Rigby v. Rigby, 27

• Decision Date: 23 April 1952
• Docket Number: No. 27,27
• Court: Court of Chancery of Delaware
• Parties: RIGBY v. RIGBY. Civ. A.

Page 126

88 A.2d 126

32 Del.Ch. 381

RIGBY v. RIGBY.

Civ. A. No. 27.

Court of Chancery of Delaware, Kent County.

April 23, 1952.

Herman C. Brown, Dover, for plaintiff.

Everett F. Warrington, Georgetown, for defendant.

BRAMHALL, Vice Chancellor.

Plaintiff and defendant are husband and wife, having been married on March 1, 1916, and having resided and cohabited together until their separation in 1948. During their married life defendant worked at times at different jobs, but mostly he was engaged in farming. Plaintiff looked after the housework and for a time at least was employed in Elkton, Maryland. According to plaintiff's testimony, she also worked at a tomato factory in Wyoming. Plaintiff testified that she did the housework and also assisted in feeding and milking a herd of cows on the farm of plaintiff and defendant; that with her own money she purchased several cows, from which the herd in existence at the time of the separation was raised; that it was understood between plaintiff and defendant that if and when the cattle were sold each was to have one-half of the proceeds of the sale; that defendant also purchased several cows, but that, for various reasons, the cows purchased by defendant had nothing to do with the raising of the herd in question. It was further established that in the latter part of 1938 or early part of 1939, defendant was adjudicated a bankrupt; that plaintiff did not file a petition in bankruptcy; that the cattle on the farm were listed in the schedule in bankruptcy filed by defendant; that in March of 1939, upon application of the trustee, these cattle were sold by the trustee at private sale to one Mary R. Stafford, sister of defendant, now deceased, for the sum of Two Hundred Sixty-five Dollars ($265.00); that said Stafford left the cattle on the farm occupied by plaintiff and defendant; that the sister was never paid for these cattle by either plaintiff or defendant; that after the separation of plaintiff and defendant and after the institution of these proceedings, the cattle were sold by defendant for the sum of Seventeen Hundred Ninety-one Dollars and eighty-five cents ($1791.85), which sum defendant testified had been retained by him intact.

Defendant denied that plaintiff did anything on the farm except the housework or that she ever worked in any jobs except for a short time at Elkton. He further denied the plaintiff had purchased any of the cattle in question or ever paid any sum on account of these purchases. In substantiation of his contention as to the title to the cattle, defendant produced three receipts, purporting to show that they were purchased by him in his name alone. Apparently, most of the herd in existence at the time of the separation of the parties came from these three cows. There is no evidence that the sister ever resold the cattle to either the plaintiff or defendant, or both, although defendant claims he is now the owner thereof.

Plaintiff contends that the cattle were held by her and defendant as tenants by the entireties and has come into this court asking for an accounting therefor. Defendant contends that the cattle were his own property and that plaintiff never had any interest therein.

In the consideration of this case it becomes necessary to determine whether or not plaintiff or defendant, or both, owned the cattle in question and the nature of such ownership.

In order to create a tenancy by the entireties certain characteristics must be present, namely: unity of time, title, interest and possession, as well as the relationship of husband and wife at the time of its creation. There must also be a unity of ownership. In re Cochran's Real Estate, Del.Orph., 66 A.2d 497. It follows, therefore, that the title must be acquired by both husband and wife at the same time and in the same instrument, if there should be an instrument, or, in the absence of an instrument, in the same transaction. Neither party may obtain title separately at different times or in different instruments. Pegg v. Pegg, 165 Mich. 228, 130 N.W. 617, 33 L.R.A., N.S., 166.

According to the weight of authority and the decisions in this state, a tenancy by the entireties may exist in personal property. Hoyle v. Hoyle, Del.Ch., 66 A.2d 130, Ciconte v. Barba, 19 Del.Ch. 6, 161 A. 925, Rauhut v. Reinhart, 22 Del.Ch. 431, 180 A. 913. However, the same rules governing the creation of an estate by the entireties in real estate apply equally to the...