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DUPUY ESTATE (04/22/53)

April 22, 1953

DUPUY ESTATE


Appeal, No. 51, March T., 1953, from order and decree of Court of Common Pleas of Allegheny County, Oct. T., 1940, No. 3144, in Estate of John DuPuy, a Weak-minded Person. Order and decree reversed.

COUNSEL

J. Garfield Houston, with him John G. Kish and Blaxter, O'Neill & Houston, for appellant.

Clyde A. Armstrong, with him William D. Sutton and Thorp, Reed & Armstrong, for appellee.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Stearne

[ 373 Pa. Page 425]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This is an appeal from an order of the Court of Common Pleas of Allegheny County directing a husband to pay a monthly sum in the nature of a support order to his estranged wife, which order was secured by an attachment execution against property of the husband. The husband has appealed upon the ground that the Court was without jurisdiction to make the order in the circumstances of this case.

On October 2, 1940, Alma DuPuy, the wife, filed a petition in the Court of Common Pleas against her husband, John DuPuy, for the appointment of a guardian for his estate, averring that he was weak-minded and unable to care for his estate. The proceeding was under the Act of May 28, 1907, P.L. 292, 50 P.S. 941, et seq. The husband joined in the prayer of the petition. A corporate fiduciary was appointed guardian.

In 1949 appellant sought to have his guardian discharged, but the court declined to do so after a hearing on the merits. On February 19, 1952, he presented a second petition for discharge of the guardian. In addition to opposing such discharge, his wife filed a separate

[ 373 Pa. Page 426]

    petition in which she sought: (a) an increase in the monthly support allowance being paid to her out of the incompetent's estate, and (b) in the event of termination of the guardianship, a new order, in the nature of attachment execution, providing for her support out of the property of the husband located in Allegheny County. It was pursuant to the last-mentioned prayer for relief that the order appealed from was entered. The principal question presented is whether or not the Court of Common Pleas of Allegheny County has jurisdiction to consider an application for support by Alma DuPuy.

The Act of May 5, 1911, P.L. 198, as amended, 17 P.S. 626, explicitly provides that the County Court of Allegheny County shall have exclusive jurisdiction to enforce the duty of a husband to support his wife. It is settled, however, that limited jurisdiction to provide support for a deserted wife is conferred on the Court of Common Pleas by the Act of May 23, 1907, P.L. 227, as amended, 48 P.S. 131, 132. This limited jurisdiction was not abrogated by the Act of 1911, supra, purporting to give exclusive jurisdiction to the County Court. The reason for such continued power of the Common Pleas Court was well stated by Justice (later Chief Justice) MAXEY in Kemnitzer v. Kemnitzer, 335 Pa. 105, 6 A.2d 571, at p. 110: "The Act of 1911 did not confer on the County Court jurisdiction in equity.... Its jurisdiction is limited to the former jurisdiction of the Court of Quarter Sessions of Allegheny County, namely, to bring into court, in the nature of a quasi-criminal ...


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