Appeal from decree of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1962, No. 3917, in case of Morris Nachman v. Pearl Nachman and Liberty Federal Savings and Loan Association.
Stanley M. Greenberg, with him Leonard M. Sagot, and Greenberg, Poserina and Sagot, for appellant.
Goncer M. Krestal, with him Marvin Comisky, and Blank, Rudenko, Klaus & Rome, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Jones.
This appeal presents a controversy between a husband and wife concerning the ownership of certain personalty once held by them as tenants by the entirety.
After 28 years of marriage, Morris and Pearl Nachman separated in October 1962. Several months thereafter, Morris Nachman (Nachman), instituted an equity action in the Court of Common Pleas No. 6 of Philadelphia County against his wife, Pearl Nachman, and the Liberty Federal Loan Association (Association). Nachman's complaint averred: (1) the existence of a savings account (No. 7607) with the Association titled in the names "Pearl Nachman or Morris Nachman" the balance in which was $763.83; (2) the existence of a savings account (No. 12501) with the Association titled "Pearl Nachman, in trust for Morris Nachman" the balance in which was $2107.72; (3) the existence of a safe deposit box in the Fidelity-Philadelphia Trust Company leased by both Nachman and his wife in which, on or about September 15, 1962, there was cash approximating $5000 and eight specifically identified life insurance policies wherein Nachman was named insured and his wife beneficiary; (4) that, after the separation of the parties, without Nachman's consent, Pearl Nachman removed from the safe deposit box both the cash and insurance policies; (5) that, unless restrained, Pearl Nachman would likely withdraw the money from both savings accounts and appropriate it to her own use.*fn1
In her answer, which contained both new matter and a counterclaim, Pearl Nachman claimed ownership of: (1) savings accounts Nos. 7607 and 12501; (2)
savings account No. 12502 with the Association titled "Morris Nachman in trust for Pearl Nachman" in which the balance was approximately $10,000; (3) the proceeds realized from the sale of certain specified securities which had been registered in the joint names of the parties as tenants by the entirety and which had been appropriated by Nachman. In his answer and reply, Nachman stated that he owned both savings account No. 12502 and the proceeds realized from the sale of the securities.
When the matter came on for trial, the parties agreed that savings accounts Nos. 7607 and 12501 would remain undisturbed by the parties until their ownership was adjudicated by the court,*fn2 that the insurance policies should be delivered to Nachman and that the cash which has been in the safe deposit box should be divided between the parties. In the light of that agreement, the only matters in issue in the court below which are now questioned upon this appeal are the ownership of (a) savings account No. 12502 and (b) the proceeds realized from the sale of the securities. After hearing in the court below, that court held that Nachman owned both. From that decree this appeal is taken.
Proceeds Realized From Sale of Securities
In 1959, with his own funds, Nachman purchased certain securities. At his direction, these securities were issued in the joint names of Morris Nachman and Pearl Nachman, husband and wife. Thenceforth until the summer of 1962, Nachman "played the market", sold and bought securities usually ...