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GESSLER v. GESSLER ET AL. (07/17/56)

July 17, 1956

GESSLER
v.
GESSLER ET AL., APPELLANTS.



Appeal, No. 75, Oct. T., 1956, from order of Municipal Court of Philadelphia County, June T., 1955, No. 515, in case of Annette C. Gessler v. John M. Gessler, Girard Trust Corn Exchange Bank, and Robert M. Green. Order affirmed.

COUNSEL

C. Leo Sutton, with him William T. Coleman, Jr., and Dilworth, Paxson, Kalish & Green, for appellant.

Louis M. Cohen, with him Stanton S. Oswald, and Wolf, Block, Schorr & Solis-Cohen, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Hirt

[ 181 Pa. Super. Page 358]

OPINION BY HIRT, J.

In disposing of this appeal we must accept as verity the averments of plaintiff's complaint to this effect: The plaintiff and the defendant were married in April 1945; two children were born; a daughter on January 14, 1947 and a son, now six years old. On September 16, 1954, the defendant left his wife and children in the common home in Philadelphia. He separated himself from his family without reasonable cause under circumstances which charge him with desertion and

[ 181 Pa. Super. Page 359]

    abandonment of his wife and children. Since the separation he has willfully refused and neglected to support his family. The defendant lives in Tampa, Florida, the plaintiff in Plymouth Meeting in this State. Because of the defendant's neglect ever since the desertion on September 16, 1954, the plaintiff has been obliged to provide a home for the two children and to maintain herself and them from her separate personal estate. Between the above date and June 16, 1955, when this action was brought, the plaintiff of necessity had spent a total of about $12,500 of her own funds in supporting herself and the two children.

The defendant has an interest, as an income beneficiary under a trust established by his father John M. Gessler, and a like interest in a similar trust established by his mother, Gertrude M. Gessler. The predecessor of Girard Trust Corn Exchange Bank as cotrustee with the defendant was awarded the principal of the trust fund established by the will of defendant's father on distribution of the estate by the Orphans' Court of Montgomery County. Robert M. Green is the trustee of funds bequeathed to him in trust for the benefit of the defendant by the will of his mother. Defendant does not own or have an interest in any other property, real or personal, in Pennsylvania. Plaintiff and defendant had owned the dwelling house by entireties where they lived in Philadelphia but shortly after the desertion the defendant defaulted in the payments due on a mortgage, although financially able to make them, and foreclosure proceedings were brought by an assignee of the mortgage (alleged to be a strawman acting for the defendant). As a result the plaintiff was forced to surrender possession of the home in which she and her children had lived since July 1952.

Both of the above trusts became spendthrift trusts in contemplation of law by the language, identical in

[ 181 Pa. Super. Page 360]

    the wills of both testators as follows: "I will and direct that neither the income payable to any beneficiary or beneficiaries nor the corpus from which the same is derived shall in any way be liable to or for the contracts, debts and/or engagements of any such beneficiary or beneficiaries, or to execution and/or attachments at the suit of their or any of their creditors, but the same shall be absolutely free from the same and such beneficiaries shall have no power to sell, assign, transfer and/or encumber such income ...


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