Appeal from decree of Court of Common Pleas of Dauphin County, No. 3039 of 1970, in re Martin W. Neidigh v. Helen I. Neidigh.
William H. Nast, Jr., for appellant.
Harry B. Goldberg, with him Goldberg, Evans & Katzman, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.
This action in equity contains two counts concerning unrelated transactions between a couple who were married in 1933, separated pursuant to an agreement in 1959, became reconciled a few months later and lived together from early 1960 to June of 1969, when they again separated and have since been divorced.
In the first count, the husband, appellant, seeks a reconveyance of his interest in formerly jointly held real estate, which, pursuant to the 1959 separation agreement, he had conveyed to his wife for a consideration of $2,000.
In the second count, Mr. Neidigh claims fifty percent of a $10,000 payment made under a serviceman's group life insurance policy on the life of the couple's son, Kenneth M. Neidigh, who died on June 8, 1969.
The chancellor, by his decree nisi, dated June 17, 1971, dismissed both counts of appellant's complaint. Mr. Neidigh filed exceptions which, after argument, were dismissed on December 15, 1971. The decree nisi was entered as a final decree and the appellant filed this appeal.
With regard to the first count, according to the chancellor's opinion: "The testimony reveals that the defendant, Mrs. Neidigh, obtained the $2,000 to purchase her husband's interest in the real estate by securing a mortgage on the property and that after the parties were reconciled, the plaintiff, Mr. Neidigh, over a period of years, paid off the mortgage. The record also discloses that the husband used some $1,400 of the $2,000 he received from his then estranged wife to purchase a trailer which he eventually placed in joint names. Thus to a large extent, the defendant, Mrs. Neidigh, enjoyed the fruits of the $2,000." Nevertheless, the chancellor concluded that the law placed no duty upon Mrs. Neidigh to reconvey the property.
In arguing that the court erred in not ordering a reconveyance of the real estate or a setting aside of the deed executed by the appellant pursuant to the separation agreement, the appellant emphasizes our decisions in Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946), Singer's Estate, 233 Pa. 55, 81 Atl. 898 (1911), and Hitner's Appeal, 54 Pa. 110 (1867). Zlotziver held that a separation agreement can be annulled by a reconciliation and a resumption by the husband and wife of the marital relationship in the absence of any agreement to the contrary. Singer and Hitner contain dicta to the effect that if a parcel of real estate is simply transferred to one spouse as part of a separation agreement, if a subsequent reconciliation abrogates the separation agreement, then the property must be reconveyed.*fn1
However, the dicta in Singer and Hitner do not help appellant. In the instant case, the real estate in question was not simply transferred pursuant to a separation ...