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WATKINS v. WATKINS (05/26/58)

May 26, 1958

WATKINS
v.
WATKINS, APPELLANT.



Appeal, No. 124, Jan. T., 1958, from decree of Court of Common Pleas No. 6 of Philadelphia County, March T., 1954, No. 864, in case of Lucy L. Watkins v. Clarence M. Watkins et al. Decree affirmed.

COUNSEL

Martin G. Stein, with him William S. Stein, for appellant.

A. Leon Higginbotham, Jr., with him Doris M. Harris, Hardy Williams, and Norris, Schmidt, Green, Harris & Higginbotham, for appellee.

Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.

[ 393 Pa. Page 284]

OPINION PER CURIAM

The decree of the court below is affirmed on the following opinion of Judge LEVINTHAL as chancellor, which was adopted by the court en banc:

[ 393 Pa. Page 285]

"Plaintiff's bill in equity alleges her ownership, separately or as a tenant by the entireties, of certain personal property. She asks relief from her husband's alleged interference with her property interests.

"(a) The first group of properties consists of four savings accounts in the joint names of the parties. Plaintiff contends that the parties hold these accounts by the entireties and because defendant withdrew funds for his separate use, she is entitled to a partition of the accounts. Berhalter v. Berhalter, 315 Pa. 225 (1934). Therefore, she claims one-half of the highest total balance and interest thereon from the date of trial.

"We find that all four accounts are owned by the entireties. There is no question as to three of them. Their signature cards, which indicate present joint ownership and a right of survival, establish plaintiff's claim prima facie. Fell's Estate, 369 Pa. 597 (1952). We do not believe defendant's evidence to the contrary. However, the card for the Pennsylvania Company account merely indicates that both parties have a right to draw on the account. Since the card does not indicate who owns the fund, it is insufficient evidence of plaintiff's ownership. Flanagan v. Nash, 185 Pa. 41 (1898). However, we think that defendant's answer concedes that this account is owned by the entireties. It admits the amended complaint's allegation that this is a 'joint account'. While this phrase is ambiguous, defendant's brief indicates that he understands this to be an admission of plaintiff's joint ownership of the account.

"Plaintiff is entitled to the relief which she demands, under the authority of the Berhalter case. Her right is clear with respect to two accounts. Founds withdrawn from the Western Savings Fund account were deposited in the name of defendant subject to a

[ 393 Pa. Page 286]

    tentative trust for one of the children. We need not consider whether an irrevocable gift to this child would have been a proper use of entireties funds. Because the trust is tentative, the entire fund can be withdrawn by defendant for his sole use. Coming next to the Pennsylvania Company account, defendant admits that he was about to close it when the preliminary injunction issued. We do not believe that he planned to deposit this fund in an entireties account in another ...


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