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BRENNER v. SUKENIK. (03/19/63)

March 19, 1963

BRENNER, APPELLANT,
v.
SUKENIK.



Appeal, No. 313, Jan. T., 1962, from decree of Court of Common Pleas of Luzerne County, Oct. T., 1960, No. 18, in equity, in case of Annie Brenner v. Arnold Sukenik, executor, and Dora Sukenik, executrix, of estate of Harry Brenner, deceased. Decree affirmed.

COUNSEL

Conrad A. Falvello, for appellant.

Martin D. Cohn, with him Laputka, Bayless, Ecker & Cohn, for appellees.

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

Author: Eagen

[ 410 Pa. Page 326]

OPINION BY MR. JUSTICE EAGEN

This action in equity was instituted by the wife against her husband for support and maintenance under the Act of May 23, 1907, P.L. 227, as amended, 48 P.S. ยงยง 131, 132. The nature of the action was both in personam and in rem. In addition to an award for support, the complaint requested the seizure of the husband's real estate, individually held, and also asked the termination of an account in a savings and loan

[ 410 Pa. Page 327]

    association registered in both names and allegedly owned as tenants by the entireties. In connection with the last mentioned property, the wife requested that the one-half owned by the husband be charged with payment of the support order.

An answer filed to the complaint denied that the husband had failed or refused to support his wife. By counterclaim, the defendant also requested the termination of the savings account involved, alleging that it was created in pursuance of and subject to a written agreement between the parties, which the wife-plaintiff had violated. The court was asked to decree and award the entire amount in the account to the husband. The jurisdiction of the court was also questioned on the ground that the plaintiff had an adequate remedy at law. After reply filed, the issue came on for hearing.

The chancellor overruled the objection to the jurisdiction and proceeded to dispose of the matter on the merits. Upon the basis of facts specifically found, he concluded that: the wife-plaintiff had left her husband without reasonable cause; while the parties lived together the husband had supported his wife commensurate with his income and did not at any time refuse to provide her with suitable maintenance; the savings deposit account involved was created pursuant to a written agreement entered into between the parties; the entire sum deposited in this account was the personal money of the husband; in consideration, the wife-plaintiff had agreed to enhance the account by adding thereto $2000 of her own; the wife failed to comply with her obligation in this respect. He, therefore, decreed that, under the facts, the wife-plaintiff was not entitled to an award for support, and that the savings account should be terminated and paid in totality to the defendant-husband.

Exceptions to the decree nisi were dismissed by the court en banc and the findings ...


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