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MARGARET BACKUS v. RUSSELL T. BACKUS (10/30/75)

decided: October 30, 1975.

MARGARET BACKUS, APPELLANT,
v.
RUSSELL T. BACKUS



COUNSEL

Henry F. Huhn, Cornwells Heights, for appellant.

Charles J. Conturso, Morrisville, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Nix, J., joins. Manderino, J., filed a dissenting opinion.

Author: Jones

[ 464 Pa. Page 382]

OPINION OF THE COURT

This is an appeal from a decree in equity brought by a deserted wife seeking to have her husband declared trustee for her of his undivided one-half interest in entireties real estate held by the parties. The lower court dismissed her complaint, finding that appellant lacked capacity to sue because of Sections 111 and 114 of the Married Women's Property Act which prohibit actions seeking to destroy entireties estates prior to termination of

[ 464 Pa. Page 383]

    the marriage. Act of June 8, 1893, P.L. 344, § 3, 48 P.S. § 111; Act of May 1, 1913, P.L. 146, § 1, 48 P.S. § 114. We agree with this conclusion and for the reasons hereinafter discussed affirm the disposition of the lower court.

The facts leading to the present controversy are not in dispute. On May 18, 1968, appellant married the appellee, Russell T. Backus. They are still lawfully married although appellant instituted divorce proceedings on June 5, 1973. In July of 1969, the parties purchased a home as tenants by the entireties for the purchase price of $18,000 with the assumption of an existing mortgage in excess of $12,000. Appellant alleges that she paid $6,182.83 of her separate monies toward the purchase price and that while the parties lived together they both contributed towards the mortgage payments and for the repair and maintenance of their home. Since appellee's desertion in May of 1971, appellant asserts that she has assumed the entire financial responsibility for the home in which she continues to reside.

The reason for appellant's action is that once her divorce becomes final the parties will hold the real estate as tenants in common.*fn1 Consequently, appellant asserts that her husband will unfairly obtain the benefit of her initial purchase payment and continuing mortgage payments. Therefore, she has petitioned for a declaration that her husband be deemed to hold his interest in the property as trustee for her and that he be made to account to her for her payments on behalf of the property. The lower court found no merit in her position and sustained appellee's preliminary objections.

Appellant's main contention is that since she put up the initial cost of the property and has continued to

[ 464 Pa. Page 384]

    make payments, her husband should have no real interest in it. However, this overlooks the nature of the entireties estate.*fn2 Because this is an entireties estate and the parties are still lawfully married, her action is barred by the Act of June 8, 1893, P.L. 344, § 3, 48 P.S. § 111, which provides that a woman may only sue for divorce or to protect her separate property and by the Act of May 1, 1913, P.L. 146, § 1, 48 P.S. § 114, which allows a ...


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