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DURSO v. D'URSO. (01/08/63)

January 8, 1963

DURSO, APPELLANT.
v.
D'URSO.



Appeal, No. 428, Jan. T., 1962, from decree of Court of Common Pleas No. 7 of Philadelphia County, June T., 1959, No. 2074, in case of Margaret Durso and Theodore Durso v. Angelina D'Urso, John D'Urso and Theodore Durso. Decree affirmed.

COUNSEL

Nicholas G. Petrella, for appellant.

D. M. Masciantonio, for appellees.

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

Author: O'brien

[ 409 Pa. Page 488]

OPINION BY MR. JUSTICE O'BRIEN

Margaret Durso appeals from the final decree of the court below, dismissing her complaint in equity filed against Angelina D'Urso, John D'Urso and Theodore Durso, defendants. Theodore and Margaret Durso are husband and wife, as are John D'Urso and Angelina D'Urso, the latter being the parents of Theodore. Margaret filed a complaint in equity against her husband and his parents, seeking a conveyance of certain real estate, owned in the name of Angelina, to Margaret and Theodore as tenants by the entireties. Theodore was joined as involuntary plaintiff in order to provide necessary capacity and joinder.

In essence, the complaint alleges that some sixteen months prior to the marriage of Margaret and Theodore, Angelina took title to certain real estate in the City of Philadelphia. Margaret alleges that the purchase money was Theodore's and that title was taken in Angelina's name, thereby creating a resulting trust. The complaint further alleges that Angelina and Theodore promised Margaret that after her marriage to Theodore, title to the premises would be conveyed to her and Theodore as tenants by the entireties. Margaret avers that in reliance upon these promises, she

[ 409 Pa. Page 489]

    advanced money for improvement of the property. After some five years of marriage, Margaret and Theodore became estranged and have been living separate and apart from each other since June of 1958. Margaret now seeks to have the real estate conveyed to her and Theodore as tenants by the entireties, in accordance with the alleged promise.

Theodore and Angelina deny the allegations of Margaret, and their answer avers that the purchase money was Angelina's, not Theodore's; that neither of them made any promise to Margaret as to a conveyance of the property; and that Margaret did not advance funds for the improvement of the property. Their position is that the beneficial ownership of the property was and is in Angelina D'Urso.

The chancellor made findings of fact and conclusions of law and entered a decree nisi, dismissing the complaint. Margaret filed exceptions to the adjudication, which were dismissed, and a final decree entered. This appeal followed.

"In passing upon the questions raised on this appeal we must adhere to the well-established rule that a chancellor's findings of fact, approved by a court en banc, have all the force and effect of a jury's verdict if they are supported by adequate evidence and ordinarily will not be disturbed on appeal." Commonwealth Trust Co. v. Szabo, 391 Pa. 272, 276, 138 A.2d 85 (1957); ...


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