.
Q Your mother,after she sold her home in 1966,the one on Climax
Street,she lived in several different apartments,didn't she,before
coming up to Washingtbm in July of 1970?
A Yes.
Q Following the death of your father while she lived in her home or in
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the apartment in Pittsburgh,did .You ever hear your mother 'say
anything about wanting all of her sons to be treated equally and to
receive equal sharesJof anything left at the time of her death?
No,actually,she didn't say nothing like that.
You never heard her say anything like that?
What she was afraid of was running out of money.That was her mai
concern for her old age.This was her big problem.
I think you have indicated that you were aware she did set up another
bank account at the Hilltop branch of W.P.N.B.naming Harry as a
joint tenant,is that correct?
She told me this,yes,which I had no objections to:,you know .It
didn't matter to me.
What was the purpose of that account?
Well,Harry lived closer than I did,you know,and it was for her
benefit also.She only had a few blocks to go,about a half mile to th
bank.She could withdraw anytime she felt like it.
Q In other words,that was a convenience account for her,wasn't it?
A Yes,it was.
n'ino Nov;
Q Why do you suppose she put Harry's name on there?
24
MR.M£KAY:Object as to the ques tion.
Q I will rephrase the question,Your Honor.And do you know why she
put Harry's name on there?
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She wanted him to be the beneficiary what was left there.I don't
know,actually.I really don't know.
Did you ever discuss this with Harry?
No,I didn't,I didn't think it was important.When things are going
you don~t:,think of these things.I thought nothing of it.
As a matter of fact,Harry's name was added to that account,wasn't
it,just as a matter of convenience to help her with the bills any timE
she wouldn't be able to pay them or might be sick or away.
I can't truthfully say this.I don't know what was in her mind.'
All right.What happened to that account?,
Well,as I'll repeat,when she came to our place we had to buy the
sofa,then she mentioned she had this money up the Hilltop Bank,
which we knew she had.She signed the release for it.She went up ar d
signed..and withdrew the money.
When was this?
It must have been around the latter part of Ju.ly.
So you are saying that within two or three weeks after she came to
your house that she went up to the Hilltop branch and withdrew the
money which was in the joint account with Harry's name.
A That's correct.This was her idea,of course.I
Gino Novi
Q She turned this money over to you to buy a couch for yourchome ?
A What you call a sofa couch.
Q And you are telling us this was her idea?..
A She signed the check.It was her idea.Like I say,when she came
down ~n the morning and saw our kids on the floor,she had such
compassion for them,you know,that she wanted to do something.
:3z~Q Was this a checking account or savings account?..I>-(I)
~A Savings account.
II.
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Clz
:I~.did you take it to the bank?
s:
~A I don't remember how that was,whether she signed a withdrawal slir
i..(I).
Q or whether she went up to the bank with it.I don't remember.actual y .
..I«~Q Mr.Noyi,this is not much more than a year ago.
::J.,
I:S A Who makes notes of things like this?I dontt,
vi~Q Did you go to the bank and take the money out?
II:oII.~A I really don't know if I was with her or not...II:8 Q Did she go to the bank?
..I«~A I don't remember how that was.actually.
I&.o
Q Do you have the passbook for that acrount?
25
A I have it at home.
Q Will you produce it?
A We can produce it if we have to..:::.~
MR.McKAY:Here it is,Mr.Novi.
We are producing it,Your !bonor,for the purpose of
ninn Novi 26
getting in as many facts before the Court as possible.
I will,at this point,object to this lirie of questioning.
This account was not the subject of the Citation.Ther~
has been no allegation or proof that any monies from
asked him as to the dis position of this money..
this account eventually got into the account that is the
some personal property for him.We have that in the
record.What IS the difference who went up and took t e
,'
This is true.While this
Your Honor,I have alrea(y
It was used for purchasini
I believe it is collateral
MR.KELLER:
THE COURT:
THE COURT:
.MR.KELLER:
in a joint account.
money out of the bank?That passbook wouldn't show
that anyhow.It doesnIt show who made the withdrawal
unless we can show that this fund or any portion there)f
issues before the Court here today.
into collateral matters that have no bearing on the
was deposited in the account in question.
subject of the Citation.I really think 'we are getting
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is true,we.wanted to pursue it and will pursue it at
a later time because we think that the manner of the
handling of this account is cons istent with the family
plan and what was true of the handling of this account
~;no Nov;
and the purpose of the parents was also true of the
handling of the other account and their PU~pCE e.
27
And we think that the evidence with regard to this acc(unt
is for that reason relevant.There is some authority en
this subject,and we will be glad to cite that at a later
time.
THE COURT:The Court cannot see the
relevancy of that issue at this time.We don't have
any definite plan placed in the record here that counSE 1
is speaking of and we cannot have testimony in furthe ance
It's not pertinent at this time.The objection is susta ned.
(Continued examination by Mr.Keller):
Q Do you ever recall a conversation with your mother during the time
she was living at the Climax Street house in whlch you commented t at
she was a very thrifty person and that she should feel free to go ahefid
and spend her moneYI and that she responded at that time that she
had enough for her needs and that when she was gone,.whatever she
had would be shared equally among her sons?Do you remember sue h
a conversation?
MR.McKAY:Object to that question aE
not having any bearing on the issue before the Court
here today in handling this particular account and
Gino Noyj,--f--=2:.:;:8:......
disposition of it.
THE COURT:The objection is sustainec;
exception noted.
Q What change in your mother's condition occasioned her coming to
live with you in Washington?
for the Petitioner as to where he intends this line of
account occurredl w,hen Mr.Novi took unto himself
here for undue influence;that there was in every sense
the money in this joint accountl that Mrs.Novi was
If it please the Courtl we
If it pleas e the Court,at
MR.KELLER:
MR.McKAY:'
propose to show that at the time the transfer of the
seriously illl had had a stroke;that there was potentifll
this time we'd like to have an offer of proof from coursel
questioning to go.
partiallYI off and:o.n,1 you know.She was doing thingsl she was getting
forgetfull in other words I at times.
A Her age was 79.
A We111 she started to get a little bit---was starting to loose her mind
Q What was her age at that time?
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a confidential relationship.That this in turn shifts the
burden to the alleged donee here to show that his cone uct
has been absolutely above reproach.
THE COURT:Off the record.
~ino Novi
(At the direction of the Court,off-the-record discussion was not
recorded by the stenographer).
29
MR.McKAY:We would object to the
testimony being elicted as to the period of time relati g
to Mrs.Emilia Novi's period of residence in the homl
of Gino Novi.It is our position that the establishment
of the joint account,right of survivorship in the Mellen
Bank occurring in 1958 is the significant date as far
as the creation of a valid gift inter vivos is concerned
and therefore,if there is to be any testimony as to
a confidential relationship or undue influence,it shou d
relate to the time of the creation of that account and
the gift that it involved.
THE COURT:Now let's see,the creatic n
of the account,as I recall,was in 1958.Now when
was the subsequent account created?
MH.KELLER:
THE COURT:
1968.Oh,excuse me.
Was the account here we
have here,the passbook account that we have been
referring to,was that brought up continuously since
1958 ?
of 1970.
MR.McKAY:Until it was closed in Octpber
Gino Novi 30
THE COURT:When he made the final
withdrawal in 1970.
MR.McKAY:Correct.
THE COURT:I agree with counsel,
Mr.McKay,that the critical time here in question is
with this witness would not be material or pertinent.
off the record for just a moment here?
at the inception of the 'account in 1958,and that the
.
6ondition of Mrs.Novi at the time that she was living
Your Honor"may we goMR.KELLER:
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recorded by the stenographer).
(At the direction of Mr.Keller,off-the-record discussion was not..=uii:I-UIii...<I:§o::J~(Continued examination by Mr.Kelled;
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~Auii:~Q
Mr.Novi,after you moved out to Washington in 1959,about,your
brothers had considerably more contact with your mother than you
did,didn't they?
Yes,probably.
As a matter of fact,Joe was living with your mother up until 1966,
A When he was home.We could say he was boarding there.
Q I callyour attention to a time in November and ask whether it was
necessary to put your mother in a nursing home.
A Yes,because my wife---it started to get her down too.
Gino Novi
."
Q Do you recall a conversation with your brother Harry at that time,.
in which you expressed concern to him about the expense of this and
asked if he would share in the bills?
At one time if we should run out of moneYI then he would help.
Who paid the funeral bills and the expenses at the time of the death 0
your mother?
We took care of everything.
Who is we?
Well,the account,through the accountl my account..
You paid the money then out of this account?
Yes.
31
Do you remember a conversation at the "grave site with Joe and perh ps
othersl perhaps Harry,in which you said,"After I pay the bills I'll
distribute the money among the three of us."Do you remember that
conversation?
I says we'd get together because they were quibbling.It wasn't a
few days after they wanted to know what I was doing about the Will.
I hadn't even paid the bills.They were more interested in what was
coming than helping take care of my mother.That's the point..
Q You did have a conversation with them at the grave site then.
MR.McKAY:I will obj ect to this line
of questioning,Your Honorl as being ir~elevant to thE
issue involved in the case,namely the existence of th
account.
Gino Novi
MR.KELLER:Just a minute.The issue
32
here is whether there was a gift ma~e to this man,no
to the existence of the account.You haven't establishEd
a prima facie gift.The question is whether there is a
gift and the oral statements of this man are entirely
relevant as to his perception of the ownership of the
account.We will overrule the objection and permit
accoun~and the effect of the joint registration of the
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THE COURT:Oral statements would be
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the question.Will you read the question?
(Stenographer reads back the last question:)"You did have a con-
versation with them at the grace site then."
I said we would get together.But I didn't mention about what or what,
was what,you know.
Are you telling us that you made no mention of a future distribution cf
the fund toyour two brothers?
No.I just said we'd get together and discuss it,you know.I never
said anything about making future distribution becaih££I kne.w this
money was m me.
Q Mr.Novi,isn't it true,as a matter of fact,that the first time you
ever told your brothers that you were claiming the money and that yc u
intended to keep it all for yourself was on or about May 1st of 1971"
after the death of your mother?
,--------;----..------------------
Gino Novi 33
A No.Let me put it this way:when I took her I says there won't be an)
money left on this,and that's as far as it's gone.They were so,happ.
that I had taken her in)this is all they wanted.I'd take her and take
care of her.
Q Mr.No vi)when did you----
witness s peaks so fast and so indistinctly that it is
is.I dislike interrupting the way I have)but this
almost impossible.I can see the trouble we are havin
the reporter to get on the paper here what the answer
Mr.Keller)let's permitTHECOURT:
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down there.I wish the witness wou'ld attempt to speak
more distinctly)loud enough so that everyone in the
Courtroom can hear"which they have a right to)and
slowly enough to have the reporter ga.ven an opportuni y
uiItI!!to transcribe or to put it on the record.
a:oII.~Q Mr.Novi)when was the first time that you told your brothers that
I-a:
:J8 there would be no distribution from the bank acco unt or otherwise to
.J«
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A I don't remember when I said anything like that.Just at the time -of
the funeral.I just said we'd get together because they inquired a bout
the Will.There was nothing definite on it,whether they were going
to get anything or not.
Q Now you have told us,M:-.Novi,that this money was your mother's
money and your father's money in its entirety originally.Is that cor ect?
Gino Novi
A That I didn't put anything towards it.You know,I didn't help bui~d it
up or anything like that.That's what I mean.
'Q'It was their money and they made all the deposit/?in the bank,didn't
they?
34
A
Q
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Yes.
And you didn't make any withdrawals from this account at all betwee
the years 1958 and 1970 in the fall.That is cor'rect,isnit"it?
That's correct.But only for the simple reason I didn't need it.I
knew if she got sick I was the one that had to take care of her.This s
what she wanted.
Isn't it true,as a matter of fact,that you didn't consider this'mOnE y
yours at that time,that you considered this your mother's money?
No,I didn't at the time.If I needed it she told me to use it as I need d
it.
You are telling us,Mr.Novi,then that in 1958 you considered that
your m other gave you all the money she had in the world and that
you were free to take it any time you wanted to?Is that what you arle
telling us?
Yes,for the simple reason she knew it was a joint account,that I
could take it out or she could take it out,either way.She knew I
wouldn't touch it.I mean I had no need to.Because I knew what wa
coming,if she lived,I might have had her ten years,fifteen years.
I didn't know;I was looking forward to then,because I knew my brothers
wouldn't share in"that,wouldn't take care of her.
Ciino Novi
Q Do you wish to examine him?
35
MR.McKAY:Yes,just a few brief questions.
EXAMINATION BY MR.McKAY:
Q How long haveyou been a resident of Washington,Mr.Novi?
A Since '58,about 13 years.
Q Where areyou employed?
A Federal Paper Board in Washington.
Q How long have you been employed there?
A Since---well,we came here in '58,but they bought over here in
Pittsburgh in '54,so I've been with them about 16,17 years.
Q All during the pe riod of time of the existence of this account in quest on,
you have been gainfully employed?
A
Q
A
Q
A
Q
Oh,yes.
Do you have a family?
I've "got four children.
Has your income from your employment been sufficient to care for
yourself,your wife and your family?
It has been.
No further questions.
MR.KELLER:You may step down,Mr.Novi.
l-la rrv Novi
HARRY NOVI IS CALLED AND SWORN.
DIR'EOT:EXAMINATION BY MR.KELLER:
'.
36
Q
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Your name is Harry Novi .
Right.
What is your relationship to Gino Novi?
My brother.
And you are both sons of Emilia Novi and Cesare Novi.
Right.
Where do you live?
1522 Berkshire Avenue,Pittsburgh,Pa.
How old are you?
49.
What are the ages of you boys?
Well,I'm 49,like I says;and Gino is about 60;and Joe is about 57.
How old would Paul have been if he were living?
Paul would be about 59,1 guess.I'm not sure.
Then you are the younges t of the children?
I am the younges t,yes.
And Joe is the next to the youngest?
Right.
You are married?
Yes.
Do you have children?
Two children.
Harrv Novi
Q Are you regularly employed?
A Yes.
37
Q I call your attention to the summer of 1958 and ask whether you atter ded
a family meeting in your home in which the subject of distribution of
property by your parents was discussed?
Well,this was a supper that my dad had us all get together.And lik
we always talked about,if something werit wrong,you know,they go .
sick and they couldn't handle the money,the account----
MR.McKAY:I will object to this evider ce,
concerning this conversation.It's going to necessaril
become involved as hearsay,Your Honor,and I am g(ing
to have the opportunity to cross examine all the par-
ticipants in the conversation.Once again,I believe
we are getting into general ideas of the estate plan,
which mayor may not be eventually carried out.
Unless the testimony can directly relate to this accoupt
and be of the own personal knowledge of this witness,
we will object to it.
THE COURT:
exception noted.
The objection is sustaine
Did you r father and m other express any preference among the four
A No.
MR.McKAY:Objection,Your Honor,fpr
Harry Novi 38
the same reason.
THE COURT:The question has been
answered.It IS not relevant to the issue.
Q Prior to the time when this bank account was established,do you kne,w
whether you r father and mother had any settled plan for the distribut'on
Cesare and Emilia Novi formed a settled plan for
their death,after the death of the survivor of them,
the equal distribution of their worldly goods after
by the tes timony of this witness that as early as 1954
We would offer to prove
You may.
For the record,Your Har or,
The objection is sustainec;
Objection,Your (Honor,
MR.KELLER:
MR.KELLER:
THE COURT:
THE COURT:
MH.McKAY:
in equal shares to their four sons,or in the event onE'
exception noted.
I'd like to make an offer.
for the same reason.
of their goods among the children?
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or more sons should die,then his children would takE his
share.We further offer to prove by this witness that
this plan was also related to the preparation of Wills
which were,in~'fact,prepared for both Mr.and Mrs
Novi on November 23,1954,and so provided.We
Harrv Novi 40
vary the clear terms of that account.As far as a
general estate plan or any mention or testimony con-
cerning a general estate plan,it is our position that an
has
estate plan will speak in the instrument that/been draf ed
to effectuate the estate,plan,th~Last Will and Testan ent.
And any evidence that would seek to enlarge upon,val y
or modify the clear terms of that Last Will and Testa tnent
we would strenuously object to.
THE COURT:
Exception noted.-
MR.KELLER:
The obj ection is sustainec .
Your Honor,I do not
understand,the ruling of the .Court .
THE COURT:The ruling of the Court is
the objection that was made by counsel has been susta'ned.
MR.KELLER:
THE COURT:
He made several objectio 1lS.
That is the ruling of the
Court.He made several objections.And if any of the
several objections tha t he made are applicable,then
the Cou rt is proper in sustaining the objection.We feE 1
that among the objections that he made,one or more
of the objections are applica:ble to the situation here
pending and we sustain the objection.
MR.KELLER:Your Honor,for my guide nce
and assistance in continuing in the presentation of my
Harrv Novi 41
case,is ·the Court ruling-particularly on his objection
..
to the use of parol evidence?I think this is .critical.
And it goes back to my original point that at this point
he has not established a prim.a facie case.There is
not such a documentl such a clear-cut relationship
here that parol EWidence will be excluded,and we thinJ
to this issue.And we have a Will that is mentioned in
what the decedent had in mind at the time of the writi ~g
this matter.And even if·a Will were produced to statE
of the WillI that in itself would not be pertinent to the
All right,Your Honor.
It's not a question of parel
The Court is not required
MR.KELLER:
THE COURT:
THE COURT:
issue.
testimony.The parol testimony comes into action WhE n
and if we have the definitive terms of the deposit agrE ement;
that the estate plan,whatever it may be,is not pertinpnt
to explain its rulingl but we Will do so.The Court fee s
really was intended to be by Mrs.Novi.
that it is necessary here to establish what the relatior ship
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and if we have such an agreement produced and we fi d
that the agreement itself is subject to changel if we
find tha t the agreement itself does not fully cover the
intended situation,parol evidence may be produced a
Harrv Nov;42
that time.But at the present time parol evidence isn'
an issue at all because the estate plan is out and we
do not perceive that it is pertinent to the issue.
(Continued examination by Mr.Keller);
inter vivos gift,inasmuch as it is clear of record tha
to this point,from the standpoint of the competency
to be be'ginning to testify to rebut the existence of an
of this particular witness to testify,as I perceive hirr
Your Honor,I would obje tMR.McKAY:
relationship to your mother's home?
He lived in Mt.Washington.
By automobile it only takes ten minutes.
How close is that toyour mother's home?
Mr.Novi,I am going to question you about things that happened at
At that time where did your brother Joe live?
in early February of 1958.At that time,where did you live in
I lived at 1522 Berkshire.
and subsequent to the tim e of the eS,tablishment of this bank account
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he would be a direct beneficiary of the rebuttal of this
inter vivos gift.He 'therefore would be barred,we '
believe,from testifying from rebuttal of a gift,being
an heir of the estate or an heir at law of Emilia Novi
if this gift were to be stricken down.He would be a
E(arrv Novi 43
beneficiary,therefore~and stan,ds in a position adver e
to her as the donor of the gift and certainly in a positi n
adverse to the donee.But it is hi$position adverse
to the donor ~hat we are concerning with at this point end
are of the opinion that he is not competent to so testif;).
THE COURT:The·obj eet-ion is overrulec .
We feel that this witness is competent up to a certain
point.And we haven't reached that point yet.We will
overrule the objection.
Was that reasonably close to your mother's home?
Yes,it was.
Where did Paul live?
Paul lived on Highland Villa Drive,Castle Shannon.
How far W'"GlS that from your mother's home?
That was about a 15 minute drive.
How frequently did you and you r brothers visit with your mother?
Well,for myself I was there three or four times a week from the tin e
that she went into the apartment and also the time she lived at her
own home.
Q How about your brother,Joe?
A Joe,I don't know how many times he visited because I wasn't there
all the time,you know;;w hen we visited we .visited different times.
Q Do you know how frequently your brother Paul visited?
A paul was over there quite often.I'd say about maybe two times a we k.
Harry Novi 44
Q I think there's been testimony that your brother Joe lived with youF
mother up to a certain point.When w.ould that have been?'
Yes.
bank account down at the Mellon Bank?
Will you repeat the question again?
Was it in this period after 1958 that we are talking about?
The obj ection is sustaine
I obj ect to anything thatMR.McKAY:
THE COURT:
Mrs.Novi said.
He cannot testify as to what she said.
you got Gino's name on the bank book."And she said,"Yes.II
bank book then and I seen Gino's name on it and I says to her,"I 'seE
Mellon Bank and we deposited that money.And naturally,I seen the
a check for $5500.00.And I took her down the same day down to the
Well}whenever she sold her home I took care of all the paper work there.
Was your brother living at home with your'mother after 1958?
When did you first learn that your brother Gino's name was on the
When he got married.I don't remember the date when he moyed out.
I took up the real estate,whenever the deal was closed she was give 1
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MR.KELLER:Your Honor,I understanc
the 6hJe:dtion which has been raised,but we believe
that the Act of 1887 is inapplicable in this case for a
number of reasons.
THE COURT:It's not the Act of 1887
Harrv Novi
that is involved in this objectionl Mr.Keller.The Ac
of 1887 refers to the competency of this witness.We
,have ruled that this witness presently is 'competent.
That is not the nature of the objection.
45
MR.KELLER:
objectionl if I might ask?
THE COURT:
enlighten us on that subject.
MR.McKAY:
What is the nature of the
Perhaps counsel will
It's hearsay introduced to
show the truth or falsity of the statement that she mac e
to show her intent as far as this account is concerned
For this reason we will object.
THE COURT:
MR.KELLER:
It's hearsay.
If it please the Courtl we
believe the statement which we are asking about is
offered not for the purpos e of proving the truth of the
fact assertedl but to show the mental state and the
intention of the person who made the statement.We
bel ieve this is not he arsay and clearly fals within an
exception of the Hearsay Rule.After all,Your Hono J
the issue here is whether or not this woman gave a
presently intended gift in 1958 or immediately thereaf er
to this man.Certainly her statements at and subsequE nt
to that time as to what her view of that was are relev nt;
46
and since they represent statements as to her intentio
and state of mind,we think they are clearly under an
exception of the Hearsay Rule.
THE COURT:They are r'elevant if they
come to us in a proper manner.The Court has ruled
that it does not come to us in a proper manner.
we'd like to put on the record at this time an offer as
to testim'ony of this witness on this point.We would
offer to prove by the witness,the testimony of this w'ness,
If it pleas e the Court,the'MR.KELLER:
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that he had regular contact with his mother;that he
.was able to observe her conduct with regard to her
financial affairs and this bank account;that he had
on a number of occasions conversations with her
instituted by her in which she stated that it was her
intention that anything she had left over after she die
would go to her sons in equal shares.And this witnes
would testify that this continued to be her settled pur
and that she said this on numerous occasions during
the period 1958 to 1970,at the time when she was re
moved from her apartment and went to live with Mr.
Gino Novi.And we would further offer to show by the
testimony of this witness that at no time did Mrs.No i
ever indicate or say that she had given her money to
______-1I-.....:H~a::;r:.1"J?y Novi 47
Gino or that she preferred Gino in any way over the
other sons.
MR.McKAY:We certainly couldn't ObjEct
to what this particu~ar witness did not hear Mrs.Nov'
say or any statements that she did make relative to h r
intention or relative to her treatment of Gino or relat ve
to the establishment of this account.We would object
the record.As far as what Mr.Harry Novi did not
that due to hearsay,we had no opportunity to cross
hear his mother say or what she never said in his
The obj eetion is sustaine(;THE COURT:
exception noted.
were made',that we would just be placed at a distinct
to.Your Honor.for the reasons that we had stated bekoore,
presence,we wouldn!t have any objection to that part
disadvantage.if any,if this were to be permit,ted into
examine as to the conditions under which such staten ents
Yes,she did .
Mr.Novi,did your mother do her own banking?
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.Q Did she keep the bank books at her own home?
A Yes.
Q Where,?
A In a strong box.just like Gino said,in her bedroom.
Q Were theree»ccasions after 1958 when she went downtown to the Mellen
Harry Novi
Bank and withdrew money?
A Just on one occasion I went down with her and withdrew $1 1 000 to
deposit at the Western Pennsylvania National Bank for the convenien e
of having the money there when she needed it.
48
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Was that branch bank close to her horne?
Yesl it was.rd say it was about a ten minute walk for herl that's al .
Was your name on thatca.ccount?
Yes l it was.
Was it placed on there as a joint tenant with right of;amrvivorship
and not as a tenant in common?
Welll I don't understand that.I mean all I know is it was Emilia No'i
or Harry Novil and th!'lt's all I ever thought of itl because I wouldn't
withdraw none of that money.
(Stenographer marks Petitioner's Exhibits "B"and "C'I)•
I am referring to a bank book designated Petitioner's Exhibit "B"I
which is a bank bOOl{for a savings account number 2768 with the
Hilltop branch of W.P.N.B.in Pittsburghl and it lists as the owner~
Harry Novi or Emilia Novil 81 Climax Street,Pittsburgh,Pa.,
15210.This book further carries the title "transferred from old
book.II And the first entry is one dated January 22 1 19701 showing
the balance of $309.671 some interim transaetionsl and a final
withdrawal on July 161 1970 of $203.98.And across the book is
written the word "Closed.M.C~7-16-70".I show you this exhibit
and ask you if this is the bank book on the account opened by your
Harry Novi
mother on the occasion you have told us about?
A Yes,this is it.Wait a minute.There must be another one besides
this book here,becaus e we deposited that check in 19---let me think
here a minute.That slipped my mind.I don't know when we depositeli
that.
49
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We have already indicated this is a second book Mr.Novi.
Yes,that's a second book.
Did you clos e this account out?
No,I did not close that out.
Do you know whether your mother did?
I don't know that either.
We would also enter here on the -record---never mind,we've alreacty
done that.I show you Petitioner's Exhibit "e'l and ask you if you ha'e
ever seen what purports to be a withdrawal slip from Western Pennsyl-
vania Bank dated July 14,1970 in the amount of $203.98.
No,this is the first time I seen it right here.
And I ask you,does this carry a signa ture,a carbon copy signature
of your mother?
A I would say yes,that looks like her handwriting.
Q And the name there would be Emilia Novi?
A It's faded.I don't know whether she used a middle initial.As far
as I know she never used the middle initial.
Q Did you ever consider this money your money?
A Never.It was for her convenience,that's all.·
Harrv Novi 50
.
Q This was your mother's money at all times?
A Right.
Q And you never got any of it or claimed any?,
A Nothing.
Q You realized af the tim e thatyou had the right to withdraw money froln
this account?
to 1970?
thing,I could have s topped in there and got it.
A Oh,yes,I knew that.That's what it was for,if she got sick and
couldn't make it to the bank or pay a bill for a prescription or some-
Very well.
I will object to any questi<ns
THE COURT:
MR.McKAY:
time we are concerned with as far as the creation of tile
concerning any period other than 1958,the period of
joint account in question here,Your Honor.
her health.
Q I am not going to pursue this,Your Honor.
A Well,1958,my dad died in '58.She was all right.No problem with
Q What was the state of your mother's health during the period 1958
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Q Did you render any services or assistance to your mother during
this period of time?
A Yes.I would go over there,a lot of times she'd have trouble addres~ing
envelopes.She'd always get the wrong address on the envelope.All(
so she'd call me up,lId run over there and make the addresses out
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for her.And also I took her shopping a few times.And she liked to
go over to the cemetery to dad's grave.And I always took her over
there.I'd say maybe twice a month we used to go over there.My
wife used to complain,why is she going over there so often,but I sti 1
took her.
Were there any other things thatyou did for your mother during this
peri09 of time?
"
Yes.We painted--in fact,the four of us,that was when my brother
was living too --we used to always get together,no problems at all.
We used to paint,we painted the house a couple times and we also
painted the apartment where she moved.We all got together and neVE r
had any problems at all.And I don't.know why this ever had to come .
up here.
As a matter of fact,were there any problems among the boys during
this period of time?
Never.Not that I know of anyway.I never heard anybody complain
about anything.We got along swell.,
What were the circumstances of your mother's moving to Washington?
Well,she took ill there.She was getting forgetful,and one evening
the re she left the gas on.And one of the tenants in the apartment
called me and said,"You better get over here and check your mothe
because she's going to blow us all up."So I rushed over there and
people were down there,you know.They had the gas shut off.And
I asked her,"What's the matter,Mom?"And she says,"I just forg)t
51
Harry Novi 52
to turn the gas off."But it did smell.pretty strong there.'And sheIe
do that,she'd forget things.
Q Now how did this come about?Did you call your brothers together or
.how did you come to decide where she would go?
A After I got this notice that she couldn't take care of her~elf,I called
Gino up and I said,"We have to do something about Mom,'that she's
she was a resident in the home of Gino Novi.
Petitioner from establishing directly;namely,any
here.It is attempting to establish by collateral mean~
what the prior ruling of Your Honor precluded the
.
The objection is'sustained'
I will obj ect to this whole
THE COURT:
MR.McKAY:
excepti.on noted.
Did you ever have any notice that the fund had been transferred out 0
the bank,the Mellon Bank,and if so,when did you first learn of tha ?
for the reason that it is irrelevant to the issue involve j
1ine of questioning as it is apparently going,Your Hon)r,
mental or physical condition of the decedent at the time
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A Whenever I went down to withdraw $1,000 to deposit up to the Western
Pennsylvania Bank.
Q I don't think you understood my question.When did you first learn
that the money had been removed by your brother from the Mellon
Bank ?
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Just today.I didn't know he had taken it out.
He never told you he had taken the money out?
No.He just took it out.twas shocked when I heard this.
Did you have any knowledge at the time the funds were taken out of
the W.P.N.B.account?
I didn't until it was all done.He called me up and he told me that he
needed money to pay some bills,and he said,~'I closed the account
at the bank."And I said,"That's all right."There's nothing I could
do about it.
You say he said that he closed the account out?
Yeah,he closed the account out.
Did you have any conversation with Mr.Novi,your brother,from
1958 until the time your mother left to go down and live with him
concerning the ultimate distribution of the pro perty that your mother
would leave?
Wetl,.it wasn't necessary.It was understood between the four of us
that this money was to be used for her,like Gino said,the old age
and whatever was left that we were to share it and share'alike.We
all knew this.There was no reason to even bring it up.We all trustEd
one another.
53
MR.McKAY:I move that the las t answE r
be stricken as being non responsive.
MR.KELLER:Your Honor,I'd like to
follow that up with a further question.
--------..-----------
Harry Novi
THE COURT:First we will )r:lj!e .that
54
the answer is stricken as not responsive to tJ:1e question.
Now do you have a further question?
please?
MR.KELLER:
THE COURT:
Would you repeat the ques ion
There is no sense in repec ting
the question.We have ruled his answer is not responsive.
MR.KELLER:lid like to repeat the ques ion
and then have him give an answer which is responsive
THE COURT:All right.We'll try that.
(Stenographer reads back the last question):"Did you have any conversatic n
with Mr.Novi,your brother,from 1958 until the tim e your mother left to
go down and live with him concerning the ultimate distribution of the prope ty
that your mother would leave?"
A Yes.Whenever we went to visit Mom at the nursing home we talked
about the money.He said it was costing a lot of money and I says,
"Well,Gino,"I says,"When the money that Mom has runs out,we
all three will pitch in and pay whatever bills that she accumulates.11
And he agreed to that.And then he said,"If there's anything left,IJ
he said,"Weill share it.11 And that's exactly what he sam.
Q This was in November of 1970?
A Yes.
Q Do you know whe ther this was before or after he had cleaned out the
account in Mellon?
Harry Novi
A According to the date.he had cleaned it out in November.didn't he?
Q Do you know whether it was before or after that in November?
A I wouldn't know,no.
Q Did you have any further conversation with your brother regarding
55
the ultimate disposition of any money that would be left over at the ti ne
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of your mother's funeral?
At the time of my mother's funeral,he didn't talk to me.He talked
to Joe and he didn't say.no.
When was the first time that you knew that Gino was going to claim a 1
of the money left over that had belonged to your mother prior to her
death?
A telephone conversation about the second week of April,I talked to
him.That's one of the times I asked him what he intended doing aboLt
the Will.And he says that he was going to keep it all.He says."AftE r·
all,we took her in.We got stuck with her."That IS his exact words.
I said,"You got stuck with her?"
Now what were the circums tances of all the hoys at the time your
mother went down to live with him?
Well.Joe had just moved and he couldn't handle her.And myself,
my wife's mother was ill at the time too.I didn't have her living witt
us but she was running over there often.And so I told Gino that it
would be pretty tough for me to take her.I says,"If I was home mYf elf
I'd be glad to take her," I says,"But she's got to be with her all the dme.
Q Did Gino volunteer to tah:e her?
Harr Novi 56
A Yes,he did.
THE COURT:Mr.Keller,we are going
to interrupt here for a moment.It is lunch time.We
are going to recess until this afternoon at 2:15.The
Court has already scheduled a hearing for earlier in t e
afternoon and we intend to go through with that hearin
time that she was taken here to Washington and also about he r physic 1
the physical conditiorDof Mrs.Novi at and immediately prior to the
condition during the time she was here in Washington.Ther e has
Mr.Keller,were you through with the :witness on the
RECESS
afternoon.
So we will recess at this time unti12:15 P.M.this
Your Honor.But before I do,I intend to ask him some questions ab
stand?
MR.KELLER:No,sir.I have several more questions to ask him,
THE COURT:
(This same date,at 2:15 P.M.,the hearing reconvened):
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already been some questioning and the Court has made some rulings
on this earlier.We believe that this information is relevant and
germane because the basic issue here in this cas e,the efficacy
of a gift,hinges upon whether she intended a gift and whether there
was a delivery.And we have found a case,Cilvik Estate in 439 Pa.
Harry Novi 57
529,a 1970 case,in which this very issue came up and where the
Court cut off the time of its consideration of the delivery;they use
the language at the time of death or incapacity.We believe that her
physical conditionsis germane on the issue of intent,but primarily or
the issue of whether or not delivery occurred.The Court will recall
the evidence up to this point was that possession of the bank books ste yed
relevant on the issues before the Court.
HARRY NOVI IS RECALLED.
CONTINUED DIRECT EXAMINATION BY MR.KELLER:
in Mrs.Novi and that Mrs.Novi exclusively used the account until
Now you may recall your witness.
would you visit your mother?
acts which took place at the very end of her life and are very much
in getting into the issue of undue influence~arid also the issue of
confidential relationship because we believe that those influence the'
after she had come up here to Washington.Of course,we .are intere.ted
A About three times a week,four times sometimes.
Q Mr.Novi,between 1966 and 1970,the summer of 1970,how frequen ly
THE COURT:
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Q .What was her physical condition during this period and did it change
in any way?
A Well,her physical condition started to change---
MR.McKAY:Objection,Your Honor.
i 58
I would obj ect.He is asking for an opinion of a layma
as to physical condition,which he certainly isnlt
qualified to give.
THE COURT:The obj ection is overruLed;
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exception noted.The layman may give his impression
in,of course,layman language.That IS all we will ex ect.
Can I answer that?
Yes •.
I noticed in May that she was getting more forgetful than usual about
leaving the gas on and things in that res pect.
In what year was this?
1970.And also,I had a graduation card,my boy graduated in June,
that she was to sign.And she had trouble signing her name.In fact,
she signed it in Italian,NonnSl,which means grandmother in Italian.
Then the envelope,I tried to get her to write my son's name on it an
she couldn1t do it.I even had her practice on a piece of paper and sh
just couldn1t do it.And how she ever got to sign that card;I don't k ow.
But she made the word Nonmout on the card.In fact,I think we have
the card here.
Q Why was the decision made that your mother should not stay alone
by hers elf anymore?
A The phonecall I got from the tenant in the apartment where she was
living called'and says that you better do something about your mothe
because she's leaving the gas on and she's liable to cause an accide t
Harrv Novi
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here..E:-SDvwhen I called Gino up and told him about it that same day.
he came over and we decided then that we'd better,you ~now,get
her out of there.Gino agreed to take her after he heard why we
couldn't take her.
59
Now,Mr.No vi,was your mother willing to go under those circumst~nces?
She really didn't 'want to leave the apartment,no.She didn't want ~p
go but she had to.She was willing after we explained that the people
were complaining.
When next did you see her after she went up to Washington.Pa.?
I would say---this job I was working on,.by the.way,I was w~rking
seven days a week,I didn't have an opportunity to go up.That was alout
four weeks I worked like that.But I kept in constant touch by telepho[le.
And the last week of July,1970,I talked to Marie,that IS Gino's WifE,
and she said that she had a stroke and she lost her speech and she
lost the use of one arm.And the doctor said she would get it back-.
Did you go up to visit your mother shortly after that?
Yes,I did.
What did you find?
I found that she was always crying.She couldn!t talk,I couldnrt makE
it out and I don't think she at first recognized me until after she star'F'd
for awhile.
Q Can you tell us when this was?Was this at fuhe end of July or the fin t
of August or when?
A You mean that I went to visit her?
Harrv Novi
Q Yes ..
A This was,I'd say towards the end of August.That1s when I seen her,
but I kept in contact here between that time.
60
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When did you receive the message from Gino's wife that she had the
stroke?
I called her.She never even called to let us know this.
Do you know when the stroke occurred?
The exact date,no.But I know it was in the last week of July.
Thereafter.did your mother's condition improve or did it get worse,
as far as you could tell ?
As far as I could tell it wasn't getting any better except her arm,ShE
was able to use it.But she couldn't talk and I noticed a lot of times
lid go up to see her and everytime it seemed like it was harder for
her to recognize who it was.
Did she go into a hospital or nursing home at any time?
Yes.She went to the Washington Hospital for a'week.I don't know
the date.I can1t think of the date when she went.But she was in for
a week and then after awhile after she came out she was put in a
nursing home for a month.That was in the wintertime.It just slips
my mind what month it was.
Q Is the nursing home here in Washington?
A Yes,it was.And I don't know the name of it.
Q Did you visit her in the nursing home?
A Yes.I did.Everytime I went up I would go with Gino.I just went u D
Harry Novi
three times,by the waYI because she was only in there a month.
Q Except for the times when she was in the hospital and in the nursing
home,was she in Gino's home all the rest of that time?
A Yes.
61
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Yes.
Do you know whether she had any visitors other than members of the
family?
Yes,she had a friend of hers go up there.I can1teven think of her np.me.
But I know she had visitors up there.Rose knows the name of the
people that went up there.
Do you know whether they went on one or more occasions?
No,I don't.
But except for those visitors and you boys,she had no other visitors
while she was there at their home that you know of?
Right.Not that I know of.
When you saw her in their home,what part of the home was she in?
Did she have a room of her own?
She had a room of her own upstairs but she roamed around downstairs.
She was able to walk around.She didn't have to sit down.She could
get up and walk around.
Q Do you know why she was put in the hospital and later in the nursing
home?
A I understand that she was in the hospital because of she was passing
Harrv Nov;
blood in her urine.And she was in there for tests and that's why she
was only in there a week and she came back out.
Q Why did they put her in the nursing home?
A I unders tand it was getting a little bit too much for Marie and she
needed a little break,so they decided to put her in a nursing home fohn
62
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a month.She went down to Florida.
Was your mother born in Italy?
Yes.
Did she speak primarily Italian?
Very little English.Very little.
When you would converse with her~would you converse in English
or Italian?
Italian.
Could all of the boys understand and speak Ital\an?
They could speak it but Gino was the only one that could read and
write Italian.
And he was the oldest son~
He was the oldest son.
Cross examine.
T-farr:v Novi
CROSS EXAMINATION BY MR.'McKAY:
Q Mr.Novi,I believe you had testified before that your mother was abJP
to conduct her own banking affairs.
A Yes,up to when she got sick.
Q Yes.I'm talking about that.She was able to go to the bank and make a
63
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deposit .
Yes.
And she was able to determine when making a deposit that the correc
amount was being deposited in the deposit boo!??
I would have to say no to thatl because she would make this deposit,I::>ut
after she made it,when Pd go to visit her she'd bring the book out
and show me and ask me if it was right and I'd verify it.
This account you are talking about is primarily the account then up
at the W.P.N.B.'Hilltop.
Both.Bothaccounts .
Specifically then,the one,the W.P.N.B.account at Hilltop,did she
as
us e this account on a frequent basis/far as making deposits and
withdrawals?
A As far as deposits are conce med,I don't know where she'd get the
money to make deposits,but she used it to withdraw for her own use.
When she did I think it was in amounts about $50.00 at a time,just
enough to carry her over.
Q So she used that account for small withdrawals for her own personal
use and when that account would be depleted a deposit would be made
Harry Novi
from the other account from some other source.
A That's correct.
Q So that there would have been a more frequent number of transaction
on this Hilltop a~count than there would have been in the Mellon Bank
account.Is that correct?
,64
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I believe in your dfrect testimony you had acknowledged and concedeCi
that this Hilltqp account was,in fact,a convenience account for her.
Yes,it was.
Now on the Mellon Bank account,had your name,either prior to 1958
or between 1958 and 1970 ever been on that account as a joint owner?
No.
Had your brother Joseph's name ever been on that account?
Not that I know of.
!Ii~Q Had any name other than yo.ur mother's name and the name of your
lI:o11.~brother Gino ever been on that account toyour knowledge?
l-ll:g A Yes.I know it was on there after I made the deposit with the money'eu
oJ0(u got for the house.That's when I knew it was on there.~II.o Q I didn't make my question clear enough.Was there any other name.
other than Gino's on that account between 1958 and 1970?
A
Q
Outside of my dad's,he died in '58.No,no other name.
Is there any other account that was owned by your m other in Mellon
Bank or in any other bank or savings institution that she owned at the
time of her death?
l-Ja rrv Novi
No.
Did she own any real estate at the time of her death?
No.Not that I know of.
Relating to this conversation thatyou testified to that occurred betweEn
you and your brother Gino at the nursing home,when in point'of time
did that occur,the month and year,if you can re.member?
Now as far as lean recollect now,this was in January.I remember
65
it was snowing and I picked Gino up and we headed up towards the nUl sing
home and this is when he told me that itls costing a lot of money to k ep
her up there.And tha,t's when I mentioned to him that if they will keeb
her up there,that you go ahead and use that money.her money.And
when it was finished,that we would pitch in'and just continue paying
up there.
This conversation.to the best'of your recollection,occurred in Janu~ry.
that would have been January of 1971.
Right.
Was there anybody else present at the time of this conversation betwl:>en
you and Gino?
No.just Gino and I.
You say you had visited your mother when she was in Gino's home.
Was she being well cared for when she was in Gino's home?
A Well,I would say yes.As far as I could see.I couldn't see anything
out of order.
Q What were the living conditions for the rest of the Gino Novi family
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Rose Michalski
Is that in Pittsburgh?
.Pittsburgh 10.'
Are you married?
Yes,lam.
Where does your husband work?
Hertz Rent A Car at the Airport.
Do you·have children?
Three.
How long have you lived at your present address?
45 years.
Did you know Mrs.Novi?
Yes,all my life:
How old are you now?
51.
How close did you live to the apartment where she resided in Pittsbul"gh
last?
I'd say about a ten minute walk.The last one you're talking about?·
Yes.Now she lived in'one or two other apartments,didn't she,sincE
she sold her home in 1966?
That's right.
And were they also in the same area?
Yes,right across the street from me.
Now how close is your residence to the home on Climax Street that
she sold in 1966?
67
Right in the back yard.
As a matter of fact,did you us e part of her prop erty?
Ye's,I did.I rented her garage.
Has this been for a number of years?
Yes.
How close was your relationship with Mrs.Novi?,
Well,pretty fair.She was close to us.I mean she had my mother to
talk to in Italian and mys elf and I helped her ou t.
Did you have occasion to visit in her home and did she have occasion
to visit in your home?
That's right:
Has this been true over the past 12 years?
Yes.
How frequently would you see her to talk to her~either in her home
When she lived across the street from me?
Yes.
I'd say about three or four times a week.
You know all the members of her familYJ don't you?
YesJ I do.
68
Doyou remember when Joe moved away from the home property in 1 66?
He got married,I believeJ in '61.
Did he stay at home or did he move away then?
We 11,I think he moved away.
69-------II----------.......----1=I~'es_e_M4._efta_}s_k4:__------------,;."..---_1---
Q Did all of the sons visit her in her home?
,A Yes.,
Q Now I am going to take them one at a time.How frequently over this
past 10 or 12 years would Harry visit her in her home?
A Pretty often.He was the only one tliat came p:r;etty often.
this unwritten supposed estate plan that the Novi's had
again into a matter tha t you previously ruled on,namE ly,
and the treatment of Mr.and Mrs.Novi by their child en.
'"object to this line of questioning.I think we are gettin~
Your Honor,I am going t<MR.McKAY:
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I think all of this is irrelevant and immaterial to the
question?
is material and we will permit that.What's the last
condition of he r health and the various things that she [would
We have ru~ed and we wouldTHECOURT:
do or not do during a period of time,we believe that t ilat
still rule that the estate plan is immaterial.But thE:'
issue before the Court.
(Stenographer reads back the last question and answer).
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Q On an average,how fr~quently would he come to the house,
A I'd say about three times a week.
Q How about Joe,after he moved away from the house?
A He'd come,I'd say once a week.
Q How about Paul,up to the date of his death in 1968 or '67?
Rose Michalski 70
Yes.When she sold the home---
How about Gino?How often"would he come to visit?
about her fam ily ?
Not as often.I'd say about every three or four ,months.
The question was simply
Objectionl Your Honor.Tlhis
THE COURT:
MR•.McKAY:
of the family.
that become irrelevant.It is best to confine our anSWI rs
strictly to the questions that are asked.
I will repha:ase my question or state a new question.Did you know
whether Mrs.Novi had a bank account downtown?
about ro.sale of the home.And we thus get into remal ks
we are coming to the place where she is making remarks
whether she had heard talk about her family.And no~
we are getting intol I believe,the idea of the treatmer t
on as far as the condition of her healthp and once agai
isn't anything relating to the issue that you have ruled
Well,he would come two or three times tOOl to help cut the grass.
In conversation you would have with Mrs.Novi,-would you ever talk
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A Yes.
Q When did you find this out?
A '66.
Q And how did you happen to find this out?
A Because she said she was glad that she sold their housel that she w~s
Rose Michalski
goi~g to put this in Mellon's Bank.And when she would---if she ever
would pass away---
71
MR.McKAY:
Getting into--
THE COURT:
Objection,Your Honor.
Well,we will permit the
balance of the conversation with that res pect.
Would you please go ahead with the rest of what her conversation waf?
That she ,was glad that she sold their house,and she would put it all n
Mellon!s Bank.And then lateroOfl,if,you know,after the funeral was
paid, that all the three children alive and the four children that was
left with the fourth son would be taken care of.
Q And she said this to you at that time?
A Yes,she did.
Q Were there any other occasions when she talked toyou about the dis-
tribution of her things after she might die?
A Yes,two or three different times or a half dozen times.Becaus e sh
was fading down and she knew that.And she wanted that to be taken
care of.
Q What did she say on those occasions?
A That she wanted all of the sons equal,whatever was left.If it happened
to be a dollar apiece,it should be a dollar apiece,whatever was lef .
Q So as far as you could tell did she play any favorites among her sons?
A No,she did not.
Q Addressing ourselves to the point in time now in 1969 and '70,I wan
Rose Mi.chalski
to ask you whether you noted from your own observation any change in.
her physical and mental condition?
Yes,in,the las t few years ~
Tell us what you noticed.
Well ,h~r mind was slipping.Sherd call me over to pay this bill or
pay that bill.I took her to the dentist to have her teeth made and wenL
72
up to the bank a couple times'because she was wobbling.She'd forget.
You just had to remind her.
How about her physical condition?Did she have any trouble with blo(d
pressure or "anything?
Not that I know of,no.She walked to church every morning at 6:30.
And she never had a bit .of trouble walking or anything at all.
Now did her c'ondition get better or did it get worse as time went on?
,.As she moved away up on Warrington Avenue,the last place she moved,
is when she failed,forgetful more.
Would she call on you on those occasions ?
Yes.And then I would get in contact ,with Harry.
Did you feel that she was relying more on other people or less on ot er
people at that time?
A -She confided in me because we lived all our life across the street ani
I have a mother 83 also.
Q So she was relying rather heavily on you.
A That's right.
Q Di2d any serious conditions occur in the early part of 1970 which made
Rose Michalski
her situation dangerous?
A No.The only thing,like Harry said,about the gas .
.Q Tell us about that.
73
A Well,she'd put coffee on and shetd forget.You'd smell fumes,natur3.l1y,
so they got in contact with the dandlord and they had to do something
about it.
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Was that when she eventually was moved,to Washington?
That IS right.
Now did you visit her at all down in Washington when she was staying
down here?
No,I didntt'know where the place was at •
I think you said she spoke Italian.How about the boys?
They understood Italian,but they couldn't s peak it.Jus t Gino could
write it and read it.
Possibly would you describe yourself as her closest neighbor?
Yes,I do.
Do you know what income Mrs.Novi had?
She had her Social Security check.She paid her rent,little odds ane
ends with it.She watched every penny.She'd go a mile to save two
cents;letts put it that way.
Q Cross examine.
'chalsld
CROSS EXAMINATION BY MR.McKAY:
Q Now you say that Mrs.Novi discussed the account that she had in
Mellon Bank with you.Is that correct?
A Yes.
Q On.h6.wamany occasions did she discuss 'this account with you?
74
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A I'd say about a ~alf dozen times;after the hous e was sold she was so
glad it was sold and it went to Mellon's Bank.
Q Did she tell you whose name was on the account?
A .No~she did not.
Q It was your understanding of this account then that when she was talk ng
of it being distributed to the sons~this was based on the assumption
that she owned this account at the time of her death.Is that right?
A I just don't---repeat the question.
Q You thgught she owned the account at that time,is that right?
A That's right.That was hers.
Q .You didn't know how the account was titled?
A No.
Q You assumed it was her account.
A That's right.
Q When she told you that it was going---whatever she had left was goin
to go to her children,what you assumed was whatever she owned at
the time of her death she wanted to go to her children.
A That's right.Share and share alike.
Q Did she ever discuss a Will with you?
Rose Michalski
A No.
Q Did you know tha't she had the account in the Hilltop Office of,W.P.N.B.?
A Yes,I did,because I went up there with her.
Q Did you know how that account was titled?
A Well,for her own use that she could go there because she lived right
close.
75
Q Did you know that Harry's name was on that account?
A No,I didn't know.
Q Did she ever mention that account as far as ---
A No,we never got into problems like that.
Q Thank you,Mrs.Michalski.
MR;KELLER:We would call to the stand Mr.Joseph Novi.
JQSEPH,:NOV,I tlS CA LLED A ND SWORN."..
DIRECT EXAMINATION BY MR.KELLER:
Q Mr.Novi,you talk almost as fast as your brother Gino,so I want
you to be careful and slow down and we will take our time going thro gh
this.Your name is Joseph Novi?
A Correct.
Q How old are you?
A 52.
Q Where do you live?
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Joseph Novi 76
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Is that in Mount Washington?
Yes.
Of Pittsburgh?
Pittsburgh 11.
You are one of the sons of Emilia Novi?
Correct.
And both Gino and Harry would be brothers of yours.
Right.
How long did you stay at home and live with your mother?
I left in '61.All the time up until after dad died,and '61 is when I le t.
Your father died in '58.
Yes.I stayed there with me and my mother.
And after 1961 you married and moved into a home of your own.
Correct.
How close were you to your mother's home?
About that time there I was about four blocks or so down the street 01
the same street.It was 420 Climax.
Did you have occasion to go home and visit your mother regularly
after that?
A Oh,yeah.I s topped there often and made sure everything was going
all right after I left.I kept checking on her.All I had to do is walk
up in a couple minutes.
Q Were you ever present when any conversation in which Gino,your
brother,participated in which there was talk about the bank account
Joseoh Novi 77
down at the Mellon Bank on which his name appeared?
A Well,as far as the bank account like that,I didn't know his name
was on it at all until all this came up.Thatis the best of my knowledEe
as far as knowing anything about the bank account.And when he depo ited
that money in there,he let me know about it afterwards.Harry told me
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then.
.You mean after the home property was sold,that's when you found 0 .t
that Gino1s name was on the account?
Yes.
Did you ever have any conversations with Gino about who that accoun
was for or what use was to be made of that account?
and they canrt make it to the bank,somebody has to take care of it.
selves.Somebody had to have a name on it somewhere.To the best
As far as that account,that was there for convenience that if they
Your Honor,I move thatMR.McKAY:
needed money to,like my mother and dad always said,if we get sick
of my knowledge that's how it got on.
--
Somebody had to go down and get it.They couldn't go down by th.em-
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that last answer be stricken as non-responsive to the
question.It was did he have any conversations with
Gino about the use of the account.
THE COURT:Will you read the answer,
Mrs.Hammond?I'm not sure that I heard it.
(Stenographer reads back the last answer).
Joseoh Novi
THE COURT:Well,it's a little ramblin
78
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but we are going to permit it to stay on the record.
The objection is overruled.
Did you ever have any conversations with Gino,particularly in the
last year,about the distribution of the money in that account?
Yes.The last was at the cemetery the day of the burial,and he had
a book of mine,a Bibl~my Union gave me to lay on the casket.He
wanted me to keep it.That's when I asked him then,"What are you
going to do about the rest of the money and whatnot?"He said,"AftE r
all the bills are paid we'll get together on all of this,after the funer!Ll
~bill is taken care of and the bills paid."ii:I-!!!
Q Q Did he say anything then or at any other time about probating the Wil
~.
Ug and making distribution under a Will ?.,
:J:S A Well,hechad occasion once on the phone and I asked him then.He
ui0::I!didn1t get the bills from the funeral home or nothing like that.When
0::oII.~he gets the bill and gets everything paid off,that you know,weld go nto
I-0:::J8 what we talked about ...«~Q And is that what you are referring to,the probate of the Will and
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distribution under the Will ?
A Yes.
Q What was the condition of your mother during the last year that she
lived down in Pittsburgh?
A .The last year she lived in Pittsburgh she was slipping right along
as far as---of course,she was slipping down at Industry and then
Joseph Novi
from there she moved up to Warrington Avenue,Mt.Oliver,she wa~
slipping real bad there.She had a slight stroke there,which didnlt
affect her much,but made her more absent minded.
Q Where did this occur?
A This latter part Pm talking about at the last place of residence in
79
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Q Did you notice whether or not she was becoming more dependent upoh
you boys and on the neighbors?
A Well,she always wanted us around.If you want to call that being
depended on and this and that.The kids would take the children up
there,you Know.She always liked to see them.She wanted me to br ng
them up pretty often,w mch I did.I'd bring the children up maybe or ce
or twice a month.
Q During the three or four months just before she left the re and went
up to Washington,had she gotten to the point where she needed morE
help or could she still do everything for herself that she needed to?
A She couldn't do anything herself because she wanted to cook for me
and my children,she'd take a pot out of under the cabinet,put it
on the kitchen stove and take it off and put it in the sink and never
did get around to cooking anything.Just slipped around like that.
As far as going to the store,lId run down,you know,Pd drive dow
the store and get what she'd need while I was there.
Q You have heard the testimony here as to why she was moved from
her home in Pittsburgh to Washington,and if I asked you all those
Joseoh Novi 80
same questions,would you answer in the same manner that the othe
witness es have told us?
A Yeah,lId answer them.
Q Down,here)~in Washington did you have occasion to visit her?
A Yes.I came down with Harry..When we moved we brought down a
truck and moved the ice box and whatnot that Gino wanted down his pnce .
and then another time I was down there,we made an occasional visit
Incidentally,what happened to all the goods in her apartment?
All right.Mr.Novi,what was her condition when you came down to
any bearing on the issue that we ar e trying.
Your HonC?r,isn't this a
1 don't see where it has
The objection is sus tainec·
I will object to that,Your
THE COURT:
MR.KELLER:
THE COURT:
MR.McKAY:
legitimate question about assets owned by the deceden
exception noted.
Honor.We are once again getting into collateral mattE rs.
prior to her death and what may have happened to the ~?
Well--
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A She couldn It---she didn't recognize me as far as that,when I came
down that first time.And as far as the condition,she couldn't talk.
I tried to communicate with her like that,she always seemed like
she wanted to tell me something and lId try to give her ideas,talk
Joseph Novi
to her myself."Don't you feel good,"omsomething like that,try to
81
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get something,to shake her head or something,you know.But 1 couldn't
get through at all.
As best you can recall,when was this that you paid that first visit?
As far as'the dates,that w~s about a month after we moved her down there.
So that wou ld have been in the early part of August,would it?
-Yes.
Was that after she had had her stroke?1 say was your vis it after
she had had her stroke?
1 think she had her stroke---1 had her up my place one day.They hac
gone to a company picnic and my mother came up my place for that
one day,and that evening they picked her up and took her back down.
Do you know when that was?
Not as far as that picnic.Marie and her family and all went,Gino,
and they went to that picnic.They could tell you what day that was
specifically.
Did you pay any other vis its to her down there in Wash ington ?
I didn't know my way down here.1 made one or two with Harry.He
called me up,if 1 was available,I'd go down with him.
Q -Cross exami.ne.
______-fI---..lo.TULi,OS enh N ovi
CROSS EXAMINATION BY MR.McKAY:
Q As far-as the Mellon Bank account is concerned.,Mr.Novi.,it is you
82
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testimony that you didn't know that that existed until 1966.Is that co reet?
I knew it existed but I didn't know what was in there.,I mean total am unt
or nothing like that.t knew my dad always had a bank account.
And after 1966 you knew then that Gino's name was on this account
with your mother.,is that correct?
I've never seen it,but I don't think I ever went around looking at the
bank books.,even when they were alive.
Did you know this because Harry,your brother Harry told you this?
Well,it all came ou t,yes.
Did you.know how much was in the account in 1966?
No.,I didn't.
Did you know how much was in the account in 1967 or 1968?
No,I didn't know too much until the past year,as far as what was al
in it.It all came out after he drew it out down there.When I heard
he drew the money out of Mellon Bank,that's when it all came out
to me.
You didn't have any knowledge of this account then between the time
that you heard from Harry in 1966 that Gino's name was on it until
you discovered that the money had been tak~n out of the joint accou nt
by Gino.
A That's where I learned everything,when I found out that he had withl rew
everything out of Mellon Bank.,that's when it all came out in the wasn.
Joseph Novi
As far as 1966,I don't think I discussed that even then with Harry.
Q You don't?
A You just brought that point in yourself,that 1966.I didn't mention
that Harry told me then.I didn't know nothing about it until the past
year or so what all was in that bank account.
83
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You didn't know anything about this account until you found out that
it had been drawn out?
That's right.Or I would never have iet it be drawed out like it was.
Wasn't it your testimony on direct examination that based on your
conversations with Gino,you thought that this was an account for the
convenience of your mother?
Well,'like 1 told you,it was enough---- I knew they had a bank acco ~nt
and they gave me that as a convenience in case mother or dad got sicik
or whatnot.
You were a'sked,that was a specific question,you were asked abou t.
conversations that you had with your brother Gino about this account
Now this is important.I want you to tell me when you had these con-
versations with Gino.
You mean in the past year or so or what?
Well,whenever you had a conversation with Gino about this account.
You didn't find out about it until 1966.Right?
A Yeah.
Q All right.From 1966 on,how many conversations did you have with
Gino about the account?
.Tos enh Novi
A None as far as I know,as far as the account,until the pas t year whe!l
it was drawn out.
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All right.You didn't ha ve any conversations with Gino about the accolUnt.
As far as the account 'at the time,no.
So then any idea then that you had of the use of thes e monies for th~
convenience of your mother you got from somebody other than Gino.
Is that correct?
My mother talked about it.She didn't keep no secrets as far as that.
She to19 me,she mentioned too many times about different things,
share and share alike and everybody is going to have equal shares
and whatnotl and also brought them points in about the convenience 0
having that money down there with his name on it.
Did she use that word convenience?
Not in English.
Did she use it in Italian?
How doyou say it in Italian?She said it in Italian,let's put it that wa •
I don't know how to pronounce it in Italian.
Isn1t it so,Mr.Novi,that this word convenience has become known
to you since the course of the preparation for this hearing?
A No,I don't believe so.
Q Your mother used the word convenience,in Italian?
A Yeah.
Q What is that word in Italian?
A I don't know.I just tried to pronounce it and I don't know how to
Joseph Novi 85
pronounce it.
Q'Do you know how to spell it?
A No.
Q Now you also talked about some other conversations that you have had
with Gino about the probate of the Will.When did he tell you he was
,and that to take with meJ he mentioned it then that when the funeral
going to probate the Will ?
,That one phonecall,I think that's the only phonecall I had with him as
expenses are paid,weIll get everything together 'and have it all setth d.
As far as the cemetery,when he handed me that Biblefarasthat.
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Didn't he say,"We'll get together?"
He said,"Wait,weIll get together on this after the expenses are p'aic ."
Did he ever say the words to you,"We will probate the Will?"
He said it over the telephone,that one conversation.That's about the
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only one I talked with him on.And the next time I called up his wife
answered and he happened to be at work that Saturday afternoonJ I forget
what day it was.
,'
When was this conversation that you had with him when he said he WE s
going to probate the Will?
A Oh,I forget as far as the day:It was in the middle of the week.I
couldn't say what day.
Q Did you know the location of the Will or who had it?
A Repeat that.
Q Did you know the location of your motherls Will or who was in posse sion
Joseph Novi
of it?
A I knew she kept it in a little strong box and that;that's the only place
I knew it was at.As far as anything els e happening,I do not know.
Q I have no further questions.
86
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MR.KELLER:Just one or two questions.
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Would you see Gino periodically during the year?He was no stranger
to you,was he?
No.
You would see him?
Correct.
I am going back to 1958.Now I am going to ask you,did Gino at any
time after 1958 tell you that your mother had put him on the bank ac(ount
or that she had made a gift to him of thousands of dollars?
She never mentioned to me no time at all.I didn't even know it was en
until '66.
When was the first time you actually learned that Gino was going to
keep all the money for himself?
I can't recall.A couple weeks after,when Harry called up,hers
the one that told me about Gino's going to keep it.And I decide'd no
sense calling him anymore because he IS got his mind made up.
.Q This was after yo~r mother was buried?
Joseph Novi 87
A'Oh,yeah.
Q And that is the first you knew that he wasn1t going to distribute the
money?
A That's correct.Up to that time there I thought everything would b'e l'ke
we figured it would be,all trustworthy and that.
(Witness excused).
I have no further questions of this witness.
.THE COURT:
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Nothing further.
You are excused,sir.
If it please the Court,at this point we ha ve one other
possible ,bit0f::evidence which might be used,but ltd like to hold tha
off until a later time.We believe that there is sufficient evidence
before the Court now that the burden has passed to Mr.Novi and we
that a good and valid gift has occurred.
the dismissal of the Petitioner's Petition and the relief sought in the
in this case now to respond and to produce what evidence he may hav'"
would therefore respectfully request the Court to require the Respordent
.Your Honor,at this point we Id res pe'dtfully move for
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Petition for the following reasons:the Petitioner has come into Cou t,
Your Honor,with the burden of showing by clear and convincing
evidence that the assets in question,namely the proceeds of the
Mellon Bank account,belonged to the decedent at the time of the dea h,
at the time of her death.It is clear from the evidence adduced in his
own ('a~p that thpre is no evidence that these assets were owned bv t e
Joseph Novi 88
decedent at the time of her death.The secondary level of proof that
,he 'would have to attain here would be that the assets in this account
should be included in the decedent's estate.And in order to sustain
this burden,the Petitioner is required to show the invalidity of this
missed and the relief denied.
fairness that has arisen in connection with this transaction.
has occurred between a parent and child as it has in this case,we
not rule on the validity of the inter vivos gift at this point.We do not
The Court will refuse to dismiss the Petition.We wil
desires to close his case at this time,that is a matter for him to
preclude Pditioner from submitting additional evidence.If Petition r
It is our position that the Petitioner's own case establ shed
would request at this point that the Petitioner's Petition would be dis'
the prima facie validity of this inter Vivos gift.And for this reason,Iwe
even have a greater burden of proof and we have a presumption of
is not to be assumed.It has to be proven.And 'whe re this trarisac ti n
validity of this gift,as Your Honor knows,as established in cas e law,
from the Respondent,show the invalidity of this transfer.The in-
,transfer that has been established through their own testimony taken
THE COURT:
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decide.If he wishes to continue with his case and present additional
testimony,we will permit him to do so.After all testimony has beer
presented,the Court will properly rule on any issues that are prese ted
at that time.
MR.McKAY:I'm sorry,Your Honor.My motion was out of order then.
89
I had assumed that the Petitioner ffi d terminated his presentation of
his case.
THE COURT:We didn't understand it in that manner.The Petitionel
has requested that we rule that the Respondent produce his evidence
at this time.We will not so rule until all of:the Petitioner's case has
eventl so we will rest our case at this point.
been presented.
him to the witness stand for one further line of questioning.
Your Honor,yes,sir.And I don't want to rest becat.se
Before resting your case,Mr.Keller,is there any
Your Honorl we will rest our case in chief at this poir t.<
The Petitioner's Exhibits are received in evidence
and he's just arrived in the Courtroom and I had forgotten thi~1 reca 1
In addition to that,I would like to recall,as I inateated earlier,Gin<,
the admission of Petitioner's Exhibits "A "I "B"and "c"into the rec ~rd•
there is one other thing that I think we need to do.And I would move
Any additional testimony we may offer would be in rebuttal in any
and made part of the record.You may proceed.
necessity for getting these various exhibits in evidence?
THE COURT:
MR.KELLER:
MR.KELLER:
THE COURT:
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GINO NOVI IS RECALLED
EXAMINATION BY MR.KELLER:
Q Mr.Novi,I think you testified earlier that you withdrew the money
from the bank account in Pittsburgh in late November and deposited
it to an account down here in Washington.Is that correct?
little more interest on it.
the Dollar Savings,is that correct?
Q What bank is that located in?
Savings Bank in PittsbiJrgh onConcord Avenue.
Thereafter,you have;---
That is the main office of
The fund was withdrawn ir
THE COURT:
THE COURT:
THE COURT:
November of what year?
A Yes.
A On Fourth Avenue,Pittsburgh.
A No,not in Washington;in Pittsburgh.I put it where I could gain a
Q 1970.And I think he said it was deposited thereafter in the Dollar
A Dollar Savings Bank on Fourth Avenue in Pittsburgh.
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have you got a closer date than thereafter?
Q When did you deposit the money in that account?
A I think it was on November 3rd or November 2nd.I forget when.
Q Was it the saJ:l?e day tha t you took it out of the other bank?
A Yes.
, Q How much money did you deposit in the other account?
Gino Novi
A We put $10,000 in "E"Bonds,you know.And we left $4300.00 there
at the Mellon.
Do I understand you left $4300.00 at the Mellon Bank?
Yes.
Was that the exact amount left?
That's all we had at the time,yes.
And where is that money at the present time?
Still at the Mellon Bank,$4300.00.And we got $10,000 "E"Bonds
at the Dollar Savings because we got more interest on it,you know.
91
In the account at Mellon Bank,you just left it in the old account,did \Tou?
No.It was a new account.We changed the names over.
What names were on the new account?
My name and my wife's.
Do you have your passbook and the signature cards on that new accou 1t?
oil,yes.I don't know if we have them here or not.I didn't bring the 0
with me,I don't think..But we do have them.
Have you removed any money from that account since,so there is at
least $4300.00 in there at the pres ent time?
At the Mellon Bank in Pittsburgh.
How about the savings bonds at the Dollar Bank?You say those are
Series "E"Bonds?
A Yes.
Q And those are the Government Bonds?
A Thos e are Government Bonds.
~ino Novi
Q And where are those bonds?
A They are being held by the bank.
Q You have withdrawn no money from that account since then?
A No.My main purpose was to get some more interest on it because
I felt we needed it.
Q Can we stipulate that there wH.Lbe no use of this money until---
(inaudible conversation between Mr.McKay and Mr.Keller).
92
MR.KELLER:Your Honor.I believe Mr.McKay and I can stipulate
that these funds which were taken from the joint account in the Mello!l
Bank in early November of 1970 were deposited in the Fourth Avenm
Office of Dollar Bank in the form of $10,UOO worth of Series "E"Bords
and the balance of $4,281.90 was redeposited to a savings account in
the same branch of the Mellon Bank to the names of Gino and Marie Novi,
and I assume that's a joint account with right of survivorship;and
that the fund as presently situated will not be transferred or used in
any way by the Respondent until this matter is disposed of.
THE COURT:'
MR.McKAY:
The stipulation is approved by the Court.
We make that stipulation.Your Honor.of course.V[i11h
the understanding that there is no admission and no prejudice to the
Res pondentI s position in this case .
THE COURT:Very well.
MR.KELLER:At this time.Your Honor.we are willing to close oUI
case in chief.That's all,Mr.Novi.If it would be of any assistan<e
to the Court,it seems to me that at this point we have produced
Gino Novi
certain evidence which the Court might consider to establis.h some of
the matters here in dis pute.First of all,it seems to me"that we hav
93
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on the record at the present time as an exhibit a passbook which shov s
an account of uncertain ownership and with uncertain prerogatives
for the owners;such that further ex.planation is definitely required ar,d
that a prima facie gift is certainly not made out 1:>y this naked passbo ~k
which does nIt even carry the names joint tenant or right ofsurviv'ors rtip
.or anything else.
Secondly,I think we have produced---I think the resul
of that is,incidentally,that presumptively there is no gift;and .that
.t!ie burden at that point,if nothing els e were said,shifts to the
Respondent here to prove a good and valid gift.Secondly,we have ir
the evidence here statements by the Respondent himself at various
tim'es somewhat contradictory,but on one or more occasions flat
statements that it was understood that the account and the arrangemen.t
was for th.e benefit of the decedent,of Mrs.Novi.We have his sta te-
ment that he had no activity or participation in the withdrawals or
the deposit in the account until after Mrs.Novi had gone down there 0
live with him;and that,in fact,he never made any deposit to the
account.We have his admission that the passbook was always in her
possession,at least until the time when she was down at his place,
at which point there is evidence that she may'well have been in a
situation Wlere a confidential relatipnship existed,which in turn
imposes an additional burden on the Respondent.
94
And I would offer to the Court a case I just read yesteirday
which has jus t come down.A nd it's called Young vs.Kaye.A nd it
contains one of the strongest statements of the responsibility of a pe son
where a confidential relationship exists that I haye ever seen.Justi<e
Rober.ts wrote the Opinion.It's a 1971 case found in 443 Fa.335.
THE COURT:
MR.KELLER:
THE COURT:
MR.KELLER:
It has to do with confidential relationship.
Yes~sir.
And the matter of purchasing stock of a corporation.
Yes,sir.The Court here makes the burden very heavy.
In that case they had a man who was of sound mind,but he was an
octogenarian.He had no apparent knowledge of the intricacies of
the tax laws,no independent advice.And Young often signed without
ques tion documents for him.And the Court found this was enough to
create a confidential relationship and imposed a much heavier burder
on the Res pondent there.
(At the direction of the Court,off-the-record discussion was not
recorded by the stenographer).
MR.McKAY:I do wish to repeat it,YGlJur Honor~on the·same basi
on the ground that I have stated.
THE COURT::"And the Court again will refuse the motion and we wil
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require now since the Petitioner has completed puttirgArirs case,we
will require the Respondent to place his case in evidence if he so desires.
----------,,---------------------------------_._-
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GINO NOVI IS RECALLED.
DIRECT EXAMINATION BY MR.McKAY:
Q You are Gino Novi,the Respondent in this case?
A Yes.
Q You are still under oath,Mr.Novi.I would request that this card
«be marked as .fu spondent's Exhibit Number l.
z~.J (Stenographer marks Res pondentts Exhibit Number 1).>-UlZ~Q Mr.Novi,you testified on examination by counsel for the Petitioner
io~that in February of 1958 you and your mother,Mrs.Emilia Novi,
zx~opened a savings account Number 13182 in the Mellon National Bank~
~and Trust Company in Pittsburgh.Is that correct?..Ul
Q A That's correct..J«i3g Q At that time you opened the account were you required to sign any
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II:~A The cards,we had to sign the cards for our signatures.She did like'ise.
II:oL~Q I will show you,Mr.Novi,what we marked as Respondent's Exhibit..II::J8 Number 1,and ask you if you are able to identify that?
.I«~A Yeah.That's her signature and my signa ture.
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Q Is this the card you testified that you were required to sign at the tin e
you opened the account?
.A That's correct.
Q Where was that card signed?Where were you when you signed it?
A Right at the bank.My mother and I both were at the bank and we sigred
there at the same time.
Gino Novi
Did you read the card at the time that you signed it?
Oh,yes.It was explained to her too.
It was explained to her?
Yes.
By whom was it explained?
The man in charge.And then I explained it to her in Italian also,jus
in case.
96
MR.KELLER:'Just a'moment.The expression
it was explained to her by the manager is a little too
vague.It doesn't quite rise to the level of hearsay,.
but it certainly is a conclusion and we would object
to it for that reason.
THE COURT:The objection is overrulec .
You may cross examine him on that feature later.
All right.I'm more interested in what you told your mother about
this account.
I explained it to her in Italian,if anything would happen to her,I'd bE
in charge of it.She said,"Good.Who else can I depend on?"This
is the words she told me.E che poso dipendir_e,;,.In other words,
it means who'can I depend on.
Q If we want that in the record I think weld better spell that.
A I guess that's the way you spell it.
Q What was you r understanding of your rights of ownership concern Lng
this account during the time that it.'was in existence?
Gino Novi
A That it was my money at the time and I could do anything I wanted
with it.This is the understanding I had when wf!signed it,you know.
Q You did understand that none of this was your money that you would ~ut
in?
A No,I knew I had nothing in there.
97
Q Did you ever have any occasion during the period of time that the ,~ccount
was in existence to need any of this money that was in the account?
A No.It might have been a thought once or twice,but I figured if anyth ng
should happen,where is the money going to come from to take care cf
her?This is the idea we had in mind all along.This is what I was af aid
of,running out;so was she.This could have gone on for quite some
time.
Q At the time in November of 1970 that you closed the account,I would
like you to describe to the Court just how you did this,just what
procedu re you followed to do this.
A Well,we'd have gone in sooner to draw it out but my mother says
use the money when she was at our place and she was able to speak
her mind.And we did go down and the bank advised us to not withdraN
it because there was interest coming and we could lose all that.And
I was more or less interested in building this account up and I starte ~
looking around for ways to build this account up.And we came acros ~
this six percent down the Dollar Savings.
Q So you then waited until November to make the withdrawal of the fun s.
A Yes.
Gino Novi
Q When was this in point of time now that your mother said to use the
money?
98
A About the second week she was with us.About the second or third WE ek.
Right about that time.
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Tell us again when it was that she came to live with you.
July 2nd or 3rd.I don't remember.The third,I think it was.
Of the year 1970?
Yes.
Now it has been testified that the passbook on this account remained
continuously in the possession of Mrs.Novi.Was there any period 0
tim e during 1958 and the time that she came to live with you that thi:;
passbook was in your possession?
I had it in my hands but I always had her with m~,you know,to mak
the withdrawal so we could put it up in the Hilltop Branch,which is
a branch of the Western Reserve.
Western Pennsylvania Bank.When your mother made her trip to
Italy,did she do anything different with this passbook than she norm lly
did?
A No.She never even mentioned it,you know.
Q Now to your knowledge,at the time of your mother's death,did she
maintain any other account in Mellon Bank?.
A None that I know of.
Q Did she maintain any other account in any other bank at the time of
her death?
A No,no other bank;no other account.
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Q You may cross examine.
CROSS EXAMINATION BY MR.KELLER:.
Q Did your m other read the signature card?
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her in Italian.She knew what it was aU about.
You say it was explained to her by one of the bankers?
It's hard to say.It was one of the bankers down there.
Do you know his name?
Oh,yes.I can't say;that's quite some time ago.
Do you know whether he was a lawyer?
I couldn'tsay that either.
Do you remember what he said to her specifically?
Yes.He explained to Mrs.~ovi,I remember words to this effect,
iiiII::I!!that if anything shou ld happen to you ----II::oL~Q Just a moment.I don't want the words to the effect.I want to know
~:J8 if---I know it's been a long time,but this is pretty important.Do yo ~
..I0(oiL remember exactly what he said to her?...o
A I can't say the exact words,no,I don't.
Q How long did he talk to her?
A Gee,five or ten minutes or so we were waiting at the desk there.
Q When he actually started talking to her how long did he talk,a COUplE
minutes?
A I guess it could be five,ten minutes,something in that order.
nino Novi
Q Did he talk to her in Italian?
A No.It was in English.
Q He s poke English to her?
A Yes,becaus e I remember translating it for him.
100
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And you translated?
Yes.
So that her understanding of what this card says depended upon the
words that you translated and told her.
Yes,but she understood enough about English to jive the two togethe
and she could understand what he had to say too.She couldn't speak
it very well but she could understand quite a bit.
If that was true,why did you ha ve to bother translating it for her?
For the simple reason~just in case she wasn't sure.I asked her if
she understood what he meant.She said,"Yes."
Did you explain to her---strike that for a moment.I think you have
told us thatyou believed that at that point you had ownership in this
money and thatyou could spend it yourself?
This is what she told me,if I ever had the need for it and if she neec ed
it,we could do the same.
Did you tell her in effect that this would be giving all of her money t
"
you or making all of her money available toyou right at that moment
Did you tell her that?
A I don't remember saying that.
Q Did you tell her that this---strike that.This was her primary asset
Gino Novi
wasn't it,the bank account?
A Ye~,sir.
Q Now you knew that she had a Will that left everything equally to the
boys.
A We all knew this.
101
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Did you tell her that this bank account was in effect vetoing her Will
and was giving everything to you instead of carrying out the plan of
her Will?
These are things I never thought of.I'm not a lawyer.This was just
passing,this is one of these things that came up and that's it.
She never did talk with a lawyer about this at the time or have it
explained to her by somebody representing her,did she?
Not outside of this man at the bank;that's all I know of.
Do you know whether she talked over with her other boys this move
before she did it ?
I really don't know.
Do you know whether she told them that she was taking all of her m ney
and putting it in a joint account which was yours thereafter?Do you
know whether she did this?
A There was no way of my telling.I don't know.I hadn't been home--
Q Did you tell the boys,the other boys that she had put all of her monE y
in an account which was now yours or that you had ownership of?
A Well,they knew it;they had access to the bank book the same as I d d.
They knew it was on my name and hers.
Gino Novi
Q What you are saying is tha t you didn1t tell then:that,that you figured
they would look in the bank book and see iit.Is that right?
A Well,they were so interested,I thought they would.I mean what the
depended on was the fact that there was a Will there.
102
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I think you said,as I understood your testimony,and itls a little
hard to hear from down here,that you understood that this account
was,after it had been set up,that it was in such form that you were
to have charge of it in case she ever needed any help with the accour .
Is that much right?
Well,to tend to her needs,yes.
In other words,if she needed any help in drawing checks or making
withdrawals or if she were out of the country or incapacitated that
you could help her and do her banking for her.
I could take care of thes e things for her,yes.
Do I further understand that you thought this relati(,:mship was that--
strike that.Do I further understand that it was you r intention and
developed and your practice as it went along not to use this money
because you wanted to save it for the eventuality that she might need
it.Is that right?
A That1s exactly right.And that was her fear too,not having enough.
. Q Did you feel that after she was gone and had used as much of it as
she needed that at that point it would then go to you?
A That's the understanding we had from the start when we signed this
card here at the bank.
Gino Novi
Q The money was to be there and available for her to us e during her
lifetime and at her death it was to go to you?
.
A That's the understanding I had from the beginning.
Q All right.What did you use the $5,000 for that·you took out In Augus
of 1970?
A Well,we used it to pay her death benefits and things like that.We
103
used it for her funeral expenses and soforth.It ran.about 35,$3600.O.
Q Did you put that in you r personal account?
A Yes.We kept it there for in cas e of emergency.
Q What account did you put that in?
A Up in at the--formerly the Brookline Bank on Route 19 in Washington.
That was our checking account.
Q And it was that money that you used to pay the hospital bill and the
nursing home bill and the doctor bill or funeral bill ?
A Yes.
have
Q And you/got all those bills,doyou?
A I could pres-ent them if we have to.
Q Is there any of that money left in that account?
A Yes,there IS some left.
Q I presume that she did have Medicare;and did she have the Golden
Age Blue Cross Policy too?
A Not the Golden Age.She
Q She just had her Medicare and Medicaid.
A Yes.
Gino Novi
Q And they helped with the bills at both the hospital~doctor and the
nurs ing home .
104
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They certainly did.
About how much money of that $5,000 do you feel is still left ?
Qh,I don't know.About $1200.00 I guess,13~maybe 15.
Mr.Novi,did you think it at all peculiar or unusual that having livec
down in Pittsburgh for all thoseyears that as soon as she came up to
Washington that she would say to you~well,the money is there~you
might as well go ahead and use it and urge you to withdraw money?
At this particular time,like I said before,my boys were sleeping
on the floor,I had no room.My brothers had plenty of room;my brJther
Harry had room for her.He called me from Washington to take her,
because he didn't want her.When she saw my boy sleeping on the
floor and we gave her my boy's room,she started to cry about it.
It happened so often.I said I don't have the money to spend $50U.00
for a sofa or sleeping beg.I talked to Harry----
Is that just the way it happened,that she saw your children sleeping
on the floor and she felt sorry for you and she said,"Take $5,000.aD?"
She didn't say,"Take $5,000.00."She said,"Use the money.The
money is there,"she said."Just don't put me away.I don't want
to be put away."This is the thing she was fighting.
Q Did you~in fact,spend any of the $5,000 on your property?
A No.We spent $100.au or so for expenses because it was my money.
I felt we could us e a little bit of it for a few different things.I didn'
Gino Novi
feel that I shouldn't.There came a time I needed it and this was the
time.
Q I think you testified in response to a question by Mr.McKay about th
times you rni.ght have had the bank book in your possession that,for
105
example,the time they put the money up in the Hilltop Bank that you ad
the bank book at that time.Is that correct?
At which,the old account or the new account?
The old account.
The old account?Well,when we'd go down to the bankl naturally we'd
have to ha ve the bank book.
Mr.Novi,isn't it a fact that Harry was with your mother when the
$1,000 was removed and deposited in the Hilltop Branch of Western P'_'i~:\
Pennsylvania National Bank and you weren't even there?
No,but how many times did that happen?She didn't only withdraw
once.I don It know how many times she withdrew in order to keep it
going up there.
As a matter of fact,she only has five withdrawals in that whole acco nt,
isn't that true?
Qh,1 don't know exactly how many it is.My wife went down with her
a couple times to'withdraw.
You count them for mel Mr.Novi.How many withdrawals?
You're talking about the old book.
From 1958 until 19701 how many withdrawals by number were there
from that account?
Gino Novi
A You mentioned the new account.All right,there's one for $1,000;
one for $500.00.This is times when either my wife or Harry went
down with her to withdraw from this account to put in that account at
the Hilltop Bank.
106
Q Mr.Novi,the Hilltop Bank account wasn't even open until 1968,was it?
A I don't know if it was or not.
Q The deposit on April 26 of 1968 for $1,000 is the only one of these
withdrawals that could have been deposited to that account.
A I don't know what she was doing with the other deposit because wherE
she put it,I don't know.I assume that's where it went.Where she
put it,I don't know.
Q No further questions,Your Honor.
MR.McKAY:
Honor.
THE COURT:
No further questions.The Respondent rests,Your
Mr.McKay,you have marked your withdrawal card
or agreement card there as an exhibit.Do you wish to offer that
in evidence?
MR.McKAY:Yes,I do at this time.I would offer Respondent's
Exhibit Number 1 into evidence.
THE COURT:Respondent's Exhibit Number 1 will be received in
evidence and made part of the record.
MR.McKAY:Your Honor,I have had a request from Mellon Bank
that if it would meet with the approval of the Court,that the photosta ic
copy of both sides,of cour se,of the Respondent's Exhibit Number 1
Gino Novi 107
be inserted into this record so that the original card could be returnEd
to the 'permanent records of the bank,inasmuch .as this IS the origina I
card.
THE COURT:We will permit the card to be returned to the bank
after we have made proper photostats o~both sides of the card arid
substituted them for the card as this exhibit..
photostat be made for Mr.McKay and mys elf?
.~
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Your Honor,could we ask that extra copies of the
~gain?
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I would like to ask Mr.Novi a question if he will come to
t·the stand.
iiiI-~a...c(uo;:)~GINO NOVI IS RECALLED.
~N
EXAMINATION BY THE COU RT:
the passbook that is in evidence here shows four or five different
Mr.Novi,I understood you to state that you have made certain with-
drawals for your own use because you felt t~at this,account was yours
Now the bank book that we have,to do whatever you wished with it•
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withdrawals there.Are those withdrawals any of the ones that were
made by you for your own use?
A No.The only one I withdrew was the $5,000 when she came with us.
Q The only one you withdrew was the $5,000 when she cam-e with you?
A Yes.That's when I started to need it.
Gino Novi
Q Prior to that we have a withdrawal of $1,000 in April of 1968.That's
the one that she used to start the other account at Hilltop.
A Either Harry or someone went down with her.That was my wife bad
there that went down with her.
Q We have~pris>r to that,one in 1968 and three in 1967,or rather two
108
in '67.Specifically,in May~'67 there was a withdrawal of $500.00,
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>-UIZ~both of thos e withdrawals made by Mrs.Novi,that is your mother?
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z~A It could have been.This I donjt know for sure,see.
zx~Q You know that you didn't make them?
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Q Q And then we hadthe one in 1968 in March of $100.00.And then that
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:I:5 withdrawal of $100.00,you didn't make that one?
ui~A I didn't withdraw that.a::oa.~Q As far as you know,that would be someone that WqS with your mothe'"
I-.a:::J8 or her alone ....c(~A It could be or she called my wife up to go with her or Harry could have...o
gone down,I know a couple times to withdraw as she needed ·it.
Q Now the passbook was in the possession of your mother at all times~
is that correct?
A Yes.
Q Where did she keep it?
A In a little box in he r bedroom~you know.
Gino Novi 1;-09
Q Now we spoke of the $5.000 withdrawal in 1970..I believe August.W at
was that for?
A That was we had to build on to the house.
Q You took that $5.000 and placed it in an account in another bank so th~t
you could write checks?
A Yes.
Q That is the account that you started in the Brookline Bank on Route
19.
A That's correct.
Q Then on November 2.1970 is when the complete balance in the passblook
was withdrawn~l,that is $14,281.90-.Is that correct?
A Yes.
Q Now was your mother with you at the time of that withdrawal?
A No,she wasn't with us on that one there.
Q How did you get the passbook?
A Well,we had the passbook with us when she moved with us;naturall••
we had it.
Q Yes,but your mother kept the passbook.
A This is while she was living alone.Thatts when she had the passboo .
When she came to us,then everything was turned over to us.
Q When she came to you and lived with you,did she have a box or
something of thatnature in her room where she kept her possession
and whatnot?
A Yes.
Gino Novi
Q Is that where the book was kept?
A Yes.
110
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Q Now is that where you got the book in order to make this final withdr[awal
of $14,000 ?
A No.This is whenever she told us to use the money.And as far as
the book is concerned,it was in the house there and she told us to
get it.She didn't say to draw it out.It was understood at the time.
Q Where did you get the book at that time when you made the $14,000 w'th..
drawal?
A It was in our house there.
Q Was it in her box in her room?
A No.The understanding whenever she told us to use this money,she
said,"I have the mon~y"get these kids---do something."She was
happy with the idea of usigoing to build a room for her,which we ne er
got around to doing.We decided on the sofa bed instead.
particular
Q We still would like to know where the passbook'was at that/time and
how you secured possession df it.
A She had it in our hous e.She had it in her hand.
Q And what did she do with it?
A She said,I'Here,I have the money.So why don't you,you know,go
out and spend it.Go and buy a sofa bed for the kids.II I told her I
didnIt have the money.I said,"Morn"I donIt have the money for thi~."
Q Would it take $14,000 to buy a sofa bed?
A No,certainly not.Then I felt it was my money too.And the main idea
Gino Novi
,that I had therel that like the doctor said,this could go em for years
.111
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and I was thinking what I coulddo to increase thatl whe~the bank ga\e
me the idea not to withdraw it at the time l back in August or April 01
so because due to tl:le fact they were giving interestl there must be
something better than that..and we'll see if we can build it·up.Beca se
there's no income coming in and'I'm getting older.I thought this wo ld
be a better chance of building it up.
So that is when you decided to withdraw the full balance"in the bank.
Yes.And since they told me you could do this down at the bank.
Yes l but did your mother specifically tell you to get the book from her
box in her room and go to the bank and get the moriey?
NOI she didn't exactly say that.
What did she say?
She saYSI "Here's the money.Get what you need."
Did she at that time give you the passbook?
Yes.She had it in her hands.
She had it in her hands and turned it over to you?
She laid it dow nl that I s all.
And you took the passbook then.
Yes.It was the understanding I had right along.
Mr.Novi,from the time of the inception of this account in 1958 to t e
time that your mother made the statement you speak of and placed th
bank book where you could take possession of itl had you ever had
possession of this passbook?
Gino Novi
A Nq not as long as she was living alone.I could have had it any
112
time I wanted to take any money out,you know.That's the understanc'ng
we had.But 1 repeat}I had no use for it.My idea,I knew I was
going to have to take care of her in her old age.I knew sooner or lat pr
I was going to get it.My brothers frankly told me they didn't want to
bother.This is what convinced me.I knew we had her and this.was IT y
baby.
Q I had understood you to say in your examination prior to this time the t
you had made some small expenditures of your own out of this fund.
So I was mistaken then in that concept.You didn't take any of the
money out of the bank with this passbook that we have clear up until
the final withdrawal?
A I took that $5,000.00 out.
Q Yes.Outside of the $5,000.00.Well now,wasthe$5JOOO.00thatyo~
were speaking of when you say you made certain expenditures for yourself?
A I had a wedding;my daughter was getting married.
Q You used out of that $5,000.00.So you took the $5.000.00 out of the
main deposit and you started this deposit in the Brookline Bank with
a checking account where you could write checks.And that is where
you wrote the checks for your various needs.
A Yes.
Q But you had never taken any of the money out of the bank using this
passbook that we have here?
A Not until the end,until the $5,000.
Gino Novi
Q The $5 1 000 and then the final withdrawal.
A And my mother knew about this.
Q Your m other knew about it?
A Yes.She was so happy we took her inl she wanted to show some
113
compassion.I think that was all that might have influenced her,I do It
know.
Q Your mother knew about your finai withdrawal of the $14 I 000.00 that
you closed the account out?
A We never said anything about closing the account.She said,"Here it is.'1
Then she was off and onl you know.And the under:standing was from
the beginning it was ours,you know.
Q So you hadn't informed her about that.
A 'No.Due to the fact,like I say,from the beginningl it was the under
standing.
Q And your idea was to gain the maximum possible benefit from the
interest that might accrue on the fund.
A That's exactly what I had in mind,believe me.
Q So you left $4281.90 in the Mellon Bank,but you changed that over
to another account rather than leaving it in this account Number 131 2,
and you put that account in yours and your wife's name.
A That's correct.
Q Was that a checking or savings account?
A Savings account.
Q And then you transferred $10,000 remaining to the Dollar Savings B nk
-
Gino Novi
so that:;yQ;u would get~more interes t out of it.
A That's exactly right.
Q Do you have a safety deposit boi}{at the Dollar Savings Bank?
A N01 I don't.
Q You state that you .had purchased "E"Bonds so that you would get
more interest and that they were kept by the bank.Now you mean
~z~that the bank is holding those for you rather than you keeping them
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0..
ie A Yes.
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i~Q Is that what you are referring to?
3:
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J:"5 A Yes,that's correct.
114
iii~Q Welll you are probably confusing certificates of deposit with the "E"
Ito~Bonds.The"E"Bonds are bonds issued by the United States TreasUl y
l-ll::>o to draw certain interest.And certificates of deposit are the certific atesu
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~issued by the bank itself.And of cou rsel the depositor keeps thos e...o
certificates.Perhaps what you did was bought certificates of deposi
of the Dollar Bank and you took those certificates home.Do you feel
that that is probably whatyou did?
A That is probably it.They were $5,000 apiece.
Q Rather than "E"Bonds of United States Treasury.Seel your "E"Bm ds,
that's the security itself.You aren't issued a certificate for it.The
Gino Novi
"E"bond speaks for itself.You bring it to the bank and you can ge
115
your money onit.The certificates of deposit.'you bring your certificates
to the bank and you get your interest on it at the proper time and the
your principal at maturify.You probably got certificates of deposit
from the bank.
A My wife is back there.She says they're certificates.I'm not sure,
really.
Q That's a minor item.I wanted to clear up this other item about your
spending certain funds at times you spoke of and I have that clear in
my mind now thatyou did that.from the $5,000 that was transferred
to the other bank and a checking account where you could write chec1 s.
That's all the questions I have of Mr.Novi.Were there any other
questions by counsel while we have him here at this time?
MR.KELLER:Your Honor.lid like to establish definitely what the
form of the $10,000.00 is and where it is held.And I assume that wi 1
be subject to the stipulation which we made ..But I think we should kn w
definitely and I will ask Mr.McKay if he will verify it by letter to
the Court and to me.so indicating.
THE COURT:I rather think that those are certificates of deposit at
the Dollar Bank,rather than "E"Bonds.
MR.McKAY:I think so.Your Honor•.especially in view of the amo nt
that he mentioned.But I will comply with that request if you wish.
THE COURT:All right.You are excused,sir.Thank you.That
will close our testimony.Do counsel wish to file a memorandum of
116
the law with the Court or to be heard in oral argument in this matter.
MH.KELLER:I 'would prefer to file a brief,Your Honor.·
MR.McKAY:I would also,Your Honor.
THE COURT:You may both do so.
same some time after that.We will adjourn.
the above cause is hereby approved and directed to be filed.
(Proc eedings Closed).
We will expe~t briefs in 20 days.after the testimony
I am satisfied to have oral argument too,Your Honor
the foregoing record of the proceedings upon the hearing 0
I hereby certify that the proceedings and evidence are con-
is transcribed·and then we will fix oral argument if we contemplate
.but I think we ought to ria ve a brief first.
***************************
tained fully and accurately in the notes taken by me on the hearing of the
Transcript completed -October 1;3,1971
above cause,and that this copy is a correct transcript of the same.
MR.KELLER:
THE COURT:
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Date
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PETITION
IN RE:
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EAST BEAU BUILDING
68-70 EAST BEAU STREET~~Hr
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COURT OF COMMON PLEAS OF
WASHINGTON COUNTY,PENNA.
Orphans I Court Division
No.of 1971
1n3-7~-759
ESTATE OF EMILIA NOVI,,
Deceased,
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PEACOCK,KELLER,YOHE &DAY
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COURT OF COMMON PLEAS OF WASHINGTON COUNTY
ORPHANSt COURT DIVISION
i,)J,
IN RE:
ESTATE OF EMILIA NOVI"
Deceased
(
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TO:
o
PRAECIPE FOR APPEARANCE
BOB A.FRANKS,PROTHONOTARY:
Enter our appearance for Harry Novi and Joseph Novi,Petitioner
•
in the above entitled case.
Date:#t~1971
PETITION
The Petitioners,by their attorneys,PEACOCK,KELLER,YOHE•
&DAY"petition your Honorable Court as follows"to wit:
1.The petitioners are Harry Novi"an individual who resides
in Allegheny County,Pennsylvania at 528 Natchetz,Mount Washington"
Pennsylvania 15211 and Joseph Novi,an individual who resides in
Allegheny County,Pennsylvania at 1522 Berkshire Avenue,Pittsburgh,
•Pennsylvania 15226.
2.The late Emilia Novi,who died March 25,1971,was the
ofmother/the petitioners.She resided at the time of her death at 50
e
Fairhill Drive,Washington"Pennsylvania.
3.Gino Novi"an adult individual who is also a son of the
said Emilia Novi and a brother of the petitioners"resides in Washington
County,Pennsylvania at 50 Fairhill Drive"Washington,Pa.15301.
4.
.,
On an undetermined date but a short time prior to the death
of the said Emilia Novi,she maintained a savings account in the Mellon
National Bank and Trust Company,Fifth and Grant Streets Office in the
City of Pittsburgh,Pennsylvania,which account was altered by the
addition of the name,Gino Novi,as some form of joint owner or tenant
in common.The amount in the said account at the time of the death
of Emilia Novi was approximately $17,500.00.All of the money in
the said account belonged to the said Emilia Novi and none of it had
been the property of Gino Novi.
5.It is believed that decedent left a Will,which is in the poss-
ession of the said Gino Novi,but which has not been offered for probate
and no person is qualified as personal representative of the estate.
Petitioners believe that they are legatees under the said Will,or if
there is no Will,that petitioners are heirs at law of the said Emilia
Novi
l
and believe that the aforesaid bank account should be accounted
,for and distributed under the estate of Emilia Novi.
6.Petitioners fear that the money in said account may be taken
or dissipated by 'Gino Novi without any accountability to other persons
who claim or are rightfully entitled to said money.In addition to
parties aforesaid,minor children of a deceased brother of the said
Gino Novi may also be entitled to participate in distribution of the
said fund.
7.Petitioners believe and therefore aver that the said Emilia
Novi was in a weakened condition and in very poor physical and mental
health for a considerable period of time prior to her death and that
she did not and indeed could not have made an effective inter vivos
gift of the said bank account,either in whole or in part."to the said
,
Gino,Novi.It is further averred that the said Geno Novi,being 'her
son,was in a position of confidential relationship to the decedent.
WHEREFORE"petitioners pray your Honorable Court to grant
-2-
-;
I
"....".
relief to them by freezing the aforesaid account~by requiring the said
Gino Novi to replace all funds which may have been removed from that
account by him,and to ascertain the true ownership of the funds in said
account and if the same be found to belong to Emilia Novi"to require
that such funds be accounted for and administered in the course of the
administration of the estate of Emilia Novi,deceased;and to provide
such further relief as the Court,acting under :its equitable powers"may
deem necessar:y.and appropriate.
PEACOCK,KELLER,YORE &DAY
(
BY t _Il .-''.
........e·narles C.Ke ler"~.....petitiOners...---..------------/
"'-.~~-.,.._._".._,..~----~....~--_.
-3-
I
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COMMONWEALTH OF PENNSYLVANIA (
(SS.
COUNTY OF WASHINGTON (
.,._..,
BEFORE ME,the undersigned authority"personally appeared
HARRY NOVI"who,being duly sworn according to law,deposes
and says that th:e facts set forth in the fore going Petition"are true
and correct as he verily believes.
v'&v~ry NOVI
Sworn to and subscribed
before me this:/O-t4day of
--==..j..~~~_'1971 A.D.
Mary Jane Smith,Notary Public
Wasllington,Washington County,Pa.
My Commission Expires
February 28,1973
_II.''4 II.•••1__"
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NO.63-71-759
sn:
3Jn m~t QIourt of QIommou 'ltus "of lIus4iugtou <!touuty,Jtuul1g1uuuiu
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)
QIttutinu ~(
)
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)
(
EMILIA NOY,JJ._ )
DECEASED.(
)
QtnlumnnUt~ttltl1 nf '~nnnyluttnia !
Qtnunty nf manl1iugtnn )
IN RE:
ESTAT"E OF
To:GINO NOVI
Sur Petition of:HARRY NOV!and ,JOSEpH NOVI,
~rrrtiug:
iJ~Qtntttutttnb 'nu~->-LG........IN.......TO'----'N.......O'-"-V.......,I,J-------'-_
that,laying aside all business and excuses whatsoever,you do file in the office
of the Clerk of our Orphans'Court of \Vashington County,a full and com-
plete answer,under oath,to each and every of the averments of the said
petition,on or before ltlednesday ,the 8th day of_----'=S:....=e-C.p....=.t....=.em=b~er=---..:.__
19 71 at 10:00 o'clock~.M.,and show cause why the.said Gino Novi
should not return to the Estate of Emilia Novi,the sum of approximately
$17,500.00,recently on deposit in the Mellon National Bank and Trust
Company,Fifth and Grant streets Office,P1ttsourgh,Pennsylvania,which
said accoll.T'1t was titled in some form of joint ownership in the names of
Gino·NoviandE milia l!ovi and the moneys in said account being the
exclusive pro~erty of Emilia Novi before her death on March 25,1971;
and further abIde the order of our said Court in the premises,
If you fail hereof,the petition may be taken PRO CONFESSO and
a decree made against you,
WITNESS the Honorable P,Vincent Marino,Judge of our said Court,
at Washington,Penna"the 23d day of__-7'L.LLJ""+G~_
PEACOCK ,KELLER ,YORE &DAY.Esq.
Attorney for Petitioner.East Beau BUllding,
68-70 East Beau Street,
(Seal)vlashington,Pa.,15301.
r..,
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY,PENNA.
ORPHANS I COURT DNISION
INRE:(
)
Estate of (
)No.of 1971
EMILIA·NOVI 1 (
)
Deceased.(
ORDER
AND NOW,July 23,1971,upon consideration of the foregoing
petition,it is Ordered and Decreed that a Citation b~awarded,directed to
Gino Novi,to show cause why he should not return to the Estate of Emilia
Novi,the sum of approximately $17,500.00,recently on deposit in the
Mellon National Bank and Trust Company,Fifth and Grant Streets Office,
Pittsburgh,Pennsylvania~which said account was titled in some form of
joint ownership in the names of Gino Novi and Emilia Novi and the moneys
in said account being the exclusive property of Emilia Novi before her death
on March 25,1971;Citation returnable to Wednesday,September 8,1971,
at 10:00 0 'clock A.M.;hearing on same to be held at same time on said
date in Orphans I Court Room,Court House,Washington,Pennsylvania.
By the Court,
J./
IN HE:
IN T HE COURT OF C011MON PLEAS OF WASHINGTON
ORPHANS'COURT DIVISION
(
)
ESTATE OF (
)NO.63-71-759
EMILIA NOVI;~
DECEASED.(
COUNTY,PENNSYLVANIA.J
;'-SHER IFF'S RETURN·'B _
.'....
~tatr of'ruu.agluauta {~.a.
Utouutg of Ila.a4iugtou J .
day of__J_UL_Y 19 71the26
PETITION
TO THE HONORABLE JUDGE WITHIN NAMED:
I hereby certify and return that on MONDAY
at 7:45 PM.,I served the within CITATION AND----------_.~----------
upon the within named defendant _G_I_N_O_N_O_V_I _
by handing to---=.H=I:.:....M personally at HIS RESIDENCE,;0 FAIRHILL
DRIVE,WASHINGTON,
Washington County,Pennsylvania,a true and attested copy of the within CITATION AND PETITION
and making known to_H_I_M the contents thereof.
~9
I
atB%i;=':::l ~i
PAID BY -ATTY.FORPLFF.
So answers
COMPLAINT IN CITATION AND PETITION
No~3-71-~;9 ---TERM,19 71
INVOICE NO.1828§.
SHERIFF'S COSTS'$9'.,----,-
DOCKET No.IO •?P~GE 32;
.,
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NO.63-71-759
INRE:
ESTATE OF
EMILIA NO\l4
DECEASED
\.
---------~--------
Attorneys:
Peacock,Ke11er,Yohe'&Day
Cpas.C.Ke11er,Esq.
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IN THE COURT (F COMMON PLEAS OF
WASHINGTON COUNTY,PENNA.
ORPHANS'COURT DIVISION
No.63-71-759
IN RE:
ESTATE OF EMILIA NOVI,
Deceased·
PRAECIPE FOR APPEARANCE
and
ANSWER TO PETITION
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RONALD J.McKAY,ESQ.
LAW OFFICES OF
McKAY.ARCH Be STEELE
SUITE 302 FRICK BUILDING
PITTSBURGH,PENNSYLVANIA 15219
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY,PENNSYLVANIA
ORPHANS'COURT.DIVISION----.'J .
IN RE:
ESTATE OF EMILIA NOVI,
Deceased
)
)
)
)
No.63-71-759
PRAECIPE FOR APPEARANCE
TO:BOB A.FRANKS,Prothonotary:
Enter our appearance for Gino Novi,Respondent in the
above entitled case.
By'~..J.:.~~~=-~~:!::::!~~3I¢._Rona J.McKay
Respon ent
Date:September~,1971
ANSWER TO PETITION
AND NOW comes the Respondent,Gino Novi,and answers the
Petition filed in the above captioned matter as follows,to-wit:
1.The averments of fact contained in Paragraph 1 of the
Petition are admitted.
2.The averments of fact contained in Paragraph 2 of the
Petition a±e.admitted.
3.The averments of fact contained in Paragraph 3 of the
Petition are admitted.
4.The averments contained in Paragraph 4 are denied as
stated.It is specifically denied that Emilia Novi maintained an
account at the time of her death in the Mellon National Bank and
Trust Company.
dM£!JliMWAiL&a _c
·,
5.It is admitted that Emilia Novi left a Last Will and
Testament,which is in the possession of the Respondent,Gino Novi.
The Will has not been offered for probate for the reason that the
decedent was possessed of no assets at the time of her death.
6.The Respondent has been advised that the allegations
contained in Paragraph 6 are based upon conclusions of fact,con-
clusions of law and conjecture.For this reason,Respondent has
been advised that he need not answer these allegations'.
7.The Respondent has been advised that the allegations
contained in Paragraph 7 are based upolLconclusions of fact,con-
clusions of law and conjecture.For this reason,Respondent has
been ad~ed that he need not answer these allegations.
WHEREFORE,Respondent prays your Honorable Court to
deny the relief as sought by the Petitioners and to dismiss the
Petition,with costs to be borne by the Petitioners.
McKAY,ARCH lie STEELE
-2-
--.,
COMMONWEALTH OF PENNSYLVANIA )
)ss:
COUNTY OF ALLEGHENY )
BEFORE ME,the undersigned authority,personally appeared
GINO NOVI,who,being duly sworn according to law,deposes and
says that the facts set forth in the foregoi~g Answer to Petition
are true and correct to the best of his knowledge,information
and belief.
Sworn to and subscribed before me
this 7th day of Sep,tember,1971.
/'
PATRICIA 1.MANTIA,Notary PUblic
PITTSBURGH,ALLEGHENY CO.PA.
MY COMMISSION EXPIRES
APRIL 15~1971{..
.
In the Court of Common Pleas of
Washington County,Pennsylvania
Orphans'Court Division
No.759 of 1971
In Re:
Estate of
EMILIA NOVI,
Deceased.
OPINION
(Marino.J.)
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ill THE COURT OF COMMON PLEAS OF WASHThfGTON COUNTY,PENNA.
ORPHANS'COURT DNISION
INRE:(
)
Estate of (
)No.759 of 1971
EMILIA NOVI,(
)
Deceased.(
OPINION
Marino,J.June 3d,1972.
Emilia Novi,a widow aged 79,died March 23,1971.She had been
living with her son,Gino,near Washington,Pa.Her husband died some 15
years before,while they were living in Pittsburgh.Upon his death,she
became entitled to the balance in a bank account held by the entireties with him.
At her insistence she and her son Gino Novi,respondent herein,
went to the said bank (Mellon National Bank and Trust Company,Union Trust
Office)on February 19,1958,and on said date opened a joint savings account,
No.13-182,making an initial deposit of the sum of $6,834.52.This was the
amount remaining in the entireties account,which she closed.The bank
signature card provided by the Bank states in relevant portion:
AGREEMENT BY OTHER THAN HUSBAND AND WIFE
ESTABLISHThfG A JOINT SAVINGS ACCOUNT
We,the-undersigned,hereby open a joint deposit account with
MELLON NATIONAL BANK AND TRUST COMPANY,and jointly and severallyj
agree with respect thereto as follows:
All deposits now or hereafter made therein shall be held and owned
by us as JOINT TENANTS with the right of SURVNORSHIP,and not as tenants
in common,and with the understanding and agreement that upon the death of
.oj-
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\
either,-the survivor shall thereupon be the sole owner of said account and the
balance standing to the credit thereof;this agreement shall be terminated
only by the withdrawal of all the monies in said account.
As a matter of convenience to us only and not as invalidating this
JOINT ESTATE,the monies in said account shall,subject to the rules of the
Bank,be withdrawable at any time and from time to time by check or order
of withdrawal signed by either of us;the power and authority granted herein
to each of us to sign checks or orders of withdrawal against said account may
be revoked and terminated by either of us by written notice to said bank to
that effect;upon receipt of such revocation by the Bank,all checks or orders
of withdrawal shall thereafter require the Signatures of both of us.
In Witness Whereof,we have hereto set our hands and seals this date Feb.19,
1958
lsi Emilia Novi (Sea])
LsL Gino L.Novi (Sea~)
MELLON NATIONAL BANK AND TRUST COMPANY UNION TRUST OFFICJ
Petitioners,Harry Novi and Joseph Novi,brothers of the responden ,
challenge the validity and legal efficacy of this agreement executed more than
13 years prior to the filing of their petition herein.They allege various
grounds in support of this challenge.
First,it is urged that the bank agreement,as set forth on the
signature card,does not show a valid inter vivos gift of said account from the
donor,Emilia Novi,to her son in the form of a joint account with right of
survivorship.Admittedly the respondent has the initial burden of proving a
valid inter vivos gift,and such proof is established only by evidence which is
clear,direct,presise and convincing:Secary Estate,407 Pa.162,167 (1962 ;
Balfour v.Seitz,392 Pa.300 (1958).
,.
-2-
In this area of the law,certain well-settled principles are paramount:
(1)in the absence of fraud,accident or mistake,when a person creates a join
savings account with the right of survivorship,and a signature card so stating
is executed by both parties,these facts constitute prima facie evidence of a
gift inter vivos by the depositor (whose funds are used)to the other person
(who ,.contributes ~othing),.and of the creation of a joint tenancy with right of
"r .
survivorship:Furjat1ick Estate,375 Pa.484 (1953);(2)in the absence of.
alleged or proven fraud,accident or mistake,if the wording of the signature
card reveals the intent of the depositor without ambiguity,parol evidence to
show a contrary intent is inadmissible;if from the wording of the writings
the intent of the depositor appears indefinite or uncertain or ambiguous,then
parol evidence is admissible:Amour Estate,397 Pa.262,264 (1959);(3)
when a prima facie case has been made out,_·.then ,the burden of proof shifts,
and to sustain such burden the evidence must be clear,precise and convincing.
Rogan Estate,404 Pa.205,211 (1961).
We permitted the introduction into evidence,by way of cross-
examination of respondent,of oral testimony to show that,when decedent
created this joint savings account in 1958,no gift was intended.The court
could have refused this privilege,as the written agreement and signature
card compare favorably with that used in Amour Estate,supra,and Cox Estat P.,
405 Pa.444 (1962).
But the testimony on cross examination was not very revealing,it
being 13 years since the account was opened.Respondent could hardly be
expected to recall minor details of the opening'of this account 13 years later.
The account was opened at the insistence of the decedent.Petitioners knew
at all times that it provided for right of survivorship.After almost ten years
one of the petitioners went to the bank with his mother to make a deposit of
$5000,the proceeds of the sale of her home property in Pittsburgh.We are
-3-
unable to deduce from this testimony that the decedent created the joint bank
account only for the purpose of enlisting the aid of her son Gino in drawing
checks that she desired,and that Gino had no present interest in the account
but was merely to be entitled to any balance remaining at her death.The only
person who interpreted the bank agreement card in this fashion was the
petitioner,Harry.
The claim of petitioners is that decedent created the joint bank
account only for her convenience to pay her current bills and that she only
wanted her son Gino to have the money if any remained at her death.Evidence
was introduced concerning her inability to speak and write in the English
language,as well as the precarious condition of her health for two or three
years before her death in 1971.Such testimony was not very persuasive.
Decedent spoke to neighbors,friends and acquaintances in English and never
had any trouble.Only one of her children could speak Italian,so she had to
converse with the others mostly in EnglislJ..She was not dependent upon Gino
until shortly before her decease.
During her lifetime Mrs.Novi made a number of deposits to this
account;at times she was accompanied by one of her children,at others
she was alone.Mrs.Novi also made withdrawals from the account on various
occasions.In 1967 she withdrew $500 and $100 on different dates.In March
1968 she withdrew $100 and the next month,accompanied by her son Harry
{one of the petitioners}she withdrew the sum of $1000 and with said sum
opened an account in the ttHilltop Bankll which was near her home and which
she could easily manage to walk to.This account was a joint account with
her son Harry.As testified by him,Mrs.Novi !tdid her own banking.!!We
interpret that to mean that she could,and did,on occasions go alone to the
bank to make deposits or withdrawals.
-4-
n woul~appear that Mrs.Novi was well able to handle her banking
in its various phases.She had no physical disability and her health remained
good until the last few years.Her neighbor,who visited her three or four
times a week,related how Mrs.Novi walked to church every morning at
6:30 without any aid of any kind.Just a few years after the original account
was opened,she traveled,unaccompanied,to Italy for a visit to her birthplacE,
without incident.
This is hardly the type of person whose background would suggest
the necessity of possessing a bank account in joint names simply for the
convenience of making deposits and withdrawals for the benefit of the other
joint tenant,thus rendering it possible for the sickly or disabled joint tenant
to carryon the normal banking activities without appearing at the bank.
However,petitioners maintain that a confidential relationship existe ~
between Mrs.Novi and the respondent,thus placing the burden on him to
prove that the inter vivos gift was unaffected by undue influence or imposition
or deception:Kees v.Green,365 Pa.368 (1953).Such relationship must
have existed at the very time of the opening of the subject account.Th~re is
hardly a word of testimony from which one could deduce such a relationship
other than the blood relationship of mother and child.But a confidential
relationship does not arise merely from the fact of family relationship,and
in cases of gifts inter vivos between parent and child the validity of the gift
is presumed,until otherwise proved.There is a presumption of fairness and
not of fraud:Hand's Estate,315 Pa.238 (1934).The mere existence of
kinship does not,of itself,give rise to confidential relation:Clark v.Clark,
174 Pa.309,336 (1896).
It is apparent that such a relationship did not exist in 1958 when the
bank account was opened.\Whether one existed subsequently,we find it
unnecessary to rule;one need not show the intent of the depositor every time
-5-
a new deposit is made to an old account.We might observe that a substantial
deposit was made in 1966 when Mrs.Novi sold her residence.At that time
she deposited in this account the sum of '$5000.She was accompanied to the
bank by her son Harry,one of the petitioners,and not by Gino.
Petitioners complain of the court ruling not permitting them to
introduce testimony concerning the will of the decedent and her husband.They
claim that the will discloses a well-defined plan for the disposal of their estat
and that the establishment of this account contravened the terms thereof.But
the fact is that all we have is a will disposing of the estate assets equally to
the children.There is no plan,as such,that is disrupted in any way.What-
ever assets the estate has,are to be distributed to the children in equal share$.
Nothing interferes with that disposition.It could hardly be argued seriously
that no assets may be disposed of simply because a will has been executed
making equal distribution of an estate among the children.
In support of their theory permitting such testimony,petitioners
cite Light Estate',80 Dauphin 303 (1963),where the husband-decedent had
purchased certain stock in his and his wife's names.In his will the husband
attempted to dispose of the stock as a legacy.The court held that the husband
was simply mistaken as to the ownership and how titled and that this had no
,'effe~t whatever'o'ri the inter vivos gift to th'e wife.We feel that this case reall
supports'our holding rather than the theory propounded by the petitioners •.
,One other matter should engage our attention.The record discloses
that on Novem~er 2,1970,Gino Novi went to the bank and withdrew the entire
balance in this account,a sum in excess of $14,000.With this money he mad
certain investments at another bank (certificates of deposit)and opened anothe
savings account with the balance,both being in the names of himself and his
wife,excluding his mother.He testified:•••"I could have withdrawn this
money anytime,but I didn't need it.II
-6-
Whether this withdrawal was proper and valid we are not called upo
to decide,and we do not here decide.Perhaps the question is moot,since
the money was available for Mrs.Novi's needs during the rest of her lifetime
and for her funeral expenses.Mr.Novi test ified that the fund was withdrawn
for the purpose of securing a higher interest rate elsewhere.He did not
explain why he made the said deposits in the names of himself and wife rather
than himself and his mother,the form of the original account.
We content ourselves in this situation with the observation that a
joint account may not legally be dissipated by one of the joint tenants to the
detriment of the remaining joint tenant without a legitimate reason for the
withdrawal of the entire balance.
In summary,we hold that the bank account in question was properly
set up in 1958;that the respondent has proved a prima facie inter vivos gift
from the decedent at that time.The attack on the validity thereof by the
petitioners'fails because their allegations are not supported by evidence which
is clear,precise and convincing.The petition is therefore dismissed.
· .
,,
-7-
""\-I
COURT OF COMMON PLEAS OFWASHINGTONCOUNTY,PENNA.Orphans I Court Division
No.759 of 1971
IN RE:
ESTATE OF EMILIA
NOVI,Deceased
BRIEF ON BEHALF OF
PETITIONER
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LAw OFFICES
PEACOCK.KELLER.YOHE &DAY
EAST BEAU BUILDING
68-70 EAST BEAU STREET
WASHINGTON,PA.15301
COURT OF COMMON PLEAS OF WASHINGTON COUNTY.PENNA.
ORPHANS I COURT DIVISION
IN RE:
ESTATE OF
EMILIA NOVI.Deceased
(
(
(No.759 of 1971
(
(
BRIEF ON BEHALF OF PETITIONER
Peacock,Keller.Yohe &Day
Attorneys at Law
68-70 East Beau Street
Washington,Pa.15301
QUESTIONS INVOLVED
1.DID EMILIA NOVI MAKE AN INTER VIVOS
GIFT TO GINO NOVI OF ANY MONEY ON
THE CREATION OF A JOINT SAVINGS
ACCOUNT,WITH RIGHT OF SURVIVORSHIP
ON FEBRUARY 19,1958?
II.DID EMILIA NOVI MAKE AN INTER VIVOS
GIFT OF THE CONTENTS OF A JOINT
SAVINGS ACCOUNT AT ANY LATER TIME,
AFTER ITS CREATION?
STATEMENT OF FACTS
Emilia Novi died March 25..1971 in Washington..Pennsylvania.
She was survived by three sons..Gino..Harry and Joseph and the
four children of a son..Paul..who died in September of 1967.Gino..
with whom she had resided for the last nine months of her life..failed
to offer her will for probate on grounds no assets existed.The other
two sons then petitioned this Court to freeze $1 7..500.00 allegedly held
in a Pittsburgh bank in some form of joint savings account and the
Court ordered a citation issued on Gino Novi to show cause why that
fund.should not be returned to the Estate of Emilia Novi.
Gino filed an Answer denying such funds existed and asserted
that an inter ,"vivos gift had occurred and the money had been transferre
to other places and forms.The matter came on for hearing on Wed-
nesday..September 8..1971.
At the hearing..it appeared that Emilia Novi had deposited
$6..834.52 in a Pittsburgh bank in a savings account..No.13-182..
naming Mrs.Emilia Novi or Gino L.Novi as joint tenants..with the
right of survivorship.
During her life",Mrs.Novi made five withdrawals from tliis
account and a number of substantial deposits so that in July..1970..whe
Mrs.Novi went to Washington..Pa.to live with son Gino",there was
$19..281.90 on deposit in the account.Gino made one withdrawal on
August 3",1970 of $5",000 on the urging of his mother..allegedly to
build a room on his home for her..and then withdrew the balance
of $14..281.90 on November 2..1970.He had made no other with-
drawals and no deposits to the account.
The present status of the $19..281.90 appears to be that
$10..000 is held in the form of two $5..000 certificates of deposit
(Nos.500077884 and 500077896)in the Dollar Savings Bank in
Pittsburgh..Pennsylvania in the names of Gino L.Novi ,or Marie L.
Novi (his wife).$4,281.90 is held in the original account in the Union
Trust Office of the Mellon Bank in Pittsburgh,Pennsylvania under a
special passbook in the names of Gino and Marie Novi.Some $1,500
is on deposit in a checking account :in the Brookline Bank (now WPNB),
Washington Office under the names of Gino and Marie Novi.The
balance was spent on a wedding for Ginots daughter and some purchases
and certain expenses relating to Emilia (medical,hospital and funeral).
1.DID EMILIA NOVI MAKE AN INTER VIVOS GIFT
TO GINO NOVI OF ANY MONEY ON THE CREATION
OF A JOINT SAVINGS ACCOUNT,WITH RIGHT OF
SURVIVORSHIP,ON FEBRUARY 19,1958?
At stake is the life accumulation,nearly $20,000.OO,of Mother and
Father Novi.Shall it be distributed equally to all the children,according to
the estate plan,including Wills,of the parents,or shall it all vest in a single
child by virtue of a bank account arrangement of uncertain origin and doubtful
purpose?
Did Mrs.Novi,acting shortly after the death of her husband,intend 0
establish a "convenience'joint account whereby her eldest son,Gino,could
assist her in the event of the illness or incapacity she so dreaded,or did she
intend a present gift to him of the right to use her only worldly assets?
The most recent and revealing of the major cases involving joint sav
ings accounts and alleged gifts inter vivos is ·Cilvik Estate,~
(1970).Chief Justice Bell begins his opinion by referring to "those perplexin
.
and vexing bank signature cards!'.
The law is there clearly set out:
!'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,and a signature
card so stating is signed by both parties,.§.prima facie
inter vivos gift to the other party and of the creation of
a joint tenaIlC'Y'with right of survivorship is es~hed:
Furjanick Estate,(375 Pa.484,100 A<.:fcl-ST5);Lochinger
vs.Hanlon,348 Pa.29,33 A.2d 1."
" ,•••Although the decision in this class of cases
often depends upon the exact wording of the deposit account
and the signature card and the agreement,if any,accom-
panying 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..I "Bro-
zenic Estate,416 Pa.204, 207,204 A.2d 918.
/-Evidence to overcome this prima facie inter vivos
/gift must be clear:....I,lrecise and convincing.Slavinski Estate,
(420 Pa.504,218 A.2d 125;Brozenic Estate,416 Pa.supra;
\Bunn Estate,413 Pa.467,198 A.2d 518;Fenstermaker
"--~
-1-
Estate,413 Pa.645,198 A.2d 857;Berdar Estate,404 Pa.,
supra."
To constitute a gift inter vivos,two essential elements are requisite:
an intention to make an immediate gift and such an actual or constructive
delivery of possession to the donee (2)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 as is consonant with a joint
ownership or interest therein.Bunn Estate,supra.
Here,Gino Novi relies almost wholly on a bank signature card pro-
vided by Mellon National Bank.It states in the relevant portion:
"We,the undersigned,hereby open a joint deposit
account with Mellon National Bank and Trust Company,and
jointly and severally agree with respect thereto as follows:
All deposits now or hereafter made therein shall be held
and owned by us as JOINT TENANTS with the right of
SURVIVORSHIP,and not as tenants in common,and with
the understanding and agreement that upon the death of
either,the survivor shall thereupon be the sole owner of
said account and the balance standing to the credit thereof;
this agreement shall be terminated only by the withdrawal
of all the monies in said account."
One gets the impression that the Court does not have as much confi-
dence in the efficacy of the bank contract in deciding the rights of the parties,
inter sec.,as he did earlier in Furjanick Estate,supra.
In CilVik,.supra,Chief Justice Bell said at p.525:
"A bank signature card is a contract which creates
a savings account or a checking account when signed by the
creator or creators.Pursuant to the signature card,the
bank then issues a savings account passbook or checks.
The reason bank signature cards have created such confusion
in this branch of the law is because they are drawn by the
bank principally for its own benefit and protection,and are
very often loosely drawn".
/j.4 3 /iD~-::--..In Bunn Estate,k6.pra,at Page 471,the Court flatly stated:
"Tb;e signature of Mrs.Bunn and the claimant (Sherman)
to such a card and the valid delivery thereof to the bank would
create prima facie an inter vivos gift to the claimant with right
of survivorship:(and cases cited).However,since such a card
k..e...e:...."A""'''~<-'"'"~ot.!::_~:-+llJ....=...........'''"''--~-<::P........'''\..~3?i~in~~~a ....r:.-to....l-...~
1~;4~~~~--J?~,
evidence is admissible to prove Mrs.Bunn's donative in-
tent and a completed gift by her to Sherman".(Emphasis
supplied).
In this case,it is to be noted that the ownership arrangement in the
event of a death never materialized because Gino Novi terminated the account
prior to the death of his mother under circumstances which are questionable
and uncertain.Was he switching the account to get a better interest rate as h
says at Page 92,or because his mother said to "take the money out"as he
claimed at Page 9,or to build an extra room for his mother at his Washington
home,Page 10,or to buy a sofa bed,Page 10,or to pay for his daughter's
marriage,Page 112,etc.?Was he assuming the ownership and control of the
funds as his own,or was he carrying out his mother's bidding as her agent?
Or perhaps was he subject to the rules of resulting trusts,designed for those
very situations where one obtains legal title by some form of unconscionable
conduct or questionable means?
Under the above circumstances there is surely sufficient uncertainty
to require parole evidence to plumb the creation and conduct of the account.
After all,"the claimant has the burden of proving a valid inter vivos gift•••
and this proof can be established only by evidence that is clear,direct,precis ,
and convincing!1.Bunn Estate,supra,at Page 470.The eventuality of death
here not having occurred,the bank contract amounted to no more than ".• •
the creation of a joint tenancy with right of survivorship which fact,as pointed
,~
out above,does not bar the admissibility of evidence such as introduced in
the case at bar of acts and conduct on the part of the •••depositor which re-
veal,manifest or indicate depositor's intention at the time of creation of the
account."Cilvik Estate,supra.,at Page 529;Berdar Estate,supra.
Yet another reason for permitting parole evidence here is the reason
it was permitted in Slavinski Estate,420 Pa.504 (1966),a joint savings accou t
case.There the son admitted in court the purpose of the account was "to take
care of Pop",and so that the signature card did not contain or reflect the whol
-3-
agreement between the parties.See also Lorillard Estate.14 Fid.Rep.639
(Del.-1964).
In our case.Gino testified his mother created the account thusly:
"I want your name on it just in case I should need anything.you know your're
the one I have the most trust in.I want you to take care of it".(Page 13).
Gino's cross-examination continued on Page 13:
Q.As I understand you.what you said is that she added your name
to this account as a matter of convenience.is that correct?
A.No.I don't think so.It wasn't a matter of convenience.It's
just that she felt that I would take care of it.you know.She
knew my brothers wouldn't if everything came to---in other
words.she wanted this money for her old age.actually.This
was an account she put away for her old age and she knew I
would help her and I wouldn't put her away or anything like that.
She was afraid of two things:running out of money and being
put away.you know.
Q.And then she was counting on you to take care of her if she got
sick.is that correct?
A.Well.throughout her whole lifetime there.anytime for that matter.
Q.Was she counting on you to pay her bills if this was necessary?
A.While she had the account there.yes.
Q.On one occasion she took a trip to Italy.didn't she?
A.Yes.she did.
Q.Was she counting on you to take care of her affairs and her bills
while she was away?
A.Not her bills.If there was any bills to be paid.they would be
paid.She was only gone a month.a month and a half.No.
two months rather.Two months was it?I don't remember
exactly.
Q.She was relying on you then to keep her affairs current and to
help her with her account?
A.As long as she needed it.you know.She didn't---very seldom
did she ask for anything of that sort because she was capable.
Q.Well.then.as a matter of fact.the addition of your name to the
account was for her benefit and convenience.wasn't it?It was
an aid to her.wasn't it?
A.Well.it could have been an aid to her if you want to look at it
that way.I guess.in a way.
-4-
This testimony was expanded upon later at Pages 102-103:
Q.I think you said,as I understood your testimony,and it's a little
hard to hear from down here,that you understood that this account
was,after it had been set up,that it was in such form that
you were to have charge of it in case she ever needed any help
with the account.Is that much right?
A.Well,to tend to her needs,yes.
Q.In other words,if she needed any help in drawing checks or
making withdrawals or if she were out of the country or incapa-
citated that you could help her and do her banking for her.
A.I could take care of these things for her,yes.
Q.Do I further understand that you thought this relationship was
that---strike that.Do I further understand that it was your in-
tention and developed and your practice as it went along not to use
this money because you wanted to save it for the eventuality
that she might need it.Is that right?
A.That's exactly right.And that was her fear too,not having
enough.
Q.Did you feel that after she was gone and had used as much of it
as she needed that at that point it would then go to you?
A.That's the understanding we had from the start when we signed
this card here at the bank.
Q.The money was to be there and available for her to URe during
her lifetime and at her death it was to go to you?
A.That's the understanding I had from the beginning.
Although Gino would not allow himself to use the magic words,
"convenience account"it seems clear the above is an admission,(1)the
bank signature card was not the entire understanding (at the least),or (2)that
no present gift was intended (at the most).
It is worth noting this Court permitted parole evidence in two other
cases involving Mellon Bank joint account signature cards to overcome a prim
facie gift.Estate of Capazzoli,45 Wash.Co.Rpts.104 (1964),and Estate of
Dosia B.Scott,43 Wash.Co.Rpts.176 (1963).In the former,however,the
other evidence confirmed the gift and in the latter,none was offered.
Let us therefore briefly consider the circumstances of the creation
-5-
and use of the account to ascertain whether an effective present gift was made.
The original $6,834.52 with which Account No.13-182 was opened had been
earned by the father,Cesare Novi,and had come to his widow on his death in
1967 as surviving joint tenant of a savings account (R.16).This money,to-
gether with her home,were her only assets.
(It should be noted that the principal issue in this case is the dis-
position Emilia intended and made of these assets.Petitioners offered,
(37-42),to show a settled family plan entered into in 1954 with the preparation
of wills by both parents•.Their offer also included evidence that the plan
remained unchanged and called for equal distribution among the children.The
effect of the bank account,if a gift inter vivos to Gino,would have defeated
that plan.The Court sustained objections to this offer on grounds of irrelevancy
and the Court is urged to reconsider its position.~~h.JEst;~e,s~
where estate plan was considered relevant).1'OJ).(P:-:3 03.------.----..-.....-.-/
On February 19,1958,Mother Novi went with Gino to the Union Trus
Office of Mellon Bank in Pittsburgh and she set up a new account,#13-182,
into which she transferred $6,834.50 from her former account.The account
was titled "Mrs.Emilia Novi or Gino L.Novi".A signature card was pro-
vided and signed (see exhibit).Gino testified the "man in charge!!explained
it to her and he did also in Italian.
Gino's cross-examination on these events is revealing (99-102).Mrs.
Novi,then in her late sixties,couldn't read English,understood it poorly,hac
to have the information translated (and by Gino at that).He did not remember
the banker's name or what he said.
What did Mrs.Novi intend to do?What did she understand to be the
effect of this account?Gino's summary explanation to her was,".• •if any-
thing would happen to her,I'd be in charge of it".(96).There is no use of
any clear-cut word like "gift".It should be remembered that Gino had earlier
in 1954,been named Executor of her will.To "have charge of"implies some
-6-
responsibility to others.The record at no place shows any words or actionsr~----.------
by Mrs.Novi consistent with a gift.
/'-~_.~~--'.
Moreover,Mrs.Novi had no explanation from anyone else.Gino's
cross-examination is revealing:
A.
Did you tell her in effect that this would be~ing all of her
money ~you...pr making all of her money available to you -
right at that moment?Did you tell her that?
I don't remember saying that.
Q.Did you tell her that this---strike that.This was her primary
asset,wasn't it,the bank account?
A.Yes,sir.
Q.Now you knew that she had aWill that left everything equally
to the boys.
A.We all knew this.
Q.Did you tell her that this bank account was in effect vetoing her
Will and ~~s,jiving evNYiQin~:Y:Ql1...insteadof carrying out the
plan of her Will?
A.These are things I never thought of.I'm not a lawyer.This was
just passing,this is one of these things that came up and that's it.
Q.She never did talk with a lawyer about this at the time or have it
explained to her by somebody representing her,did she?
A.Not outside of this man at the bank;that's all I know of.
Q.Do you know whether she talked over with her other boys this
move before she did it?
A.I really don't know.
Q.Do you know whether she told them that she was taking all of
her money and putting it ina joint account which was yours
thereafter?Do you know whether she did this?
A.There was no way of my telling.I don't know.I hadn't been
home---
Gino admits he didn't even tell his brothers of this (102)but assumed
they'd find out by peeking into her records.As a matter of fact,they didn't
learn for some 10 years (44).
Subsequently,Emilia made a number of deposits to the account,one
of $5,000.00 at the time of the sale of her home.Harry,not Gino,was present
-7-
J
)
and assisted her at this time.(44).Gino made no additions to the account.
He concedes repeatedly that all the money in the account was hers.(15,16,
etc.)
Between 1958 and July 3,1970,when Emilia went to live with Gino,
some five withdrawals were made,all by Emilia,one for $500.00 in May----,.-----------
1967 when she went to Italy,one of $1,000.00 in April 1968 when she set up 'a-~.~-----~.---.----------
joint account with Harry,and 3 small withdrawals.Gino withdrew none,(34),------------
was likely not even present at any withdrawals,(although his testimony is con
fusing and uncertain on this).(108).
Not only did Gino not make any withdrawals,he didn't even have the
means,PQ.ss~s..gio!!..of..!he pass~ook.
The evidence clearly shows Mrs.Novi was in possession of the bank-
~~'-"_-
ook at all times between 1958 and mid-1970 when Mrs.Novi came under'--,..------.-;,.
Gino's control.(108)(112).She kept it in a "little box in her bedroom".
~
Thus,all the money placed in the subject account was Mrs.Novi's
initially and subsequently.She alone made further deposits.She alone kept
the passbook and made all withdrawals.These elements are uniformly accept d -,
as bearing on whether a gift had occurred.For origin of money,see Cilvik
Estate,supra.,Cox Estate,supra.~ight ~state,supra.,Lorillard Estate,
supra••Sangl vs.Sangl,394 Pa.156.For element of deposits and withdrawa s,
see Cox Estate,supra;Bunn Estate,supra.For element of control of probat ,
see Cilvik Estate,supra.,Cox Estate,supra.,Brozenic Estate,supra.
Let us take a moment to analyze the evidence as to the creation of the
account and to Mrs.Novi's intention and understanding of her act.The only
testimony of an intended gift came from the donee,Gino.His version was
that she made the alleged gift because only he could be relied on to help her
and the other brothers could not.
CC --------------.."youIre the one I have the most trust in".
-8-
(13 )
"Its just that she felt that I would take care of it,you
know.She knew my brothers wouldn't.• •(13).
"She knew that if it ever came to a point where she
needed help during her old age,or anything of that sort,
that I would be the one to take her in."(15)
"She knew my brothers wouldn't share in that.(The
duty of long term care)."(34)
"Good.Who else can I depend on?II
Gino's version is not consistent with other evidence.It was Gino who
agreed that Mrs.Novi treated all her sons alike,and that he was not a "favor'e
son".(16).His brothers,Harry and Joseph,were not only reliable but pro-
vided most of the aid to the mother from 1958 until she actually went to live
with Gino in Washington,Pennsylvania.(Gino had moved away to Washington,
Pennsylvania in 1958 soon after his name was added to the Mellon account).
Joe lived with her from the death of the father,Cesare,in 1958 until his
marriage in 1961.Thereafter he lived within a matter of blocks and visited
often with her,shopped for her,brought the grandchildren in,etc.(76,79).
Harry lived close by for the entire period of 1958 to 1970.He was
the youngest son,seems to have been the closest,and spent the most time wit
the mother,three or four visits a week.(43).It was he she turned to for
help on the sale of her home in 1966,and even to make the deposit of $5,000.
in the Mellon account (44).It was his name she added to the Western Pennsyl
....
vania National Bank joint checking account at the neighborhood bank (Hilltop)
'.-.-----.....-....---____----_.....-----.J
in April of 1968.(18-19)(48-49).He was the son called when the "gas crisi "---------------~'_I___11 in mid 1970 develope~.(51).He helped her ~~(63),letter---~-_.>-----....::-:---:=---
writing (50),shopping (51),took her to the cemetery (51),painted the house
(51),and otherwise tended to her needs.Harry told of brother Paul's visits
and aid as well.
During these 12 years,Gino was seldom around.He conceded his
brothers had more contact with his mother during this period.(30).
The testimony of a neighbor,Rose Michalski,the only disinterested
-9-
witness,was illuminating.She told of the interest and visitations taken in
and with the mother."(Harry)was the only one that came pretty often".(69).
Joe came weekly and son Paul came to,help with the grass.(70).As for
Gino,he came "Not as often,I'd say about every 3 or 4 months".(70).Mrs.
Michalski testified positively that Mrs.Novi had,in discussing the sale of
her home,told of how her sons would equally share in her estate.(71).She
did not play favorites among her sons.(71).
Finally,against the backdrop of Gino's claim that only he could be
trusted to care for Mother Novi in her sickness or old age,we must consider
Harry's assertion Gino had asked for help and that he had agreed to help with
Mrs.Novi's bills in 1970 should her money run out (54,65)and Gino's ad-
mission as to this agreement.(31).
'...._--.This somewhat detailed examination of the evidence clearly marks
Gino's version of the reason for the gift in connection with the Mellon account
as false and lacking credibility.There is not one iota of evidence except fro
Gino,that Mother Novi relied chiefly on him.The facts both at the time of
the gift and for the next 12 years were to the contrary.
Sometimes the subsequent behavior of the parties reveals their under
standing of a transaction.How did the parties,especially Mrs.Novi,view th
situation during the interim after 1958.
Although Harry and Joe did not learn of the addition of Gino's name t
the Mellon account until 1966,both understood it to be a convenience account
only (54,77).
A similar account established on April 26,1968 at the Hilltop branch
of Western Pennsylvania National Bank with Harry's name as co-owner,was
viewed by him as a "convenience"account and the money as his mother's.
(49-50).(It is interesting to note that Gino viewed this account as having
~----.----_...-'--'-----:::--
created a gift inter vivos to Harry,though no one had told him of any such,..
understanding or purpose).(24).See Berdar Estate,supra,where evidence
-10-
of a similar account with others was considered on the issue of convenience
or donative intent.
The behavior of Gino is consistent with this.He never even mentiondd
being on the account to his brothers (102).Not until after the death of his
mother did he openly claim the money as his own and to the exclusion of his
brothers.(55).In fact,he told Harry as late as November of 1970 any re-
maining bank balance would be shared among the boys.(54).Although Gino
asserts a gift such that the money was his,ab initio,to use as he saw fit,he
admits,"She knew I wouldn't touch it".(34).He concedes the money was not
to be used but saved for the eventuality the mother might need it.(102).
How about Mrs.Novi?At the creation of the account,Gino admits t
a language problem,such that his mother understood limited English,read
none,and got most of her understanding from his translation of an unnamed
banker's instructions.He concedes she got no independent legal advice,did
not even consult with her other sons.The language barrier was one factor
militating against the creation of a gift in Slavinski Estate,supra,and Berdar
Estate,supra.Nor did Gino or anyone explain to her this account would
effectively rescind her will by transferring all her assets to Gino.(101).
e fact that Mrs.Novi read no English and had to have Gino translate both t e
literal meaning and practical significance of the language on that joint account
almost surely places Gino,the translator-son-donee,in a confidential relatio -
shi within the meaning of Young vs.Klage,post.This,of course,imposes
an infinitely higher burden of proof on Gino).This case is unlike Estate of
Capazzoli,supra,where donor I s attorney explained the consequence and dono
had repeatedly used this device before and had heard other explanations of the
consequences of survivorship accounts.
Mrs.Novi still apparently expected her children to share what was
left equally,and this included the four children of her deceased son,Paul.
She told Mrs.Michalski this on several occasions during the ensuing years
and especially in 1966.Moreover she never mentioned to anyone that her will
----------------~-.
-11-
(71 ).
We call special attention to Cilvik Estate,supra,because so many
factors present here were also present there.The Court rejected the gift
inter vivos and held the evidence ov.ercame any inference of a gift.The
Court relied on the fact that the funds had belonged to Testator,the passbook
~was retained by Testator,that Testator had been concerned about ill health
and his future,tbat there had been no ee.:e.lanation of the l~gal significance.....Qf__
__-..!he opening;:f~~.acc~that~s word~and actions were.~J
with a gift,that donor had made no clear pronouncement at the signing of the I
~
cards and evidence of a convenience account was strong.
In summary,it is urged no gift occurred on the addition of Gino t s
",'
name to the Mellon account on February 19,1958.The proponent relies ex-
clusively on the signature card contract to create a prima facie gift,and on
his own limited testimony his mother trusted him only and wanted him to "hav
charge"of her money.
Petitioners on the other hand have produced consistent evidence we
believe to be clear and compelling from the other living sons and a knowledg -
able,disinterested witness,that the circumstances of the opening of the acco
the use of the account and the conduct of the parties all negate a completed,
immediate gift in 1958.
Instead,we urge the Court to find this account a "convenience'!acco
without any gift having occurred,an arrangement intended to protect Mrs.No
with assistance a woman of her advanced age,newly widowed,and with limite
language capability,might be expected to seek from her eldest son.
II.DID EMILIA NOVI MAKE AN INTER VIVOS GIFT
OF THE CONTENTS OF A JOINT SAVINGS ACCOUNT
AT ANY LATER TIME,AFTER ITS CREATION?
Counsel for Gino Novi has specified their claim is limited to the
occurrance of a gift inter vivos at the time of the addition of Gino I s name to
the Mellon account on February 19,1958.(29).However,since none of the
-12-
indicia of ownership were exercised until 1970.it seems to us that the occurr nee
of such a gift at that time should at least be weighed.
The sequence of events is interesting.Harry discovered his mother
in a dangerous.gas filled apartment and the decision was made to move her.
Joe had just moved and could not take her;Harry was working 7 days a week
and his wife was tending her sick mother.(55.59).So Gino volunteered
(55-56)to take Mrs.Novi to his house in Washington.Pennsylvania on July 2-----------------------~'.....or 3.1970•.>The balance of $203.98 from the Western Pennsylvania National
'"'"'"'-------
Bank account (in the names of Emilia and Harry Novi).was removed on July
!'
16.1970 (48).so Gino could purchase a sofa-couch (25).Mrs.Novi suffered
a stroke during the last week of July.(60).Gino removed $5.000.00 from
the Mellon account on August 3.1970.(19).Gino put her in a nursing home
during November because "it started to get her (his wife)downt'.(30).He
took the money and closed the Mellon account on November 2.1970.In Jan-
~?
Gino testified that he finally broke his 12 years of inattention to the
(61).She died on
March 25.1971.
uary.Gino put his mother in the Washington Hospital.
Mellon Bank account at his motherts urging."Take the money out".(9).t'Go
ahead•••the bank.use it also at the Mellon Bank".(10).This was within
2 or 3 weeks of her move.or the latter part of July.(10).Under examina-
tion by the Court.Gino told how he cleared the Mellon account out in 2 with-
drawals.but never quite answered the Court's repeated question as to whethe
she had turned the passbook over to him.(111).Gino admits he never did
tell her about closing the account.(113).
It is submitted that Gino's proof of delivery and the completion of a
gift inter vivos in 1970 is insufficient to meet the high standard required of
him.Emilia was in weakened and poor physical and mental condition at this
time.
-13-
Harry told in detail of her deterioration for two years.By May of
1970,she was "more forgetful",couldn't sign her name,and became a hazard
to herself.(58).Joseph confirmed this.(79).So did Mrs.Michalski.She
said,"Her mind was slipping"and told of her increasing forgetfulness.(72-
73).Even Gino testified to this same deterioration:"Well,she started to get
a little bit--was starting to loose her mind partially,off and on,you know.
She was doing things,she was getting forgetful,in other words,at times---
her age was 79."(28).
After going to Washington,Emilia had a stroke before the end of July
It effected her arm and she couldn't talk.(60).She had difficulty recognizing
her sons.(60,80,81).She was sent to both a hospital and a nursing home.
Except for visits by the sons and a visitor,she was under the complete care
and control of Gino.(61).
One other factor catches our eye.Gino's version seems to say the
mother insisted,couldn't wait,as it were,to have him take and use the mone
after she came into his home.This is totally inconsistent with her character
and life habits.Gino testified,"What she was afraid of was running out of
money.That was her main concern for old age.That was her big problemlf•
(23).Mrs.Michalski told how careful she was with money."She watched
every penny.She'd go a mile to save two cents•••".(73).Again,Gino said
"She was afraid of two things:running out of money and being put away,you
know".(14).
Gino may have misunderstood his mother,but we doubt she ever,
while competent,gave him carte blanche to spend her money on himself and
his family.Gino's evidence is less than clear,precise and convincing that
Mrs.Novi had abandoned her interest or claim on this money.It is perhaps
,.-"-----------------
worth noting that it was not until after she suffered her stroke that Gino with-
drew the $5,000.00,and then in November when she was apparently in the
hospital,that he took the balance of some $14,000.00 from the account.
-14-
In any event,it seems clear no sufficient evidence of a present gift
or a delivery of a prior gift occurred after Emilia moved in with Gino.In the
33.5"
recent case of Young vs.Klage,443 Pa.AH.'"8 (1971),Justice Roberts said:
"When the relationship between persons is one of trust
and confidence,the party in whom the trust and confidence
are reposed must act with scrupulous fairness and good
faith in his dealings with the other and refrain from using
his position to the other's detriment and his own advantage.
McCown vs.Fraser,327 Pa.561,192 Atl.674 (1937);
Null's Estate,302 Pa.64,153 Atl.137 (1930);Popovitch
v.Kasperlik,70 F.Supp.376 (W.D.Pa.1947);see generally
17 C.J.S.Contracts §184 (1963).This well settled doctrine,
founded on strong considerations of public policy,renders
inapplicable the general rule requiring an affirmative show-
ing of fraud.To the contrary,~~tiQns~tween persons
~l confiden~ial re13tiopship ar~facie v9i~e,
and the par~eklngto benefit from such a transaction must
demonstrate that it was "fair,conscientious and beyond the
reach of suspicion".Leedom v.Palmer,274 Pa.22,25,
117 Atl.410,411 (1922).See also McCown v.Fraser,supra
at 564,192 Atl.at 676.II
11 'It is impossible to define precisely what constitutes a
confidential relation'.McCown v.Fraser,supra,327 Pa.
at 564,~_,Itis not restricted to any specific
association of persons nor confined to technical cases of
fiduciary relationship but is deemed to exist whenever the
relative position of the parties is such that one has power
and means to take advantage of or exercise undue influence
over the other.McCown v.Fraser,supra;Longnecker v.
Zion Evangelical Lutheran Church,200 Pa.567~
(1901).Accordingly a confidential relationship generally
exists l!between trustee and cestui que trust,guardian and
ward,attorney and client and principal and agent!l.Leedom
v.Palmer,supra,274 Pa.at 20/H¥-l~~'~"
1-//J II ~Lochinger vs.Hanlon,348 Pa.29 (1943),is in many respects similaI~~¥u.~c to our case.An aged parent added a child's name to a joint bank account and
I~.~~the Curt denied a gift inter vivos,finding a confidential relat~shi~xiste~,
t:.nd that the child had not overcome the pall of undue influence.We believe
He offered no independent evidence and his testimony was confusing,
and even of doubtful credibility,in part•
.
Katz vs.Lockman,356 Pa.196 (1947),a parent-child gift case,
the Court found a confidential relationship and disallowed a claim of gift.The
Court said:
-15-
"Transactions by which a decedent shortly before his
death practically strips himself of all available property
are naturally regarded with suspicion and are to be
scrutinized with a keen and somewhat incredulous eye".
(and cases cited).
In summary,we believe there is no competent and sufficient evidence
of a gift from Emilia Novi to Gino after her arrival in his home in early July
of 1970.Accordingly,the Court is urged to make absolute the citation and
to return all funds taken from the Emilia Novi bank ac'counts,that they may
be administered in her estate.
The Court is further urged to direct that a personal representative
other than Gino Novi administer that estate.Ris prior conduct seems in-
consistent with his duties as Executor.
PEACOCK,KELLER,YORE &DAY
-16-
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Peacock Koller Yohe &:nay
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70 Last Beau St.
1"I'-:,shineton,Pennta.15301
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",.'..,Enc~osed is a tn"leh~ne:ow of a ,signature carder t.'te 1r.el1on.Kat,~o~al,'Btun~.~tfl ,.""..
l'rust,'Coraapn1,that halJeen.~dJnittgd as an exhibi't1n -the CaS€)()t ,~'·,;t"iShinntor~"..,<-
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IN THE COURT OF COMMON PLEAS OF W~SllINGTON COUNTY j lGf:;NNA •.
ORPHANS'CO'ttRTDlVTSION '.,,'
Estate of
EMILIA NOVI,
Deceased•..
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No.""'-_1,of 1971
ORDER_I !
AND NOW,JU1,23,1971,upon eonslderaUon of the fo%",eqotng
peUUon,it is Or<lered and Deer$ed that a Cltationbe awarded,directed to
GIno Novi,to shQw cause 'Why he should not return to the Estate of EmiUa.
Novi,the sum of approximately $17,600.00,recently on deposit in the
Mellon Natlonal Bank and Trust Company.Fifth and Grant Streets Office,
Pittsburgh,Pennsylva.nia.",hleh 8$.\(1 account was titled in some form of
joint ownership in the names of Gino ~ov1.and ErnUta Nevi and the moneys
tn sald account be~nq the excluslve property of EmUta Nov!before her death
on March 26,1971;Citation returnable to Wedoeeday,September 8,1971.
at 10:00 o'clock A.M.;hearing-on same.to be held I,l.t same ttm$on Batd.
date in Orphans'Court Room,Court Bouse.'Washington,Pennaylvapia•
.,By the Court,
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IN THE COURT (F COMMON PLEAS OF
WASHINGTON COUNTY,PENNA ..
ORPHANS'COURT DIVISION
No.63-71-759
IN RE:
ESTATE OF EMILIA NOVI,
Deceased
l
~3:I \iil en n ".,
1IJ C ~0c-:z:tI -i >-
"~:;<~t"4 ,PRAECIPE FOR APPEARANCE. 0 )0 :::Et:J~~;0 °and,•~~Q!c..i ANSWER TO PETITION~;>;~~1IJ Sl>enti:
>SC/lolf
Z r -l "11J;l::I
:;;:2 ('TI >....hereby certify the within to be a
iii ~l!!:cs true arl'oct copy of th.!-lltiginal
:('TI PI filed in tLis c se.
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RONALD J..McKAY.ESQ.
LAW OFFICES OF
McKAY.ARCH Be STEELE
SUITE 302 FRICK BUILDING
PITTSBURGH.PENNSYLVANIA 15219
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IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY,PENNSYLVANIA
ORPHANS '.COURT DIVISION
IN RE:
ESTATE OF EMILIA NOVI,
Deceased
)
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No.63-71-759
.PRAECIPE FOR APPEARANCE
TO:BOB A.FRANKS,Prothonotary:
Enter our appearance for Gino Novi,Respondent in the
above entitled case.
McKAY ,~M:oA-QL.STEELE
Date:sePtember~,1971
ANSWER TO PETITION
AND NOW COD11!!S the Respondent,Gino Novi,and answers the
Petition filed in the above captioned matter as follows,to-wit:
1.The averments of fac~contained in Paragraph 1 of the
Petition are admitted.
2.The averments of fact contained in Paragraph 2 of the
Petition are admitted.
3.The averments of fact contained in Paragraph 3 of the
Petition are admitted.
4.The averments contained in Paragraph 4 are denied as
stated.It is specifically denied that Emilia Novi maintained an
account at the time of her death in the Mellon National Bank and
Trust Company.
J
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s.It is admitted that Emilia Novi left a Last Will and
Testament,which is in the possession of the Respundent,Gino Novi.
The Will has not been offered for probate for the reason that the
decedent was possessed of no assets at the time of her death.
6.The Respondent has been advised that the allegations
contained in Paragraph 6 are based upon conclusions of fact,con-
elusions of law and conjecture.For this reason,Respondent has
been advised that he need not anSwer these allegations.
7.the Respondent has been advised that the allegations
contained in Paragraph 7 are based uponcconclusions of fact,con-
clusions of law and conjecture.For this reason,Respondent has
been ad~ed that he need not answer these allegations.
WHEREFORE,Respondent prays your Honorable Court to
deny the relief as sought by the Petitioners and to dismiss the
Petition,with 'costs to be borne by the Petitioners.
McKAY,ARCH &STEELE
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COMMONWEALTH OF PENNSYLVANIA )
)ss:
COUNTY OF ALLEGHENY )
BEFORE ME.the undersigned authority,personally appeared
GINO NOVI,who,being duly sworn according to law,deposes and
says that the facts set forth in the foregbtgg Answer to Petition
are true and correct to the best of .his knowledge,information
and belief.
/s/Gino Novi
Sworn to and subscribed before me
this 7th day of September,1971.
/s/Patricia J.Mantia
Notary Public
My Commission Expires
April 15,1974
I.'~
UI THE COURT OF COMMONPLtAS OF '~AGBINOTCN COUNTY.PENNAo
ORPilANOt COURTDNlSION
tNRE:
Estato of
EMILIA NOVl,
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No.7ti9 of 1$71
Q P t H.t..9 Ii I
tmUla Novl,t\tlldon sg04 70,cUed March asp 1971.Sho bnc1 0000
uvtng ~ltb her son..Gino,nenr \l~aahln\fton,Po..'Her huobanc1 <1t~DOinG 15
years befoJOo.YJnUo they ~iGrO ltvb1f tn,Pittsburgh.Upon hln 4entb,abe
became entitled to tbG bolOnco In Q.banh o.ccount h01.4 by the ontlrottoa t"Jith him•
.i\t her lnswtanco nhc tina bar 000 Otno NovI,roopon<lent horoin,
'VIon1 to the GQtd.bonk (Mollon Nntlonnl Bantt and Tt-unl Company.UntOQ Trust
Office)on P'ebnter11G,I 1968.nnd.on sald.dato openo<1 n jotnt savlnqa c.ccoant,
No.13-18'2,mtltttn;nn Inttlal dQ~ostt of the oum of GG,as~.52.Tbtt1 'rJ00 tho
amonnt romalning tn tho ontuottoo o.ceount,t1btcb abC!<:1000<1.The bonk
tlt;nal\1l"e enrd providod by tho :Sank statos tn relovnnt p<)rttot'l:
AGREEMENT BY OTHER THAN HUSBANtl AND Vi WE
ESTABL13HtNG A ;fOINT SAVINGS ACCOUNT
.\1,0,the unctG?Dlgnod,l'lQreby opon &,otnt d~pos1t t\Ccoant Yltth
MELLON NA'rIONAL BANI(AND TRUST COMPhNYJI end jointly and BWOrQU,
nqrae t"JlthrespQCt therate 0.0 toUo~:
A11 dopoctts now or boroeftor modo thorctnshnll bo helt1 and ot"Jnod
bV un no JOINT TENANTS t!ltth tho rlght of SURVIVORSHIP,and not ootonatlta
In common,and \"lith tho UMQ%'OtlUldln.g and tlCp'GOmont that upon tbe dentb of .
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otthor.tho survivor shnU thoroupon be tho 0010 owner of 60.1d aecount nnd.tho
betoneo etatl41ng to tho crodtt thereof;th1n Dfl"oement Shall bo tormlMtod
onlJ by tho VlUhdrn'riol at ntt tho menton tn oo.td account.
As n mntt<n-of convontence to \1B Onll nn4 not 00 \nvnltdntlnq thto
lOUiT :ESTATE,tbo monton in nc.tcl o.ccount sOOU,subject to the ruleD of thG
BnD.1to bo VJtthUnt?eblG at n01 tUnG Qed from.tb~ull to tUneb,eh~ek:or o?4w
of t'Jttbdru'fJal signed by Qlthe~of us;tho po"Gr and authority grant04 bOiotn
..
to caeb of us to sign ehoclro or or4.ro of wUb.4ro.\"Jcl ngnlnst oatd neeount mnv
bo revokod nne tcrl'.J11nnted byolthor of ua by MlttQn collcQ to aald bnnlt to
thnt offoct~upon rece{pt of ouch t'GVocatlQQ b1 tho Bnn1tt nU check.o't ordero·
of t'11thdro.uQ.l shaU thorcnftQl"roqutrotha clg-naluros of both of us.
In V.1UlCGG V,"hereof.t'JG have hor(llo sot our banda and Donle thta dnto Fob.19,
1958
(.
Lot,Emn=~..:.;.~zOVr.::.&__L _'__-.....($001)
_.L...()LS~G;,;:;;,;t...!!.2_-..;;:L;,:s.!_£!2Y~-w1o-.__,.__(n~nU
MELLOr~NATIONAL :BANK ANC T1.-<UST COWANY UmON TRUST OFFICIi
PQttttOtlG't's,Bo.rr,Nov!nnd JOGoph Novl,brothenl of the rooponclQut.
ebnUonqe tbe vBUdny ond togal dfl.ca.cy ot tbtD ngroomont onocutod morotbnn
IS ,GtLrO prtor to tho flilo\"{of thetr potlUOl1 boroin.Tttoy cUCtJQ va.rto\\O
grqun4s tn support of thto eballOGgo.
Ftrsl.it is urged tl'mt the banlt agreoment.u set forth on tbe
stgnnturQ card.,does not aho"a vnltd intGr vlvOG 91ft of sald account from tho
donor,EmUlQ Nov!,to hel"non itt the form of no Joint nccount "Ub right of
Burvlvarsbtp.AdmtttQd17 the tGspcadGnt bo.£l-tho Initial burdea of provtne a
vnlld into!"vivos gUt,en~Duell proof to-ooto.bUohed 00"by ovtdence VJh1ebts
clcflt",<stroot,precise Qnd convincing:.§!S1).!;X §§~4.07 PI..162,167 Ur:.(2).
~!fI !-~39~Pt\.300 (1958).
..•
Inth1liaroo.of tho InVlt certain t'JeU-settled prtnc,tpl.~G ~Quut:
(1)tn the nbsOQco of fraud.acei.4ent 01"miOtQkQ,fJhGft n peraoncronto;a 10Uit
&$Qvtngo aeeoont t'Jtth the right of favvtvorohtp t 'aa4 Q;8tgna.t~O ce.r4 ;0 otattfif
tB weelltct b,bothportlOO.,theDO facts oonstitute prbno.facie wtdonceof n
gtf~tmor vtvoe bl the do~sltor (",hose funds are used)to the otbar person
(~bc,conb:tbutoG nothiuq),and of tho ereo.tlon Of a Joint t$naney with rtght of
IUlr11lvorshtp:~375 Po..~~.(19&S);(2)ln the nbsence of
aUG\jCfl1ofProveQ ftau4,acetdont O~m1stnke,It thG "O.-41Q9 of the slgntituro
cmnl rweo.w the lntent of tho depositor \'1tthout ambtguUy,perot evtdoQeo to
IJbot'J a contrary lntout ta lnndtnlsstble;lt fti3m Ute ~ordln,of tbe "rtttngs
the tntent 01.thQdefjOstto,.-appoars lndGflnlt$or ur.teortain or e.mbtguous II tho1\
r~rol evtdence II admlSJ3tbJ.e:.A~o9l 'a~\i,SW POe.ael.2&i U969);($)
"henn prima tncte CMo lIM been madQ out,then tlle burd()Q of proof abUtn,
Qn4 toeunw,ln sucb burdotlthe oold.enc_muot be clear.1:;1:00180 "d conwtneb)'3l
iillYfll!te,~~Pt\.205,ill 0.961).
\\Q pOi'mlttG4 thQ tntrodGCtton.tnto ovldonce.by ~.,.of eross-
oxmmtnattoa of r'eapondont,Of or-ttl tootlmony to abo'\?t.bAt,t)hQ6 C$ocedGnt
crMlcd thtl Joint savtngs ccoount tn 1958,no gUt t"Jaatnt<andod.The qovt
cou14 "va refuG<Xi this prtvllC9'of M tbo \"Jl'ttton nwroel'.Q.tl)ot nn4tJtqnatvft
cord compare favorably mtb that used in ~~~cnApra,an<1 ~
406Pn.~~~(l96a).
But the te.tlmOQ7 on croos <mamtnatton was oot9017 l'evealbl',tt
belag'lS "eara Glnee tbQaccocnt \\IU opon0d.aeSpondQnl cou14 bw'd11 be
4m9eclG<l to recoil ndnor detatw of thG oPOtltnf of thIS account 13yeara later.
.lrho account.\'las opened 'at thQ tnatat4tllCe of the doCe4ent.Fettttoaera kft~
alan UDloa that l~provltiedtor rl\1bt of aUfvlvorehlp.After atm.oat t<an leats
one of the ~tntonors ~entto thQ bonk with bte mother to makE)a 4Gpoatt Of
i5000,th$prOCEI$dS of the enle of ber home yrOpGl"ty 1n ,P1ttsburvh.v".•are
--------
.
une:blo to deduco fi'om thte teattmou7 thnt thG 4ccGCiOnt erco.l04 tho joint bnnlt
,
account only to.,tho PQi1»OO of oQUatiog'tho atd of har sou Gluo to.4rnV1tne
ehsclw tbnt ohe 4e.atrGC1#an4 t~Gino bod no prcncut tnto?oot In tho nccounl
but ViOO moroly to bo ontltled to any balance;)i'omatntQ\}nt boi'<loath.Tbo only
pOi"son -abo tntorpretG4 tho bcnk c.groomQut cnf'ca tll tbto foohlon ?lao th<a
potlu.onorJ !iaff'.
Tho c~lm of potittonars to that decedont.Ct'eatQd tbo jotnt bnnlt
necount only for bar convenienco to 'pli)"bor curront bUts and that sbo onlY
tJoutcd her 130n G1no to have tho monoy If Gny romatnGd nt.her d(Jo.tb.Evtdeuco
woo lntl'odueod concerntng hQf loabUtty t)·spent en4 wrtt$tn too EU\Jllah
lAnguaqoD!no trJeU fiS tho procorlotw condition of hor houlth for teIo or throe
roo.ro before her dentb tn 1G11.Such tcaUmony wna not very parouoslvo.
t:eeoc1ont apOkQto nolghbors b frto\l(1O and nequalntnncQQ tn f.£ngtlab ena novo?
,had any trouble.Only one of her chtlCll"on could apcnk Itat1en,00 shQ he4 to
COnVQfOO t;ltll thQ otllQfO mostly tu En«ltDb.aha was rlQt clcpon.c1etU upon Otno
UlltU chortly beforo he?(1ecoeoo..
IJurtnq her lUettme lVJ:rs.Novt mnde n numbo?of depoattato thta
account;o.t tlmGn ahq ~OrJ nceom5>nnted by ono of bQ?chltdi'ODD at othorn
sho rotI 0.1000.1I1rs.Novl nwo rncdo t"Jttbdro.~o.lO from the account 00 vorlouo
oooootOI)O.1u 1007 sho e-tthdlrOT'1 groo nnd $100 on dUfE:i'ont dnte$.In MQ.rob
100801'&$ttJtthdre\".1 $100 £luo tho nom mouth,oeeomptmled byhGJ'.(Jon Barr7
(on0 of tho pot1Uonors)abo t'Jtth~oVJ th0 tl\1I2'1 ,:1 Cl000 and 't'Jltb s~td num
opened 0.1'1 tlCcount tft tho "BUltop Eanlt"VJhtcbweo n~her hOJ;qe and tib1ch
Sh0coutd 000111 tnQ.tI11tJO to t.:nlh to.Tbtn account ~)OO n Joint nccot.\nt Vltth
her sou Hnny.As tGDtlftccl bl bim,Mro.Nov!\feUd her Ot"Jtl bnnldng.n \\'0
tntor&rert tb.nt to mean thnt oho could,and diel,on occootono go atotlo to tho
btlntt to malto c1Gpontta or t"JlthdNtfnW.
,
It t"Jould nppoo?that M1?o.Novt t:Jno t'Joll nble to handlo hor balilttng-.
In ltD vertot11J pbtwC*l.Sho hod no {.1bvo1enl dloCbUUy 000 her health fGmnlc04
good unttl tbo lnot for-I y€at'o.Be?Getgbboi'"u~:p 'ltQtte4 hoi'tbrro or four
ttoes nYicolt.roto.t.c4 hotJ Mra.Novt l"JOUtc4 to church ovo'i'1 mO?Qtng at
6:30 t'/i,theut any ntd of o.Dl·ltlnd.Joot n fOT}yo.ro eftw tilo ortgtno.t nccount
\"1OD opon$dp sbotrnvo1ctlp \\tmCcom~oo,to nat,for Co vtclt to her btrthploeol'
tJttbol.!t incidont.
This 10 hor41y tho tyVC of paroon t:/booo bnCl~ground wu14 Duooeot
tho nocooslty of posoeJoln\'}n banlt CCCOUtlt 1n Joint u.nmo~simply tor tho
CO""v~ntQneo of mnlrtug c1o-iAlOlto o.nd 'tJUbdrnwOlQ for tho bendlt of the other
~
joint tonnnt.\bus fouClor-lnq It pooo1bl0 for tho otelttr or'disabled Joint tenaut
to en.:ry on tho norrnnl bnntdnq c.etlvtttoo t'Athout OPliCtlttng ot tho bank.
Bor;ooor"potlttonoro till'lntoln that n cQnftc1cnttnt l"clnt1onob\~ometac1
\XiJttJGGO w~ro.l~ovl and the r00pondcnt,thuo plcetng t,bo burd.on Oil bim to
prove tho.t tho inter vtvoo gUt \JOB u~ected bV tln(1uo toiluonce or lmponltton
.or 4OC¢'f.,~tont It 29n V,GJ!eg9,&365 1=(1.300 (1953).Such rolattonobtpmust
bavo entatod.at tho very UraQ of thG opomng-of tbG subject c.eeount.Thora to
ho.i'cU,.a \".IO~d of teattmony from 'Ohteh onO could C104uee eucha roJAttonoblp
othor than tho blood rolnttoMhtpof mothor and chUa.Eut a eot'1f\dantt£l.l
reltlttorwbtp 4003 not erlDo maraly from tho fnct of femUy rotnt1orwblp~and
in coooo of gtitG lftter vtvoo bct~ocn pnrout and cblld tho va ttdltf of theglft
to pro3uxned.until OthCWt'il$Q.provod.TtlorO tn 0.proswnptton of fo.truoau and
not of frt\u4:H(lQ~~g,JrJl!qt.~815 !:In.230 Ue3<l).Tho mot's ontotcmca of
lttDDhtp doc3 not,of ltcGlf.9lvo rioe to conftdenttt:.l1"olatton:£l!i'~.l,~1Nlttl,
1"~POi"SOBt 830 (lege).
nts o.t:-pnrent thct ouch 0.!"olottooohtp dld not ontst In 1958 TJhen tbe
bcnh C!!count wos oponed.\'nether ono ontctcd oubaoquontly,~G find.U
unncccnoerJ to rulo;000 noc:d t!:)t ohotJ lbo tntoot of tho dGyOoltor every Umo
.,
)
:1
.-t.
n nou 4QPostt ts ·mndo to 0\1014 oeeount.V~'o might ObC0rVO that t\oubtJtnnttal
depoalt ?Jas mndo In 1000 uhen Mta.Novtoold h=rrcsldocc:o.At that tb:no
abo dQpt)oUQdln tbtll nccount thoeum of ~6000.ShG fino ~companl$d to tho
bnnlt oJ hop DOn Barry,ono of tho i~t1ttonOflS~end not by Gino.
Pottttonero complain col tbe court futtnq 11?t tormlttlng them to
Introduco tsatlmony coQCQ?Qtng tho t"'l1l1 of thG dcccaoct and bar bus~ncl.Thoy
amlm tbnt thG t'/tu dlJ3etoaeo 0.t"Joll<:(ioftn¢d plnn for tho dtopooelof thotr Gato.toll
end thnl tbo ontnbltobment of thw cecount conl?avoned tho terms tboreof.Eut
tho fo.et 10 tbnt nU ~JO bnvo to n '\"JUt 4tapgolng'of the cstnto oaaots oqunUy to
the chUc1reu.'thoro Is no ptnn,~ouch,that to dlaruptetl tn eDf YJn,."JIll.mto
evor nooota the 09tt\to bac II aro to bo dlcb'tb\!te4 to tho cblldron tn equal ahnrcs 0
Nothlnq lntoriOi'oo t'Jlth thQt dlopoDltton.It coul<l lW'Clly 1,,0 or9UQd GOrloUD17
tbet no roBOts may be dlBp'Oocd at simply bccawJ0 tl \?tlt boabGon onccute4
mt\i.ttng cqMl dlstrttnattoft of an QStateemoug thoob.tldton.
In Guppt)rt of thGtr theory pormttttng such toDUmOD't p<!)tlttoOGi'lJ
ette 1rjgjll,i!~SP 80 DnupMn 308 (1008),t'Jhoro tho huabnndad.ccoc1Gut had
purcboccd cortain otoctt tn bwon4 hw -r.rUot,nnmea.In hill ?JIU the bW3bend
Bttomptctl to disposo of the stock aa n togncy.Tbo court held tho.t tho buobat'!d
tiM otmply mtaWlton 6C to tho o-eoorohtp 0.lu1 bot';tuted and thnt tbto hnd no
c£fcct ohatovo?on the tnt~·vlvos9Ut to tbo t"Jlfo.'V.e foel that th1D caso roan,-
Bupporto our hotdlng rBthGl1 thnn \110 lbcorYPl*Opounded by thGpotttlonore•.
000 oth01"mottOr should ongngo oDrattonltol1.Tbs l"l3Cord dlscloocs
that.on NovornbGr all lt70:Gino !~vt "out to tho ~nL:.(,;.c4 t'Jithdro",th3 QnUro
bD.leoco In thts eceouatp 0.oum ttl onec:;m of €>l~~OOO.t.\lUi thkl monGy 1\0 mc4Q
c$rtatn loU'oGtmQltIJ ot anothor bank (cortUleoloo oi dopoottb nnd oponod.BGOthor
snv1n~o.ecount 'DUb tho bo.lonco,both betng 111 tho Dttmec of h1moolt and ~lo
fJUOp eacludlnt;J blo mother.Bo tcstUtod:•••ot could have ottb4rnttJo tblQ
mono"onJllm~~but I d.tdntt 0000 it.n
.'
,
J,.--,.
Wbeth01 thlD ttJlth4ro.~Ja.l "Jon proper and.va-ltd \"J0 QrO not catted upoa
to docl4a#end t"Ja do not hore dacldo.Perbapa tho qucstioulamoot,ctneQ
tbe mOQGY 'fJOO ovetlablo loi'l.Mc.Novl'tl QOcde durtng the reet of her Ufottmo
Qnd for h~funeral onpcnoco.Mr.Novl teot tiled tbnt thQfUl1d 'tI/BS Y.,tlthataYin
tot"tbe purpose of soeurlng a h19ho?interest ttetQetsotJboro~lIo 4td not
.QJlp1Qln why bo mntto thQ sold.doposite tn thonamoa ot htmSQlt and tdtG rathor
then btmao1f flue bte motbor ,tho form ot the orl91nnl c.Qcottnt.
'We contQCt oursolvco In this eltuatton 'rJitb Lbe obaorvntlon tbot a
joint account mL\y not logally be dtoolpatcd by ouo of tho joint tonnnta to tho
,~atrtrnont.of thQ remalning j01at tcnnnt t;Jttbout 0.lGGtttmato foatlon tor tho
utthC1rn~tll of the onUr$bnJAnee.
Insummni7,we bold tbnt tho bank o.ccount in quooUon ~no p.-oporl,.
ae.~\tlj in 1958;that thorcspond.ant hwJ bJrcvod a prima facte lnter vivos gUt
~roii1 tbo decedent at that timo.rho ntto.elt on tho va.U6tty thQtcof by the
&1cUtlonor&1el1£)bOCnuoa tholr aUGfJ8.ttono ero not QUfr;ortod by evldIJnec uhteb
Is cloer,vreelGonnd cOQvlnclng.'lb.e poUlton to thorefoX"G dtsmtsoed.
'Sy tho Court,
lal P.V.Mnrlno.
titlj I I b t.lIt·'_1 I U I¢d
%NTHE COURT OF COMMON PLEAS OF \t:ASHINGTONCOtTNTY,PENNA.
ORPRANSt COURT DIVISION
INRE:(
)
Entate of (
)No.769 of lij71
EMILIA NOVI,(
):-
Deceased.(
OPINION, F
Marino,1.June 30.1972.
Emtlta Novl,a t'Jtc1oVI o.god.79,died March as,Hi71.Bbebtl.d been
l1vlnfJ rittb hor son,Glno,near V..ashlnqton,Pa..Her buoban<t c1te4 aome 16
fears before,t'Jbllo they werc ltvtnq tn Ptttsburgh.Upon hto dao.th,she
became entitled to the balanco tn a bank account hold by the entireties ~Jlth btm.
At bor insistence nhe o.nd hor Don Oino .Novl,res;»ndent herein,
weQt to the sold.ba.M (Mellon NaUonal Sanlt nod.Trust Compan"Union Trust
Offico)on Fobrual'119,1958.and Oft said dato opened Q joint ittvlngs account.
No.13-182,mt.Udng an tntUnl e,loposlt of the oum of $6#83~.52.This t'lQ.S thQ
amount l"GInQlntngln tbe onttrottea aceouat,ttJbtcb she cl0Ged.Tht baftk
signature curd providod by the Elilnk states in relevant porUon:
AGREEMENT BY OTH!R THAN HUSBAND AND V/lFE
ESTABLIDHtNG A JOINT SAVINGS ACCOUNT
V"o.the undGrtJlgnoo.horeby opon a joint deposit o.ccoant witb
MELLON NATIONAL BA.NK AND TRUSTCOMP/i'NY,'nnd jointly aad severally
agree ~tth roopect theroto 0lJ 1011000:
A11 depoSits UO'O or heroaftor mo.de thorein shall be held and ownGd
&7 us as JOINT TENANTS \YUh tho rtght of SURVIVORSHW.and not f1Q tenants
In common.and t)ltb the undorotandln9 and ngreemcnt that upon tho death of
~.,
outter~tbu·survivor shhU thoreupon bo tho Dolo ottJner ·of Bald nccount nnd.the
,
bnlnneo ntandlng to tho credit tbarcnf;tb1s agrcoment shall bo tormtnntcd
only·by tho vJlthdrn~al of nU tho montoo to ontd nccotu.1t.
As n mntter of con'1onlQnee tD uo on1"aud not t\8 tnvalldattnq this
JOINT ESTATE,the montoo in catd account ohnUD subject to tbo rules of tho
Bnnlt,bG'OltbdrntJeble at.any tima and ftom tlmQto tUnG by cheek OJ:!orc;lor
01 t'Jttbdraf'Jat slgtted by either of us;.tho po\"Jor and Quthority gt"nntod horeta
to eaeh of \1S to ot9O chocks or orders of \',UhdrnvJal eplost 00.1<1 account may
be revokod nnd terminated by elther of us by written notice to entd bonk to
v
thnt effect;upon receipt of eueb revocation by the Bnnkf all eheclta or orders
of t!ilthdrnt"Jal shall thol'ootter requlra tho st<Jnatures of bQth olue.
In V.Unoss \;'hereof,~G have horoto sot our ha.n<b nnd scnls this data Fob.19t
lees
Lai.9t02 ,~I Noyl ,.(SeaU
MELLON NATIONAL BANK AND TRUST COMtANY UNION TRUST OFFICE
Pet1tlonera~Bo.t1'yNovl nnc11000ph Novl..brothers of tbe rQSpondect.
chaUenqo tho vaUdit,.ond to;al effleacJ of tbtc ngrecmont eRGcutG4 moro thtLn
13yo.ara prior to tbo iUtnq of thGtr p4tltlonhoX'otn.ThoVeUogG vartouo
~unda tn support of lhbJ cheUoc\lO.
FiratI it is lWgod that the bonk agreement_QtJ Got forth on the
stgnntura enl"d,does not ahot'}n valid inter vivoo gUt of said c.eeount from the
donor.Emilio.Novt,to her QOO tn the form of 0.joint account \!lith right of
ourvlvorahlp.Admittedly tho rQopondent bas tho initl.al burden of provIng n
volld tntor vtvoo gUt,end ouch proof to EitJtabUabed only by evidonce VJbteb to
clGar,diroct,precise nnd.convlnetn9=§!AAa &~407 Pat 162.167 Uge2h
£l9!f,~Ug v.§elt,z"502 Pn.SOO Ug68).
-2-
In this area of the .law~cortain treU<oS.uted principles ue ~unt:
(1)10 the absQQcGof frsaud,acc1dent.of:mltJtQke,9lhatl a personerentGQ ,a Joint
Gtl.vtuqtJ e.ceountV:lUh the ?lVb.t ot QurvlvorDht~1I .un4 a alquatuG card 00 atatbt9
is ~ocu:t04b,both pnrUG&,thooe fQcts consUtate pr~ftit41a evldence of 0.
itA tnt(l)r vtvoa bJ the doposllor (whooe funda areued)to the other person
(<wbocontrlbutes nolhluq).and of the crention of aJolftt tenancy ",ith right of
.survivorship:liElta:n191S-,gHllt.875 Pa.486 (lfJ6Sh (2)1n the e.baence of
'aUeqad or proven fro.ud,acetdem o~ml.stQko,If tho ,",ort11ng of tbe signature
car4.revea.to the Intent of tho depositor \'1tthout amblCJultJ;parol ev1.dQt1ee to
-
."'how c contrary tntQQt ts tno.~m1aaible;if from tho YlQttdlng of th<t "rlt1ngl
the lnlQut 01 tho depoottor appenre indefinite ot ufteorlain or ambiguous I then
parol evidcnc$-is adlni,uilb1e;.f-SQ.i$~tq,301 Pil.2e2.264 (19&9);.·(3)
'tilban _prima tnete CQOO boa beec mad0 oUl,.then tb.G bur4an ofproot abUts.
,,and:to otWtnln ouch burdQQ tho QV1dellcQ muot be elen:t.preciso and c:orwlnclnga
I,gZD&;It&l9"~Pe.205,211 (1961)•
.\\e pGrrnUtG4 U\()tnt?oduetton tnto evidenco.b1 TJBy of eros1-
emmlne.tton of reapon4enk,oi oru,l testlmouJw Iho\V that,\'Jb~ti .deee4tul
cfeo.tOd this joint st\lJtO\}Q nccount tn 1968,no·gUt."'8 lntOQd~.Thecoaart ....
could oove refuaGd tblQ prlm.1G\l6"ae the 't'r-Uton oqroeD.'1(lct and otgno.tufa .
card co.mparQ tavoX'nbly ttltth that.used in ~mQ9Efli!tlt.&.tsupra,and ~
.ro6 Po.4&1 U.962).
Eut tb.e tent1m<rnlJ on orona enam,lnatlon was flOt vorJrlVGaUnlt,it
be1Q9 IS yeara Dince the account WU openod.Respondent could bnrd1l be
eap6otod to reeal1mtnor camUs of the opening'of this account 18 fears later.
ThQ account YtQS oparmd at tho insistence 01 the cocedfmt.PetltionertJ kft6VJ
at au times that tt provl~ec1 tOl;'right of 8\U."vtvor~hly.J~fter almo8t teQlears
ono otthG petitioners V/entto too bank V/Uh his mother to malta a 4epoelt of
G5000,the proceeds of the 0010 oiher home propert,1n Ptlt.lburgh.~6 are
---------------------------
,,
• J
unable to dedueo from thts tssttmouy that the d~edont creat$d the joint bank;
account only tor tho purpooe of aultottn(J tho old of.har son Gino tn arn\YJtng
checkS ttmt abe doslrOO lI nnd that (Uno bnd no present tnwrost In the account
but "Jan merely to be Gntttled to nny bnlancG romo.tnloq nt.her 4eo.th.Tho only'
pGrson Vlho intorpreted the bno ngroomGut eord in tbtsfaoblon ~ns \bo
pGttUonor..Barry.
Tho claim of pGUUoncrs Is that dooodont Cl"eetc4 the joint bank
account onl1 for her comrentoncG to pay her curront bUls and that aho onl1
vJnntod.her son Gino to haVG the money if any romained nt her doatb.Evtdencc
'\'las introduced concerning her Inability to spenk and write In the E.nglish
lang\laqe.as !'IsU ou the procnrloWl eondttton of bor health for WJO or throe
J<Jtlrs bGfoto her dooth tn 1971.Such tesUmony VlllG not very perauaalve.
~eeedont cpo1t$to llolghbors p frtondU and oequalntanccs tn Englisb and novO?
had any troub10.Only one of her chi1dron COU ld si-oQk Italian,00 she ba4 to
eonverOG \\11th tho others mostly tn En«11Db.Sha wes net 4epaodent uponGlno
\1otu Ghortly before ber d¢ceaso.
'.'Curing her Ufottme Mrs.Novt made a numbat of <lepooltn to thta
account;at ttmen aho was occompnn\ed b1 one of ber ohUd.r0n~at others
aho'tins nlono.Mrs.Novi o,lGo medo t'Jttbdrnt'Jale from the neeouat on vnrlous
occnslonn.In 196'1 she wtthdreVJ 1)600 €lnd $100 on dUfel"out dates.In March
leG8 she ~1th*<;reJ~100 nnd tho nom month,c.eeompanted by her son Bo.rT1
(one of the pGttttouo?S)aho withdrew the sum ~f $1000 and with setd swn
opened o.n nccount in the "mlltop Bt).clt""bleb.was near her home and t'Jbtch
she eould easily mannge to wnlk to.This account \"Iat;l a ,oint account wtth
hereon Enrry.As testUIed.by him,MrG.Novt "did hEIr OVJl1 bnnktng.tt V/Q
interpret that to mun that oho could,and did,on occnntOflG 90 alonG to tho
benk to malta c:1epoalt5 or l",lthdrat"tnlO.
..
I
"
.'
ttfJout4 appear that Mrs.Hovt?lM \'Jen nbloto hQ.ndl0 her.bQtitdng-
In ttovt\rtous phaaes.Sbe bad no pbJ@lcal dkJabUtty and bot"hoaltb rematnQ4
gooduntUthelaat ~0't'J 1e.ara.Ber neighbor,who vlsttedhQr tht'"ee or four
Umesa "oelt,roto.lGd.hotJ Mrs.Novt wolltt!d to church wQr1 morntll{f at
e:30ttrlthcu~any aid.of au,kln4.last a gem 7etarStlfter the ortginal aecount
nOS opIned,she truvelod,\U'Uf.Ccompenled,to ttA"for o,vlslt to ber birthplace,
,t'iltbout Incident.
,This ta hardly the typ0 of persoft whoso backQtound t"Jould suggest
tho neeesstty of possessio"a batUt o.ccount in j01nt nameeslmply for:thG
eonvQn1,nee of maldng dtapOstta and fJlthdrawala tor tbebatieflt 01 the other
jolnt tenan~.thua rGndo?~t19 tt ponstblo tor thG slddy or <1teabled.,olnt tenant
to enrry on the normal banktnq acUvltb'lilG withou.t t.p~-etlrtn{J at tbs ,banlt.
B'o\\tGVGt,petitioners melnto\a that aconftcGntbtl tolntlonohlp cdstod
bQ~/een Mrc.Novi and the re~pondont.thUG plActQ9 tbe bu.rdG1l on him to
prove tbOot tIl.inler vivoa gUt \7]8$uuaftGCte4 by undue lnflu.once or lmpom1tlotl .
or d.t3cepttOtl:lOgQ,V.IQtR9.9.t 365 Fa.868 (1963).Such rt.tlatlonohlp must
bew.ctsted nt thQ very tlmQ of the oPontnl of the subject llCcount.Tberets
hardt1 a word of testimony from \'Jbtch ono could deduce Bueh 8 relationship
other Ulan the blootl rolationship of rnotbQr o.nd cbUd.Eut a eonfidGnttal
relatlonshlp does not arlaomerelyfrom th<:J fact of mmU,rG!lattonsl1tp.and
1n ens.of <'fUts lnter 11vo$1 b~t't'lloon porent andehUd the va lt4tty of the gUt
te p?«1umed.,untUotbEtrWts~provf;(l.There is.0 pr$$umptlou offatnes$and.
rtOt of frQud;·I~!~·a §!ta1i&816 Pc..238 (1934).The mera emateftCQ of
ktn,Shtp dOe$not..of itself,give rtae to confldontiaL rolatlon:glarkv,ClIt!Se,
,
11~Pa.809,sse (l896).
.It is apparent that auch 11 relatlontlhlp dtd not rsnls\tn 1958 wheQ the
benk a«:ount wee opG~ad.\l;bether one entsled subsequentlJ,Vie find tt
Qnn~cooanr,.to "lei on0l1ead.ngt oho~thG Intent Of the dQpoaltor tWG'tty time
>n new deposit 1&made to no otcl account.We might observe that n aw"stanttal
d.epo.ett was mad$in 1966 V1heo.}lArs.Novt aold.hGr l'08tdonce.At thn.t timo
sho 4opooited tn thls tlCcount tho oum ot $ססOO.Sho V',u accompantocl to tho
,bank b:v her son Harry"onG of the pettttonora.end not by 0100.
PcUUoners eomplain cf the court ruUni'J not ~rmttUn9 them to
Introduce testimony concorn\ng tho will ot the 4ecocient and war husband.The)"
claim that the will dwetoaea n woll-d.E:lflned plnnlor the dlaposal ot their etltat(;Jp
and that thl)eatnbltsbment of thts s.ceount contravenQd tho terms thoreof.But
tho fact is that aU \'JO have to Q fJUt 4topt)S1ngof the esta.te utJotta oquaUylo
the ehU<1reu"Thero to no plan,sa ouch,that ts Gllsruvted ttl eny !'Iny.V,.b.at-
(tN.unets the eatQte has,are to bG dtstributed to the children 1n 0q_,aharos.
Nothlnq lntorieros t'Jith tho.t dloposttton.n could.hardt,bo nrguod 901'tooo17
that no assots mny be dlapoood 01 simply bGCl\WJo Q ~111 has betan GlIClCutGd.
malting $qual distribution of nn ostale among the chUdron..
In support of their theory pormtttlnq such tostbnony,petlttonera
cUe ~SO DnuplUn 308 (19SS),\71h<tre tho llusband-dceodent had
purcbB413d Qortntn stock in bls nn<1 bla wllota names.In hts ~Ul the husbnn4
attemptfXi to ~po8e 01 tho olock Be a legacy.The court held tbDt tbG buaband
tina sUnply mlstakQtl lUl to tho ownership and.hoYt tltled and.thnt this had no
oUoct r:tbatGVO?on the inter vivos gUt to the wUe.Vi"e feel that tbts cMoreeUy
tJupportB our holdtnv rather than the theory propoun4ed by the P3lttlonors.
One othQt'matter llhoutd engngo our attention.The record dtscloaa
that on NovQmber 2,uno.Gino Novl \"'JQt'lt to tho bnnk and ~lthdrow tho enUre
bnl6t1CG 10.tbts account,t\sum in aeeso of.$14.000.\'=,tth this tt1Qney ho made
certain lnvestmot'ltc nt QnOthor-bank.(cortUlcctep of deponlt)nnd oponed anothor
savlnqa nccount tilth the bnlnnco,both betnca tn the nnlnes of himsolf ond bl0
~JlfG#GltCludlng bto mothar.Ho toatUled:'I ••"t CQu1(l baVG \"Jithdro.tJo this
mot1Qy aC1t1m$~bLlt I 4\4ntt need it.If
V,"hotbor thls wtthc.troYic.l ~08 propO?a.nti vatl4 WGo.ro not called upon
to dectdo,end t'Je do not hGre 4Qc1do.!-'et'bnPB tho quesUon Is moot"olnca
tho money nan o:vallnblo tor Mrs.Novl'a nom durtng tho rent of ber llfetime
$04 for bot;'funeral enpoosGa.1\(4".Novt teat Wod thOot the fund t'Jao "Uhdrawn
for tb~purpoOG of socuring a btgb.or lntereot ratG elBotJhe~Q.Hll cltd not
onp1Qtn why be mnc10 the seld doposU.o tn tbo names of hlmsolf and \"JUe rathor
than b1mooU and hf8 motherII tho form of the ortgtnal account.
V.O conteat ourtlolvco lnthlo nttuaUon wUh the ob3QrVntlon thAt n
joint.necount may not legallybo dtoolpo.tcdbyono of thQ jQlnt tonnntD to tho
dolrlmQtlt of the romnlnlng Jo1nt toonnt pttbout 0.logltlmo.\O feaoon tor Ulo
wttbdraT':1I.t of thE)onUre bclcQoe.
In SUUlmt1i7,Tie bold tbnt tho bonh account in qaootton YJao propo:-ly
cOl t1;~in 1968;that tho rospondent bOD proVfJd 8 prima facto intor vlvOEl gUt
from tho dccGdcnt at thnt Umo •!be attnck on tho vo1ldlty thereof by the
pctltlonors fntlD bacnUQ8.U101r nllCtJlltlo0€3 aro not eu~ported by evldGnee "h1eh
III cleart preclse nnd cotlvkelngo.The potttlODto therd'Qr'e dtsUltseod.
1:,.tho Court~
/8/P.V.Marino,
1'.-.."F 1
tNTHE COURT OF COMMON PLEAS OF UASBIN'GTON COUNTY,PBNNA.
ORPHANS'COURT DNmtoN
tNREl
Estate of
.EWLIA NOVl,
(
)
(
)
(
)
(
No.759 of lQ71
',""..~
"...
Merino,1.June 30 I'1972.
"PPINtON
..
EmUia Novi,a ~tdow ag«179,died March 28,1971.She had been.
ltvlnv "Un her son,Gino,near V;asblogton,Pa.Her buntland.dte<!lome 15
years befo1'tiI,YJbUQ they were ltvlnq tn Pittsburgh.Upcm.hts death,shG.
became ontltled.to the balance tn a bank accounl hold.by the entireties vJttb htm"
..
At bGr InslatencQ she and her BOO:Gino Novi.,respondent beretn,
went to the aatdbank (Mellon National Bault anciTrust Compall1.Unton Trust
OOlee)on Februa1"119,1ge8,filnd oQsald date oponed a jOint savlnos account,
..
No.12-182,mnlttno-flO tnlUal <iojJOstt'of tbe sum of $6,SSod.52.Tbls "'1$the '
amount fematntnfJ in the entirotles account,"bleb she C108~.The~ank:
slgnaturecQt'cI provtded oy the Bank states tn rolevantportlotu
AGREEMENT ;ay OTHER THAN HUSBAND ANt>VilFE .
ESTABLlSHtNG A JOINT SAVmGS ACCOUNT
'Ne,the underatqned,hero:by open a 201nt deposit o.ccount tilth
MELLON NATIONAL BANK AND TRUST COMPANY,and.jointly and aworauy,
agree with respect.tberoto oa totl.ol'JS%
All d.eposits noVi or hereaftor l.lUldG thQl"Gtn SMU beheld au<l oVJned
b7 us as 10INT TENANTS wUh the rttht of SURVlVORS~,and not as tenant£;
In common.and ?lUh the uQderstatldlug and aQreement that upon the death of
oither.tho survivor shall thereupon be the polo owner of sald account laud the
balnneo fitat1410fJ to tho credit thereof;tM3 agreement shall be term\nnted
only by the wttbdrn\l'sl of aU tho montca to said account.
As a mattor of convenience to un only and not na lnvnl1dntln\T this
J'OlNT ESTATE,the monias 1u oatda.ceount shaU,subject to the rules of the
San1t,be 'e1thdrn"able at any time and from tlmGto Ume by cheek or erder
at \lithdra'fJal signed.by 'oUher of us;tbG po\!ler and authority grantGd heretn
to each of UD to slqn eheclW or orders of wltbdrtl\W3.1 against Dald account may
be revolted and termtnated by either of us by written noUce to saia bank to
v
thtlt effect;upon receipt of ouch revocation by the Bank,all checkS or ordern
of wlthdrat'1nlshaU therenfter require the slqnatures 01 both of us.
In v.u.noos Whereof,we have her,em set our banda a.nd seals this date Fob.19,
1958
_L....G/~Eo;;;;;;:;m;,;;;.;;l1__\a_N....o_v....l ,._(,BooU
....l,,;;:;,aLIlowowoil::lO_ln;o;;;o_L~,-=N_o:;,:,vt.;.-.t (Sea.l)
MELLON NATIONAL BANK AND TRUST COMF'ANY UNION TRUST OFFICE
Petitioners»Bony Nevi nud Josoph Novt,brothers of the l'~pondont.
challenge the vnttdity and.leoal efficacy of thls nqreement WQcutad mol'G tbllo
18 yoars prior to the fUlnq of their petUion borein.TbG1 allQgo vartous
groundG in support of this challenge.
First,it Is urged that the bank fltJreement,as set forth 01'1 the
stqnaturG card,does not show a vaUd tntor vivos 91ft of nald nccount from the
donor,Emilia Novt,to her son in the form of e joint account 'ellth rtqht of
survivorship.Admittedly the rospondent bnsthe initial burden of provlnq a
valid inter vivos gUt,and such proof In entabltsbed only by evidonce which ttJ
clGnr,direct.preclae and eonvinctnc(p §!PJ1~I g.§!&!L 407 Pa.162,167 (1962).
~out v.Set~z.S92 Pa.300 (lV58).
-2-
,')
IntMe area of the taw.certain wGU-aeU1Gdprlnclpto Qre paramount:
(1)in the absGnee of frand,acoident or mWtake.'When a person creat&S a joint
,.~,....
.savtug'Q aecoant wUh't.he lltgbtof sU?vbrora'tdp,and a sl;natutrG card.80 atattnq
,is executed bV both pnrUO$,'tbese facta constttuteprlmt\facie evtClGnee of a.,
,,gift Inter vivos by the d.~ltor (wboOG funds ar<:wihld)to the otherpera.0n
(who contributes nothing),and of tbecreatlon of a Joint tenancy ~lth right of
survlvorship:~3?5Ptl.484 (1963);(2)in the nbaenee 01
aUcqed or proven fraud.,accident ormlotalro,if the \"lording of tbe signatu.re
card.revealo the intent of tho depositor Vitthout amblquttyi parol evtdGnee to
show a contrary intent ,is In.ndrntss\ble;if from the ,\\Iordln9 altho lIttttnqs
th(;)tntent of tho depositor appa&.rs IndQflniteot uncGl'taln orambtguous,then
parol evidence Is admiSstble:"mgut"Estate,80'1 Pa.262.264 (1959>;(3)
when I.prima facto cose bas been madG out,.then the burden of prooflhtfts,
a.nd.,to suatnln $l1ch burden the evidence must be clearI .precise a.nd convtncln;s
R2S1 J.§tQt!b ~Pa.205,211 (961).,
\\he permittGd.the tntroduetton Into evidence,b,\"Jtly of eross-
<ma.mlnattonof respondont,01 oral tectlmony to show that,~hendoc<tdent
crea.tEld this jol~t savtngs accOlll1t tn 1968.no glf~was tnteodG4.The court
could have refused thlsprlvtleqeI as the written ngretement and sltlnature
card compare favorably \lUh 'bot used in AmeDl,Es~1o,supra,and 021£IsU\\!,
'4.06 Pa.4~~(1962).
,
But the testimony ,on cross eumtnnUon wasoot VQfJ rtveaUn~h it
being 13 years alnc$·the account was opened.Reapondent could.hardly be
onpectod toreeaUmtnor "etaUs of the openb~q Of this accounllS years Ulter.
The aecounl Vias opened at the Insistence of the dec.dent.Petitioners ltn(t\ll'
,at aU tlmea that ttprovidec1 for right of survivor'blp.After almost ten years
one of thG petitioners went to the bank V1tth hti motber to make a deposit of
$5000,tho proceeds of tbe $(\le of her home property in ~lttsbur9h.V.;e are
a
unable to deduco from thie testimony that the decedont cront0d.the Joint bank
account only for tho purpose of enllsttnq the o,ld of her Gon Glno tn 4rn.~tn9
chooks \btl.t sb:e desired.and that 01no boo no present Interest 10.the account
but WQS meraly to be enUtled to any balance remaining ather death.The only
person who interpreted tho bank aureomont card tn thts faGbton \'JaG thO
pet\Uoner,BQ.r1"1.
Theelnlm of petitioners Is that deccdont created the joint bank
tAecount onll for bel'eonven1onee to pay her current billS and that abo only
wanted her son 01nQ to have the money it a.ny remained at her d08.th.Evidence
vjas introduced coneerning her InabtUty to speak.lUld VirUs in the EQglish
language,os \"Jell as tho precarious eondtUon of her heQ.lth for h-Jo or three
yearl)before her death in 19'11.Such testtmony VlOS not very persuasive.
Decedent spoke to nel~hbors,friends and acquaintances in Engllsh and nover
had any trouble.Only one of ber childron couldsi-etlk ltaUan,flO ahe had to
c6nverS3e "ith the others mostly 1n EnqllDb.She was not dependent upon GinQ
untUohortly before her deceaae.
During her ti:fetlme Mrs.Nov!made a number of deposita to this
account;at times she was nccompan\ed by one 01 her CbUdr<tll,at others
sbe ViM alone.Mrs.Novl also made wUbdraVlals from the account on various
occasions.In 19ff!she wtthdr\WI ~600 and $100 on dUferent dates.ttl:Maroh
1968 ah$wUhdrG'C $100 nnd the next month,aeeompanted by ber'son Harrl
(one of the petitioners)shG v,tthdre~J the sum ..;f ~lOOO and wlth said sum
opened o.n account tn the "HUltop Bnnk"which was UQar har home and \"Ibleh
she could eosily manaQe to walk to.Tbls account was a joint account with
hot son HatTy.As testified by him,Mrs.Novi Hdtd her OV""D banldnq.n We
.interpret that to mean that she could,anddtd,on oecnstons go alone to the
bunk to mnko deposits or VJUbdrawalD.
,It beuld appear tbatMrs.Novi VJM V/f)U able'to ht\ndlo her banktui
tn Ita vnrtous phases.Sbo bad ~o physical dwabU1ty and bel'health remQtnod
gO(ld until the last fG~Jears.Her neighbor.who visited.bor thr~()T :lour
times a wNk.rew.tGd hOft Mrs.Novt wolke4 to church eVQry mOl'ntnfJ at
6:80 mthout any aid of any ktnd.Juat a fow roars after the orlgtno1 account
was opened,she trnvel«1,uuaecompaniod,to Italy tor n visit to her birthplnee.
fllthout tneldent.
Thts ts bar-aly the type of peroon \1/00$0 baCkground 'Would sUc;Nest
thenecesstty of possessing a bank o.ceount 1n 101n\names simply for:tbe
convenience of maldng depotlltG and withdrawals tor the benefit of the other
joint tennrit,thus rend,3rlnq U poasible tor the sickly or CU8abled joint tenant
to cnrry on the norm.al banlrtng activities wtthout appeartng at the bank.
B'ot'1Gver,petitioners rnt.\lntaln that a conftdenttnl relationship emsted
bett!'/OGn Mro.Nov!and the respondent,tbus plAcing tho burden on him to
prove that the inter vivos gUt was uaaffeetGd by undue 1nfluence or lmponltlon
or dooeptlon:!<!oo v.Ch:ean,865 Pa..B68 (1963).Such rolationship must
have stated at the very time of the opening of the oubjeetaccount.There is
hardly a word of testtmony from which ono could <1e<tuco aueh a relattonshlp
other than tho ,blood felnttonshtp of mother Qnd cb1l4.But a eoDfident1al
felnttoMhlp (ioes not artne meraly from the fact of family rGmtlo.-btp.and
1n cases of gUts tnter vlvo$between pnrent and chtld tho va ttdtty of the gttt
tspresumed,until otberwtse proved.There is c.presumption of fatrness and
Q,Ot of fraud:titled'§!E!~816 Pap 238 (1934).The mere Emtstel1ce of
IdOShtp dooo not,of itself,91ve rlae to confidential rolatlon:Clark V••Clarlt,
174 Pap $09,3S6 UagS).
n Is npparent toot such a relationship did.not atst in 1968 vihen tho
banlt account was opened.V.hether one ent.!Jte4 subsoquently,Vie find it
unnecessarJ to rule,;one need not chow tho intent of the depositor every lime
Q Utml d.eposlt 18 made loan old c.ccount.V.a might observe that a substantial
depooU ?JaB made tn 1906 whon Mrs.Novi ~old her rcstdollce.At that ttmo
she c1QpooUed 1n this account the sum of $5000.She VJ08 accompanied to tho
bank bl ber 0()\1 Harry,one of t~$petlUOUOi"S,nnd not by Gino.
.PeUtionero complain of the co\1rt rultnq not pOi'm UUng them to
Intro~ue$testlmonJ:concerntnq the will of the decedent and hOT hus~nd.Tbey
claim that the wUi dtoeloses 0.",ell..odeflnGd plan for the disposal of thetr eata1Ct,
and that the ostabltsbmeut of tb1a account contravened the terms thereof.But
tho fact ts tbnt aU \'/0 bnve 1s fA \:flU <11op0t31ng of th(!estate assots equnUy to
the cbildren.Thore Is no plan,as such,toot in (tts1'uptcd In any VIa,..\\'hat-
wer asoeta the estatG has,are \0 be distributed to tbo eblldroG 1n equnl shnrea.
NoUdnq tnte71orco ~J1th ttmt dlnpoolUotl.It could.bud.1J b0 nrguGd Derlousl1
that no nseota mo.y be diopoooO of simply beeaUSe n -wUl baa been cmecntCd.
makl119 Gqua.l distribution of an ostat.e nmonq the childron.
.In support of their theory pQX'mttttuq such testimony.petitioners
cite YshL ~stnt,.SO DauP1l.1n 303 (1963),~hore the b.uaband-e1¢c~ent had
pu:ebMod cortntn ntoclt 1n ble and his ?JUete names.In his '91111 the huaban4
attGmpted to disposG of the stock an a legacy_The court held tho.t tho husban<1
tlt18 simp'"mistAken M to tho ottJuersblp and.how Utled a.nd thntthls had no
Gffoet "hat~&r on the inter vtVOG {lUt to tho ~l.fe.·We feol thnt this ease roall)'
supportm our holdlnO rathor than tho thGOry propounded bJ tho peUUouOr8.
One othor mattQ1'$houl(fon~ngo our attention.The record dlsel.oaGS
that on November 2.uno,01110 Novl"om to tbe benk sud ?ltthdrOVJ the onttro
balance 1n this account,e.sum tn Gccaoof $14.000.with this monGy ho made
certain IntJoolmontIJ nt.enother bonk (cortlflcaten of <lepostU nod opened another
aavlnqaaceount t"Jlth tho balanCQ,both betng tn tho names of hlmBelf nod hia
wife,excluding blo mothQr.lie testifted:• •."1 could haV$VltthdrQ't'Jn this
mooGyenyllme,but I dldntt ne0d it."
III1."'I f1 .k•
-7-
lsi P.V.Marino,
.-:,
Whethor thta withdrQwal was proper and va1t4vre are not caUGd upon
to dectdo,and t'e do not here <tectd".~Grhaps tho quesUon 18 moot.since
the motlGY t1Unvs.tlable for Mrs.Novt's neG4edurtng thereat of her lifetime
'and for herfnnern.l expenses.Mr.Novl toat Uled that tbe fund was ?Jtthdr&YJtl
for the purpose of securing a.blgh01"tnterest rate.isewhere.Be <ltd not
.cmpla.tn flby be made the ~ld deposita in the names ofhtmself aQ,d wtfe rather
than himsolf aua bia moth(]r,the form of the o.rig1.nal acCOUDt.
V..'o content.ourselvoo In th1s s1tuatloo-elth the obaervatlon that a
,oint Mcount may not 1.111 be dl0t11poted by o:ue of the Joint tet1t\nts to the
detrhnGttt 01 tho r'0mnlnlng joInt tonnnt wtthouta lo91tltllatofGt\$Otl tor tbe
Vttthdraoalof the $tlUre bo.tnoce.
In summary,\"JO bold that the baok account tn queatton WIBpropetly
,et up 101968;that the respondent has proved fl prima.facto inter vtvoa gift
from tbe dec~~.n1t at tbat ttmo.The a.ttack on the vnltdltj th~r~f by tba
petitioners feUe booo.use thatr aUega1tGno arG not aupf;-ortGd by evidence 't'hleb
Is clearJ pr~tseand eonvtnelnq.The petition Is therefor"dbn:ntased.