Anuszkiewicz v. Anuszkiewicz

• Decision Date: 23 February 1977
• Docket Number: No. 3--676A146,3--676A146
• Parties: Weronika ANUSZKIEWICZ, Plaintiff-Appellant, v. Roman ANUSZKIEWICZ and Zofia Anuszkiewicz, his wife, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 230

360 N.E.2d 230

172 Ind.App. 279

Weronika ANUSZKIEWICZ, Plaintiff-Appellant, v. Roman ANUSZKIEWICZ and Zofia Anuszkiewicz, his wife,

Defendants-Appellees.

No. 3--676A146.

Court of Appeals of Indiana, Third District.

Feb. 23, 1977.

Martin A. Karr, East Chicago, for plaintiff-appellant.

David M. Rybicki, of Callahan & Rybicki, East Chicago, for defendants-appellees.

HOFFMAN, Judge.

Plaintiff-appellant Weronika Anuszkiewicz commenced this action against defendants-appellees Roman Anuszkiewicz and Zofia Anuszkiewicz to recover proceeds from the sale of real estate formerly held by Weronika with her husband in a tenancy by the entireties. After a trial to the court on facts stipulated by the parties, judgment was entered for Roman and his wife Zofia. The sole issue raised on appeal concerns whether the proceeds of a sale of entirety property must accrue to the wife upon her husband's death even though he had deposited a portion of them in a joint bank account with his son.

The parties hereto having submitted a verified statement of facts are mutually bound by their stipulation. However we view only the pertinent portions, and these, in a light favorable to the trial court's determination, thus not construing as admitted facts obviously intended to be in controversy. Faught v. State (1974), Ind.App., 319 N.E.2d 843.

The statement of facts, in pertinent part, is as follows:

'VERIFIED STATEMENT OF FACTS

'1. The plaintiff herein, Weronika Anuszkiewicz, and one Kazmierz (sic) Anuszkiewicz were duly married on July 5, 1948, in England.

'4. That on September 26, 1959, the said plaintiff herein, Weronika Anuszkiewicz, and her husband, Kazmierz (sic) Anuszkiewicz, did, as husband and wife and as tenants by the entireties, acquire the following described real estate in the City of East Chicago, Lake County, Indiana, to-wit: Lot 35, except the North 9 feet thereof, in Block 16, in Calumet Addition to East Chicago, as per plat thereof, recorded in Plat Book 8, page 32, in the Office of the Recorder of Lake County, Indiana,

said real estate more commonly known as 4760 Parrish Avenue in said city, county and state.

'5. That on or about January 17, 1972, the said plaintiff herein and her said husband, Kazmierz (sic) Anuszkiewicz, did sell the above described real estate to the defendants herein, Roman Anuszkiewicz and Zofia Anuszkiewicz, husband and wife, for the sum of $40,000.00.

'6. The terms of the sale of said real estate were as follows, to-wit: a) The sum of $20,000.00 upon the execution of the Warranty Deed (January 17, 1972), and, which amount was paid to plaintiff, herein. b) The balance of the purchase price to be payable evidenced by a promissory note to that effect. (Correction as appears in original.)

'7. That the defendants herein did, and prior to the maturity date of the said promissory note, pay the balance of the said purchase price of $19,148.00 (discounting from the said balance sum of $20,000.00 an $852.00 credit for pro-ration of taxes and other items credited to purchasers) on the 4th day of April, 1972.

'8. That the said balance of the said purchase price in the sum of $19,000.00 was deposited to a Certificate of Deposit #SCE 4656 in the Peoples Federal Savings and Loan Association in East Chicago, Indiana, and which account was in the joint names of Kazimierz Anuszkiewicz and Roman Anuszkiewicz, one of the defendants herein.

'9. The plaintiff's husband, Kazimierz Anuszkiewicz, died on September 7, 1972, while on a visit to Poland in Europe, and that the balance of the purchased price paid by the defendants herein for the purchase of the said real estate which was held by a tenancy by the entireties between plaintiff herein and the said Kazimierz Anuszkiewicz was still in existance (sic) and had not been dissipated, divided, disbursed or disposed of prior to or at the time of the death of the said Kazimierz Anuszkiewicz, plaintiff's husband.

'10. That on October 10, 1972, and subsequent to the death of the said Kazimierz Anuszkiewicz, the defendant herein, Roman Anuskiewicz, did withdraw the said money from the said Certificate of Deposit Account #SCE 4656, and redeposited the said undisposed of purchase price balance money into a new Certificate of Deposit Account in the said Peoples Federal Savings and Loan Association of East Chicago, Indiana, under a Certificate of Deposit Account No. SCE 4846, in the joint names of Jerzy Anuszkiewicz or Roman Anuszkiewicz, and which account is still intact, undissipated or undisposed of and still contains the balance of the purchase price for said real estate.

'12. That pursuant to his father's request, by letter from Poland, prior to his father's death, the said defendant herein did transfer the Certificate of Deposit Account to his name and the name of his brother, Jerzy Anuszkiewicz, who is a resident of Poland and which said both accounts consisted of the balance of the purchase price for the said real estate described in plaintiff's complaint.'

As a general matter, property held by the entireties creates an estate owned by the husband and wife as one unit. Each is seized of the whole estate rather than an individual portion, so that upon the death of one, the survivor holds under the original grant. Accordingly no transfer of the property occurs between the spouses by survivorship. St. of Ind., Ind. Dept. of Rev. v. Est. of Weinstein (1967), 141 Ind.App. 395, 228 N.E.2d 23, rehearing denied, 141 Ind.App. 399, 229 N.E.2d 741 (transfer denied); Vonville v. Dexter (1948), 118 Ind.App. 187, 76 N.E.2d 856 (transfer denied). Such form of ownership has been recognized and supported for its essential characteristics of promoting marital security by restricting a third party's ability to diminish the entirety property through an execution or settlement against it. Mercer v. Coomler (1903), 32 Ind.App. 533, 69 N.E. 202 (transfer denied). Nevertheless this attribute is not intended to unduly restrict the alienation of entirety property under appropriate circumstances. Once a husband and wife have joined as grantors in the sale of real estate, the proceeds may be expended or kept in accordance with their mutual wishes. Rogers v. Shewmaker (1901), 27 Ind.App. 631, 60 N.E. 462 (transfer denied).

It is in this context that we consider the case at bar. Plaintiff-appellant Weronika Anuszkiewicz asserts that since the...