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February 20, 1967

Lois J. Dunlap SPINELLI and Joseph Dunlap

The opinion of the court was delivered by: DAVIS

 The plaintiff has instituted this diversity action against his former wife and her father. The latter have filed with their answer motions to dismiss on the grounds that the amount in controversy is less than $10,000.00 and that "the complaint fails to state a cause of action." These motions are now before us.

 The complaint alleges that in April 1964, the plaintiff and the defendant Lois Spinelli, who was then his estranged wife, engaged a real estate broker to sell their home in Delaware County. The property was owned by them as tenants by the entireties. In May, the broker obtained purchasers for the property and a contract of sale was signed by both plaintiff and defendant. Pursuant to the contract of sale, settlement was held on September 15, 1964 in the offices of the Commonwealth Land Title Insurance Company. However, it became impossible to distribute the proceeds that day and the company requested the plaintiff and the defendant to return the next day. The plaintiff returned at the appointed time, but the company informed him that it had already delivered to his wife the check for $18,318.22 made out to the order of "Joseph M. Spinelli and Lois J. Spinelli." Mrs. Spinelli had informed the company that she had full authority to accept it for both although she did not in fact have such authority. Thereafter her father, Joseph Dunlap, without authorization from the plaintiff, endorsed the settlement check with the plaintiff's name, thus committing forgery. The defendants then deposited the money into a savings account and subsequently withdrew it. They converted it to their own use without the consent of the plaintiff. He contends that the defendants have conspired to defraud him of his rights to $12,099.11 from the proceeds of the $18,318.22 check and demands judgment for the $12,099.11 with interest.

 The complaint also states that Lois and Joseph Spinelli were divorced in 1965.

 It is the defendant's contention that the $18,318.22 in question was entireties property and that the most to which the plaintiff would be entitled would be one half of it or $9,159.11, a sum less than the jurisdictional amount.

 Under Pennsylvania law, a tenancy by the entireties is an estate by which property, either real or personal, is held jointly by husband and wife with right of survivorship. It is held "per tout et non per my," that is, each spouse is seized of the whole and not of any divisible fraction. While they continue as husband and wife, neither may destroy the tenancy or alienate any portion of it for his or her own exclusive benefit without the consent of the other. Blumner v. Metropolitan Life Insurance Co., 362 Pa. 7, 66 A.2d 245 (1949); United States National Bank v. Penrod, 354 Pa. 170, 47 A.2d 249 (1946); Phipps, "Tenancy by Entireties" 25 Temple L.Q. 24 (1951); "The Power in a Husband and Wife holding Property by the Entirety;" 57 Dickinson L.Rev. 356 (1955); 18 Pa. Law Encyclopedia §§ 6-10 and cases cited therein.

 However, if one spouse does in any way prejudice the rights of the other in such property, the latter has the right to demand an accounting, to have severed all entireties property held by them and to have awarded to him in his own right one half of it. In Brose Estate, 416 Pa. 386, 206 A.2d 301 (1965), husband and wife had a series of joint savings accounts which were tenancies by the entireties. In 1963, the wife left her husband and withdrew a large sum of money from one of the accounts without the consent of her spouse. When the husband discovered what had happened, he withdrew money from some of the others and appropriated it for his own benefit. The court stated 416 Pa. at p. 391, 206 A.2d at p. 304:

 The Court found a mutual intent to terminate the tenancies by the entireties and decreed that each spouse was entitled to one half of all the proceeds that existed on the day that the wife first made an unauthorized withdrawal for her own benefit.

 The plaintiff in the instant action argues that he is entitled to $12,099.11 from the proceeds of the check. The complaint nowhere states how the plaintiff arrived at this figure. In his unsworn statement of facts in his brief, he indicated that he contributed all the funds necessary for the purchase of the home and the maintenance of the mortgage and that after repayment of the mortgage, the $12,099.11 remaining would belong to him. Even if we consider these facts properly before us, Pennsylvania law considers it immaterial who initially contributed the assets and permits each spouse to retain only one half of entireties property if the estate is dissolved. See Cribbs Estate, 411 Pa. 242, 191 A.2d 379 (1963).

 In Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964), the husband had purchased a number of shares of stock with his own funds, but he put them in the name of himself and his wife. She never saw or had possession of the certificates. The court stated that once the stock was put in the names of both spouses the gift to the wife was complete and the creation of an estate by the entireties was presumed even though the money used to purchase the stock had originally belonged to the husband.

 The Pennsylvania Courts impose a very strict burden to overcome this presumption. Holmes Estate, supra, 414 Pa. at 406, 200 A.2d 745. Yet the wording of the complaint obviates any such problem here since the plaintiff admits that the house and the check were both entireties property.

 Taking the allegations of the complaint as true, we are dealing with a check of $18,318.22 which is a tenancy by the entireties. The wife has expropriated it to her own use, and the husband now sues for its return. His action indicates an acceptance of his wife's offer to terminate the entireties estate that existed in the property. No matter how culpable the defendant's conduct, the husband is entitled to no more than one half of the proceeds since he had made a gift to his spouse by the creation of the tenancy by the entireties in the first place.

 The plaintiff is saying in effect that because his former wife has acted improperly with the gift, he is entitled to have it returned to him in toto. He relies on the case of Commonwealth v. Levitz, 73 Montg. Co. Law Rep. 191 (1956), a decision of the Quarter Session Court of Montgomery County. The wife had her husband arrested for non-support. It appeared however, that she had withdrawn $10,000 from a joint banking account and placed it in other accounts in her own name. She argued that one half of the fund belonged to her anyway. Without citation of authority, the court stated that the wife's action dissolved the tenancy by the entireties, and the title to the fund would vest in the husband who had deposited the money in the account. The Court then added, "As ...

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