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ELSIE KEISER CLAY v. EDWARD KEISER (03/18/75)

decided: March 18, 1975.

ELSIE KEISER CLAY
v.
EDWARD KEISER, APPELLANT



COUNSEL

Donald D. Dolbin, Cyrus Palmer Dolbin, Pottsville, for appellant.

Joseph A. Zane, Schuylkill Haven, for appellee.

Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Eagen and Nix, JJ., concur in the result. Jones, C. J., and Pomeroy, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 460 Pa. Page 622]

OPINION OF THE COURT

This is an equitable action to impress certain shares of stock in the possession of appellant with a constructive trust and compel assignment of those shares to appellee. The chancellor granted the requested relief and his decree was confirmed by the court en banc. This appeal ensued.*fn1

Appellant challenges the chancellor's conclusions that a tenancy by the entireties was created when the stock was placed in the names of both spouses and that the subsequent retransfer to appellant created a resulting trust for the benefit of appellee. Such matters turn primarily on their particular facts, but appellant has waived any right to challenge the chancellor's findings of fact by his failure to print in the record on appeal any of the testimony relied upon. Supreme Court Rule 41(7).*fn2 We conclude that the chancellor's conclusions of law were properly drawn from the facts found and affirm upon the following extracts from his able opinion, as supplemented by our footnote.

"Findings of Fact

"3. That the plaintiff [appellee] is the former wife of the defendant [appellant], having been divorced from him on December 31, 1971.

"4. That defendant inherited 863 shares of capital stock of Pardee Land Company (hereinafter referred to

[ 460 Pa. Page 623]

    as 'Pardee'), of Philadelphia, Pennsylvania, from his mother, Frances K. Keiser, who died on November 11, 1968.

"5. That defendant thereupon caused the said shares of stock which he inherited to be issued and transferred in the names of Edward K. Keiser and Elsie R. Keiser, as tenants by the entireties, as evidenced by Certificate No. 544, representing 863 shares of stock of Pardee, dated October 22, 1969.

"6. That at the time of and prior to the transfer of said stock to plaintiff and defendant as tenants by the entireties, defendant had been the victim of a heart attack and was, for a number of years, ill and required doctors' care and hospitalization.

"7. That the transfer of said stock by defendant to plaintiff and defendant as tenants by the entireties was the wish and voluntary act of defendant, motivated by his desire to minimize future inheritance taxes for the benefit of his wife and family.

"8. That on August 7, 1970, defendant made application to Minersville Safe Deposit Bank and Trust Company for a ...


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