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HUNSBERGER v. BENDER (04/17/62)

April 17, 1962

HUNSBERGER
v.
BENDER, APPELLANT.



Appeal, No. 19, Jan. T., 1962, from decree of Court of Common Pleas of Bucks County, May T., 1957, No. 13, in case of Walter F. Hunsberger v. Frannie E. Bender. Decree affirmed.

COUNSEL

Emanuel H. Klein, for appellant.

Marvin L. Portney, with him James C. Bowen, and Power, Bowen & Valimont, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Cohen

[ 407 Pa. Page 186]

OPINION BY MR. JUSTICE COHEN

In 1927, appellant and appellee, who were then wife and husband, acquired title as tenants by the entireties to certain real estate which they occupied as a home. They were divorced in 1947 and the wife-appellant continued living in the home. Ten years after the divorce, in 1957, the husband filed his complaint pursuant to the Act of May 13, 1925, P.L. 649, No. 350 (No Purdon citation), which provides a statutory procedure whereby divorced persons can compel the sale of property held by the entireties.

The wife does not challenge the right to have the property sold, but claims that she is entitled to a greater share of the proceeds than the husband since she had maintained and improved the home for the ten years after the divorce, at a cost to her of over $12,000. Appellant contends, therefore, that equal division of the proceeds would unjustly enrich the husband. The court below decreed that the property be sold and the proceeds divided equally. The wife has appealed.

To the extent here relevant, the Act of May 13, 1925 provides: "Section 3. The interest of each of the respective tenants by entireties shall be conclusively deemed to be one-half of the value of the property. The

[ 407 Pa. Page 187]

    proceeds of any sale had under the provisions of this act after the payment of the expenses thereof shall be equally divided between the tenants by entireties. If the whereabouts of the defendant is unknown his or her share shall be paid into court, to be disposed of as the court shall direct."

Appellant argues that the first sentence of the section requires that the interest of each tenant be fixed at half the value of the property as of the date of the divorce decree. She contends further that one party is not precluded from acquiring an interest in the property greater than the other as a result of expenditures made after the divorce decree, particularly if unjust enrichment to the non-contributing party will result if there is an equal division of the proceeds of a sale.

This argument has some merit. The first sentences of section 3 does not by its terms set forth explicitly the time at which the interest of the tenants is to be fixed as equal. However, appellant fails to cope adequately with the second sentence of section 3. This requires an equal division of the sale proceeds after the payment of expenses of the sale, clearly indicating that the time of sale, not the time of divorce, is the crucial moment for determining the amount of proceeds which are to be divided equally by the parties. The statute makes no exception, moreover, for those cases ...


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