M. Robert Beckman, Philadelphia, for appellant.
Joseph C. Henry, Marcus Manoff, Aaron M. Fine, Paxson, Kalish, Dilworth & Green, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.
This appeal arises from a proceeding in equity between husband and wife. The action was brought by the husband to require his wife to account for the entire amount of a bank deposit which they held as tenants by entireties. The husband has appealed from the final decree of the court below.
The action was brought originally in assumpsit wherein the husband sought recovery from his wife of the balance in their joint account in the Western Saving Fund Society in Philadelphia in the amount of $1,799.15. The parties were unquestionably in accord in the creation of the bank account from which either could draw; but it was averred that the balance of the account was fraudulently, surreptitiously, and without authorization withdrawn by the wife on March 28, 1946.
The case was heard without a jury, and the trial judge found for the husband in the amount withdrawn by the wife, to wit, $1,799.15. On November 22, 1947, the court in banc sustained the wife's exceptions to the finding for the husband, and held that his remedy was by a will in equity against his wife for an accounting. Accordingly, the court in banc transferred the case to the equity side of the court for further proceedings, as the question involved was whether the withdrawal by the wife was in good faith and for a proper purpose, or was fraudulent. The husband filed exceptions to the order of the court in banc of November 22, 1947. On December 15, 1947, these exceptions were stricken off, and no appeal was taken. The husband thereupon acquiesced in the order of the court in banc and proceeded in equity. His complaint in assumpsit was considered as a bill in equity with certain amendments and prayers for relief.*fn1 Thereafter the wife filed her account on June 30, 1948, showing the expenditures made from the fund. The husband filed exceptions to his wife's account, and on October 27, 1948, the matter came on for hearing in equity. It was stipulated that the evidence taken in the assumpsit action should be considered as taken in the equity proceedings. Additional testimony was presented at a hearing before the chancellor.
The chancellor made findings of fact and conclusions of law sustaining the husband's contentions, and entered a decree nisi directing the wife to pay over to him $975.69, being approximately one-half of the amount originally withdrawn from the bank deposit held by
entireties. The account filed by the wife as amended showed that she had expended all but $61.35 of the balance withdrawn from the bank. These expenditures were principally for rent, food, clothing, and medical expenses of the wife, and cover a period of forty-two weeks from March, 1946, to January 16, 1947, when an order of the Municipal Court for the support of the wife became effective.
The principal facts as to the marriage and conduct of the parties prior to suit, as found by the chancellor, are not controverted. The marriage took place in 1940. In February, 1941, a joint bank account was started in the Western Saving Fund Society. Either party had the rights to withdraw. It is admitted that the funds came from the husband's earnings. The parties continued to live together until May 5, 1946, at 3115 North Broad Street, Philadelphia, when the husband was removed to a hospital for treatment. Upon his recovery six weeks later he did not return to the matrimonial domicile but went to live with his sister. On March 28, 1946, without the husband's knowledge, the wife had withdrawn from the bank account the entire balance of $1,799.15. Except for an ...