The opinion of the court was delivered by: MILLER
The plaintiff, John B. Barrett, brought this action in equity against his former wife, Delphine S. Barrett as defendant, and her brother, John J. Sullivan as co-defendant, for a disclosure of the contents of a safety deposit box taken by Delphine S. Barrett on September 30, 1946, which the plaintiff claims was his property, for an accounting of the property so taken, and for a return to the plaintiff of property alleged by him to have been so appropriated without authority. The defendant, Delphine S. Barrett, by her answer claims that she returned to the plaintiff the personal property in the safety deposit box which belonged to him; that the remainder of the personal property so taken belonged to her by virtue of a gift from the plaintiff to her; that $ 7,700 of it has been used to purchase a home and household furnishings for the use of herself and her three children; that although the title to the real estate so purchased had been taken in the name of the co-defendant John J. Sullivan, the beneficial interest to the same belonged to her and the children; and that the plaintiff has no valid claim to the property so taken from the safety deposit box and not already returned to the plaintiff. The defendant also claimed that on October 4, 1945 the plaintiff compelled her to withdraw from her individual bank account and turn over to him approximately $ 1,230.92, which was her individual property, for which amount she sought judgment against the plaintiff. The action was treated by the District Court as an equitable one with the result that defendant's request for a jury trial was overruled and the case was heard by the Court without a jury. Defendant waived trial by jury on her cross-claim against the plaintiff. The Court finds the facts and conclusions of law applicable thereto as follows:
The plaintiff and the defendant were married on July 6, 1935 and thereafter made their home in New Castle, Pennsylvania. They separated on September 29, 1946, following which the wife moved to Cleveland, Ohio. She obtained a divorce from the plaintiff in Pennsylvania on January 17, 1947. Their three children, approximately 11, 9 and 5 years of age at the time of the trial, lived with the mother. Plaintiff filed this action on November 22, 1948, at which time he was a citizen of Pennsylvania, and the defendants were citizens of Ohio. The amount in controversy is more than $ 3,000 exclusive of interest and costs.
The plaintiff was and is a successful doctor in New Castle, Pennsylvania. He entered the armed services on or about September 19, 1942 and thereafter until September 1945 was continuously away from home in New York, San Francisco and on the high seas. He executed and delivered to his wife a Power of Attorney to handle his affairs during his absence. On September 24, 1942, the wife leased from the Union Trust Company of New Castle, Pennsylvania, a safety deposit box in her name with right of access thereto in the husband upon qualifying by signing the contract, which, however, was never done by him. On May 14, 1946, a new contract for the same safety deposit box was executed in their joint names, and thereafter both parties had access thereto.
In September 1942, the plaintiff purchased $ 5,000 of Government bonds and placed them in his own name, $ 5,000 of Government bonds which he placed in the name of his daughter Delphine, and $ 5,000 worth of Government bonds in the name of his son Michael. The bonds were placed in the safety deposit box. The ownership of these bonds is not in dispute, and the bonds in the name of the plaintiff are in his possession.
In December 1942, the wife purchased with available funds of the husband, $ 5,000 of Government bonds, issued to Bearer, which were placed in the safety deposit box.
In June 1945, while the husband was in San Francisco, the wife decided there should be a change in one of the husband's previous investments. She wrote him to that effect and he replied by agreeing and telling her to do as she saw fit in the matter. She sold the investment and used the proceeds, to which she added about $ 25, in purchasing four $ 1,000 and eight $ 100 Government bonds issued in the name of the husband 'or' wife. She placed them in the safety deposit box.
The wife also at another time purchased three $ 100 Government bonds which she had issued in the name of the husband 'or' wife and placed them in the safety deposit box.
In June 1946, the husband purchased $ 5,000 of Government bonds which he had issued in the name of the husband 'or' wife. In turning them over to his wife, he told her that since she did not want a fur coat or an automobile she could have the bonds instead and do what she wanted with them. They were placed in the safety deposit box.
There was also placed in the safety deposit box some Government bonds in the name of the children, some insurance policies of the children, and other miscellaneous papers.
There was also in the home of the couple a strong box in which was kept miscellaneous cash. At the time of the separation, there was approximately $ 300 in cash in this box which the wife took with her.
The wife had no independent source of income. She gave assistance to her husband in the performance of his professional duties by answering the phone at their home and taking care of calls to him when he was absent from the home. All of the bonds above referred to were purchased with money earned by the husband. The bonds purchased in the joint names of husband 'or' wife were not interest-coupon bonds, but were bonds purchased at a discount from their maturity face value. While the husband was in the Army approximately two-third of his monthly pay was sent by the Government to the wife, who used so much of it as was necessary for the support and maintenance of herself and the children. The wife kept the husband fully advised of the transactions which she handled during his absence.
The defendant had a savings account in the First National Bank of Lawrence County, opened on October 14, 1935. It contained $ 975 when the plaintiff entered the Army. During his absence she deposited a refund of $ 537.87 which was obtained through an overpayment of income tax by the husband, and some small collection which she made of outstanding accounts owed to the husband. She withdrew $ 450 during his absence. After the husband's return to civil life, he told her that he needed the money to buy a new car for use in his business and at his request she withdrew on October 4, 1945 the entire balance of $ 1,230.92 and turned it over to him.
The marriage proved unsuccessful after the plaintiff returned from military service and ultimately ended in a vigorous quarrel and separation on the evening of September 29, 1946, At 9:02 a.m. September 30, 1946, the wife went to the Union Trust Company, secured access to the safety deposit box and withdrew the entire contents of the box. She went to the office of her attorney and left with him for delivery to her husband various papers and documents which she recognized as his property. This included insurance policies, the deed to the home, and $ 5,000 of Government bonds issued in his name. On or about October 2, 1946, she moved to Cleveland, Ohio, taking the remaining ...