Appeals from decree of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1962, No. 2977, in case of Edna Shapiro v. Samuel Shapiro.
I. Raymond Kremer, with him Morton Witkin and Marvin D. Weintraub, for plaintiff.
Edwin P. Rome, with him Morris L. Weisberg, Ruth B. Rosenberg, and Blank, Rudenko, Klaus & Rome, for defendant.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno would affirm the portions of the decree from which Samuel Shapiro appeals (288 January Term 1965) but would reverse the portions of the decree from which Edna Shapiro appeals (No. 343 January Term 1965). Dissenting Opinion by Mr. Justice Cohen.
This appeal presents another in a long series of lawsuits which have involved, directly or indirectly, the determination of the respective rights of a wife and husband in certain valuable property, both real and personal,*fn1 these lawsuits having been triggered by the emergence of marital discord between the wife and husband who, after four decades of married life, finally separated and have lived apart since January 1962.
On January 25, 1963, Edna Shapiro (wife) instituted an equity action in the Court of Common Pleas No. 6 of Philadelphia County against Samuel Shapiro (husband). In this action, the wife sought a retransfer to her from her husband of certain property: (a) 1138 8/9 shares of the common stock of Keystone State Theatre Company (Keystone); (b) 250 shares of the common stock of Welford Corporation (Welford); (c) 40 shares*fn2 of the common stock of Arcadia Theatre Company (Arcadia); (d) realty located at 118-122 South 16th Street, Philadelphia (16th Street property); (e) certain personalty and art objects. The wife also
sought an accounting of property, whether finally determined to belong to her solely or as a tenant by the entireties, a partition of certain realty known as Felton Theatre (Felton), held as tenants by the entireties by the wife and husband, and an accounting of income from Felton allegedly diverted by the husband to his own use. In essence, what the wife sought was: (1) that the husband be declared a constructive trustee for the wife of certain properties; (2) that, where property was finally determined to be held as a tenancy by the entireties, such property be partitioned; (3) that, where appropriate, the husband be required to account for his stewardship of the properties; (4) that, if the property be declared solely owned by the wife, the husband be required to transfer such property to the wife.
Upon issue joined, a trial was held before Judge Doty of the Court of Common Pleas No. 2 of Philadelphia County. After a trial -- which consumed 18 days and resulted in a printed record of approximately 3500 pages -- Judge Doty entered a decree nisi which (1) directed the husband to transfer to the wife in her name alone the Keystone and Welford common stock, (2) directed the husband to convey the 16th Street property -- held as a tenancy by entireties -- to the wife in her own name and (3) appointed Theodore Voorhees, Esq., a member of the Philadelphia bar, as a receiver to (a) state an accounting of all dividends, rentals and other receipts due to the wife in regard to Keystone, Welford, the 16th Street property, Felton and Arcadia, (b) inventory for the court the personalty claimed by the wife, (c) take possession of all properties held by husband and wife as tenants by the entireties, including the bank accounts, and (d) take possession and control of and vote the Arcadia stock held in the names of the wife and husband.
Both parties excepted to this decree. These exceptions were dismissed by a court en banc, consisting of
Judges Doty and Sporkin, and a final decree was entered.
The husband has appealed from that decree (No. 288 January Term 1965) on the grounds that the chancellor erred: (a) in finding that the husband diverted entireties' income to his own exclusive use when the record shows he applied such income for the wife's support; (b) in finding that the wife was sole owner of Keystone and Welford stock and the 16th Street property and a tenant by the entireties of the Arcadia stock since the evidence was legally insufficient to support such finding; (c) in ordering the transfer to the wife, an accounting and the appointment of a receiver for properties held by the entireties; (d) in not holding the wife guilty of laches and that the action was barred by the five year statute of limitations relating to constructive trusts of realty.
The wife has appealed from that decree (No. 343 January Term 1965) on the grounds that the chancellor erred: (a) in failing to declare the husband a constructive trustee for the wife of the Arcadia stock; (b) in failing to grant partition of the entireties' properties; (c) in appointing a receiver; (d) in imposing the costs of the litigation equally on wife and husband.
The parties to this litigation were married in Philadelphia in 1922 and lived together there until marital difficulties resulted in their separation in January 1962. They have two sons: Merton, a son of this union, and Bennard, the wife's son, by a previous marriage, who was adopted by the husband. The husband migrated to this country with his parents when he was seven years of age. At the time of his marriage he (then 21 years old) was in the real estate business and of modest means. The wife's family was in the business of manufacturing Fischman soda fountains. The wife's mother, Ida Fischman, was once very well to do although at her death she left practically no estate.
For some time during the latter part of her life Mrs. Fischman lived with the parties to this controversy.
The seeds of this litigation were planted over a number of years through various financial transactions purportedly made to affect the parties' credit standing and to avoid certain tax consequences. However, the fruit proved bitter when the parties ...