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LAZARE v. LAZARE (11/13/50)

November 13, 1950

LAZARE
v.
LAZARE, APPELLANT



Appeal, No. 200, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, July T., 1950, in Equity, No. 124, in case of Rose Bertha Lazare v. Helen Ristick Lazare. Judgment affirmed.

COUNSEL

John Duggan, Jr., with him James F. Callahan, for appellant.

John B. Nicklas, Jr., with him Henry S. Moore and McCrady & Nicklas, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Lander and Chidsey, JJ.

Author: Drew

[ 365 Pa. Page 592]

OPINION BY MR. CHIEF JUSTICE DREW

This action in ejectment was instituted in the Court of Common Pleas of Allegheny County to gain possession of real property presently occupied by Helen Ristick

[ 365 Pa. Page 593]

Lazare, defendant. From a judgment entered on the pleadings in favor of plaintiff Rose Bertha Lazare, defendant has brought this appeal.

Rose Bertha Lazare was the wife of Corneille Bart Lazare when the house, which is the subject matter of this action, was conveyed to her and her husband in June, 1940, as tenants by the entireties. In January, 1946, Lazare obtained an absolute divorce from plaintiff, and shortly thereafter married defendant who went to live with him in this house. On January 30, 1950, he died, leaving defendant in possession of the house which plaintiff now claims as surviving tenant by the entireties.

This appeal raises the question of the effect of the Act of May 10, 1927, P.L. 884, on plaintiff's right to possession of the property in contest. The common-law rule as recognized by this Court in Alles v. Lyon, 216 Pa. 604, 66 A. 81, has been that where a husband and wife hold an estate as tenants by entireties and they are subsequently divorced, the divorce does not change the estate into a tenancy in common. However, defendant contends that the Act of 1927 controls the instant case, and that Section 3 of the Act changes the common-law rule so that a tenancy in common in the property vests immediately in each party upon the effective date of their divorce, without any further action on their part.

Section 3 of the Act of 1927, supra, provides, inter alia: "In any case where a husband and wife shall hereafter acquire property as tenants by entireties, and shall be divorced, the interest of each of the respective tenants by entireties, subsequent to said divorce, shall be conclusively deemed to be one-half of the value of the property, and, to accomplish ...


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