
    Seery v. Seery
    
      B. Fertile, for plaintiff.
    
      M. Edelman, for defendant.
    
      May 29, 1950.
   Fenerty, J.,

The bill averred that plaintiff and defendant were married, but are living separate and apart; that plaintiff is the owner of 63 bonds of the United States which are described in detail; that all the bonds are in the possession of defendant, who has refused to deliver them to him. The prayer of the bill was for an order upon defendant to deliver the bonds to plaintiff forthwith.

The answer of defendant admitted that plaintiff had purchased certain of the bonds, disclaimed knowledge as to the ownership of others, claimed absolute ownership of two bonds, and it averred that she held possession, as trustee for their minor children under an oral trust between her and plaintiff, of the remainder with the exception of certain bonds, enumerated, which had been “cashed by the defendant during a period of time, when the plaintiff and the defendant were living apart,” and that she had used the proceeds to support herself and the children. Under the head of “New Matter”, defendant set forth an oral trust agreement which plaintiff denied, asserting that the bonds were delivered by him to her for “safe keeping”.

Discussion

There are 63 United States bonds in controversy here. For convenience, they are numbered in the bill from 1 to 63, inclusive. That bonds nos. 51, 54, 55, 56 issued in the names of the children, and no. 61, were purchased by defendant, is admitted by plaintiff. Defendant does not seriously question the fact that, with the exception of nos. 11 and 12, the other bonds were purchased by plaintiff, but claims they were delivered to her, in trust, for the benefit of their minor children. There was no convincing evidence of such a trust, the existence of which was denied by plaintiff. Bonds nos. 1 to 10 inclusive and nos. 13 to 41, inclusive, were issued in the name of plaintiff, payable on death to .defendant in some instances and in others to one of the minor children. Undoubtedly, these bonds belong to plaintiff and should be delivered to him. Bond no. 11 was issued in the names of “Donald A. Seery or Mrs. Florence Seery”, defendant, and bond no. 12, in the name of “Francis Lee Seery or Mrs. Florence Seery”. There is a “general presumption existing in all dealings between husband and wife that real or personal property bought in the name of the wife with the husband’s funds, or transferred from husband to wife without consideration, is a gift to her”: Werle v. Werle, 332 Pa. 49, 51. The same presumption applies to bonds nos. 43, 44, 45, 46, 47, 48, 50, 52, 53, and the evidence here is not sufficient to overcome it. Donald A. Seery and Francis Lee Seery are the minor children of the parties. When the bonds were issued in their names jointly with defendant, the gift to the children was complete. Plaintiff, would have no interest in those bonds: Wheeler v. Kidder, 105 Pa. 270. Likewise, plaintiff would have no interest in bonds nos. 42, 49, 51, 54, 55, 56 which were issued payable separately to each child. Bond no. fi2 is in the name of “Donald Seery or Russell Seery”, plaintiff. Bond no. 63 is in the name of “Lee Seery or Russell Seery”, plaintiff. Defendant has no interest in the bonds, and they should be delivered to plaintiff. We admonish plaintiff, howevef, that, while he may have power to convert these two bonds into cash, that “power must be exercised in good faith for the mutual benefit of both, and cannot be rightly exercised by the fraudulent withdrawal of the corpus of the funds for the exclusive use of one for the purpose of depriving the other of any use thereof or title thereto”: Werle v. Werle, supra, pages 52 and 53. . . .

Decree Nisi

And now, to wit, May 29, 1950, this cause having come on and having been heard, it is ordered, adjudged and decreed that defendant, Florence Nola Seery, deliver forthwith to plaintiff, Russell Seery, bonds of the United States as follows:

Bond Number Amount Registration
C114681106E $100.00 Russell Seery POD Mrs. Florence Seery
C114681105E 100.00 Russell Seery POD Mrs. Florence Seery
C114681104E 100.00 Russell Seery POD Mrs. Florence Seery
C114681103E 100.00 Russell Seery POD Mrs. Florence Seery
C114681102E 100.00 Russell Seery POD Mrs. Florence Seery
C114454958E 100.00 Russell Seery POD Mrs. Florence Seery
C114454957E 100.00 Russell Seery POD Mrs. Florence Seery
C114454956E 100.00 Russell Seery POD Mrs. Florence Seery
D10884060E 500.00 Russell Seery POD Lee Seery
D11155181E 500.00 Russell Seery POD Lee Seery
C85487249E 100.00 Russell Seery POD Lee Seery
C85487248E 100.00 Russell Seery POD Donald Seery
C66089957E 100.00 Russell Seery POD Lee Seery
C66089962E 100.00 Russell Seery POD Lee Seery
C66089958E 100.00 Russell Seery POD Lee Seery
C66089959E 100.00 Russell Seery POD Lee Seery
C66089960E 100.00 Russell Seery POD Lee Seery
C66089961E 100.00 Russell Seery POD Lee Seery
C66089951E 100.00 Russell Seery POD Donald Seery
C66089952E 100.00 Russell Seery POD Donald Seery
C66089953E 100.00 Russell Seery POD Donald Seery
C66089954E 100.00 Russell Seery POD Donald Seery
C66089955E 100.00 Russell Seery POD Donald Seery
C66089956E 100.00 Russell Seery POD Donald Seery
L67813729E 50.00 Russell Seery POD Donald Seery
L67813730E 50.00 Russell Seery POD Donald Seery
L101946381E 50.00 Russell Seery POD Lee Seery
L101946382E 50.00 Russell Seery POD Donald Seery
G85487247E 100.00 Russell Seery POD Donald Seery
C85487250E 100.00 Russell Seery POD Lee Seery
D11155180E 500.00 Russell Seery POD Donald Seery
D10356254E 500.00 Russell Seery POD Lee Seery
M6662569E 1000.00 Russell Seery POD Donald Seery
M12364857E 1000.00 Russell Seery POD Francis Seery
D8122552E 500.00 Russell Seery POD Nola Seery
D8122557E 500.00 Russell Seery POD Nola Seery
Bond Number Amount Registration
D8122556E 500.00 Russell Seery POD Nola Seery
D8122555E 500.00 Russell Seery POD Nola Seery
D8122558E 500.00 Russell Seery POD Nola Seery
D227754F 500.00 Donald Seery or Russell Seery
D227833F 500.00 Lee Seery or Russell Seery

Costs are to be divided, equally, between plaintiff, Russell Seery, and defendant, Florence Nola Seery.

The prothonotary will notify the parties of the entry of this decree nisi, and, unless exceptions be filed within 10 days of the date hereof, will enter it as the final decree in the matter without further order.  