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COMMONWEALTH EX REL. SMYLIE v. SMYLIE (06/11/57)

June 11, 1957

COMMONWEALTH EX REL. SMYLIE
v.
SMYLIE, APPELLANT.



Appeal, No. 157, Oct. T., 1957, from order of Municipal Court of Philadelphia, Dec. T., 1956, No. 197,992, in case of Commonwealth ex rel. Eva Smylie v. John Smylie. Order affirmed.

COUNSEL

Samuel F. Pepper, with him Isadore Penn, for appellant.

Harry J. Gerber, for appellee.

Before Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (rhodes, P.j., and Woodside, J., absent).

Author: Watkins

[ 184 Pa. Super. Page 277]

OPINION BY WATKINS, J.

This is an appeal from an order of the Municipal Court of Philadelphia, allowing a petition for support in the amount of $25 a week. The husband's defense to the action was an agreement which the court below held to be no bar to the action because it was, "conducive to the procuring of a divorce" and so against public policy, and too, it was breached by the husband and was null and void.

The parties were married November 19, 1954 and separated on December 26, 1955. The wife is 62 years of age, the husband older; both were married before. There are no children of this marriage.

The uncontradicted testimony of the wife appellee, that the appellant husband abused her and left her without cause, was accepted by the court below as true.

The husband was engaged in a number of business ventures. Needing capital, he caused his wife to turn over to him, all her assets, consisting of $20,000 in bonds and $1800 in cash. He used the bonds as collateral security in borrowing the sum of $18,000 from the Philadelphia National Bank.

After the desertion of December 26, 1955 the wife filed a bill in equity in the Court of Common Pleas of Philadelphia to secure the return of her assets. On June 6, 1956 the parties entered into a written agreement. The preamble of the agreement said, "wife is contemplating the institution of an action in divorce against husband." By the terms of this agreement the husband agreed to return to his wife the $1800; that $800 of this sum was to be turned over, in escrow, to Harry J. Gerber, Esquire, attorney for the wife, and $1,000, in escrow, to Samuel F. Pepper, Esquire, attorney for the husband; that these funds were to be paid

[ 184 Pa. Super. Page 278]

    over to the wife upon the granting of a final ...


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