Semenza v. Alfano

279 A.2d 29, 443 Pa. 201, 1971 Pa. LEXIS 902

• Court: Supreme Court of Pennsylvania
• Decided: June 28, 1971
• Docket: Appeals, 189 and 227
• Status: Published

Opinions

Opinion by

Mr. Justice O’Brien,

Anthony J. Semenza (Anthony) and Carmella P. Alfano (Carmella) were once married to each other. Their divorce on February 23, 1961, did not terminate their relationship. Apparently their marriage foundered on economic difficulties. Subsequent to their divorce, Anthony’s business prospered and the couple began to discuss the possibility of remarriage. In September of 1964, Carmella let Anthony know that if he were to “put a roof over her head and that of their son” she would remarry him. This was what Anthony wanted to hear. He wasted no time in making a $1,000 downpayment on a home a few days later. The couple received a deed on October 5, 1964, reciting a consideration of $26,500 and naming “Anthony J. Semenza and Carmella P. Alfano” as the grantees. Anthony advanced his own funds in an amount sufficient to make up the difference between the purchase price and closing costs and the $18,000 which he borrowed on a mortgage payable in monthly installments over a twenty-year period.

The re-establishment of the family unit died before it began. Although Anthony had paid all of the taxes and made all of the mortgage payments, he had not paid the persons with whom Carmella had arranged to decorate and furnish the home. When Carmella learned this, she changed her mind. The marriage was off. But Carmella’s name was still on the deed.

Anthony filed a complaint in equity wherein he sought to require Carmella to reconvey to him her interest in the house which he had purchased but with her as one of the co-tenants on the deed. After taking testimony, the chancellor found that the transfer of the property to Carmella was a conditional gift and decreed that Carmella must reconvey her individual one-half interest in the real estate to Anthony. Both parties filed exceptions which were dismissed and the decree nisi was entered as a final decree; both parties appealed.

We need not deal with Anthony’s appeal, which seems to be concerned with alleged errors by the chancellor in not accepting his theory of the case that Carmella perpetrated a fraud upon Anthony, unjustly enriching herself by using undue influence and taking advantage of a confidential relationship. Our decision today makes Anthony’s appeal moot.

The chancellor’s decree was based on the rule of antenuptial conditional gifts expounded in 28 C.J. 651 and most recently stated in Pavlicic v. Vogtsberger, 390 Pa. 502, 136 A. 2d 127 (1957), where we quoted our opinion in Stanger v. Epler, 382 Pa. 411, 415, 115 A. 2d 197 (1955): “A gift to a person to whom the donor is engaged to be married, made in contemplation of marriage, although absolute in form, is conditional; and upon breach of the marriage engagement by the donee the property may be recovered by the donor.” Carmella argues that Pavlicic is totally inapplicable since it involved the transfer of personal property. Instead, it is Carmella’s contention that since the chancellor expressly found no fraud and no confidential relationship, the admission of parol evidence to show that the transfer of real estate was a conditional gift violates the Statute of Frauds.

We do not agree. The promise to return an ante-nuptial gift made in contemplation of marriage if the marriage does not take place is a fictitious promise implied in law. There need not be any promissory assent, either written or unwritten. Consequently, the Statute of Frauds does not apply to such promises. See 37 C.J.S. 229. In the words of Section 2 of Pennsylvania’s Statute of Frauds, Act of April 22, 1856, P. L. 532, §4, 33 P.S. §2: “. . . [W]here any conveyance shall be made of any lands ... by which a trust . . . shall . . . arise ... by implication ... of law . . . then and in every such case such trust . . . shall be of the like force and effect as if this act had not been passed.”

The case cited by Carmella, Besterman v. Besterman, 263 Pa. 555, 107 Atl. 323 (1919), does not deal with an antenuptial gift and is, therefore, not in point.

As we wrote in Truver v. Kennedy, 425 Pa. 294, at 305, 229 A. 2d 468 (1967), quoting from Justice Cardozo, in Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378 (1919), “A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest equity converts him into a trustee.” The receipt of an antenuptial gift in contemplation of a marriage which never takes place is just such a circumstance.

We agree with the court en banc’s opinion: “. . . [W]e find it most difficult to believe, under the circumstances here present, that a former husband of limited income would purchase a $28,000.00 home for himself and his former wife, mutually agree as to decor and furnishings, only for the purpose of providing the former wife with a gift, as defendant would have us believe.”

Decree affirmed. Each party to bear own costs.

Mr. Chief Justice Bell took no part in the consideration or decision of this case.