Appeal, No. 101, March T., 1951, from judgment of Court of Common Pleas of Washington County, Feb. T., 1951, No. 209, in case of M. W. Heatter, individually and as administrator, Estate of Joseph Lucas, deceased v. Matilda Lucas and Francis Lucas. Judgment vacated.
August L. Sismondo, for appellants.
H. Russell Stahlman, for appellee.
Before Drew, C.j., Stern, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from a declaratory judgment entered by the Court of Common Pleas of Washington County. The facts are not in dispute. The petitioner is a creditor and administrator of the estate of Joseph Lucas, deceased. During decedent's lifetime a certain farm, situate in Washington County was deeded to "Francis Lucas, a single man, and Joseph Lucas and Matilda Lucas, his wife." There is no pointed indication in the deed of what share was intended to pass to each of the grantees, the habendum clause providing, "To Have and To Hold the same unto and for the use of the said parties of the second part their heirs and assigns forever,...".
Francis is the son of Joseph and Matilda who were in fact husband and wife at the time the deed was executed on August 10, 1942. Joseph having predeceased Matilda on September 8, 1949, the marriage then still subsisting, Matilda contends that by the above deed Francis took an undivided one-half interest in the farm as a tenant in common with Joseph and Matilda who took the remaining half as tenants by the entireties; that upon Joseph's death she became the sole owner of the one-half interest formerly held by the entireties. The petitioner contends that each of the grantees took an undivided one-third interest in the farm; that the deed did not create a tenancy by the entireties and that at Joseph's death his undivided one-third interest in the realty is subject to sale for payment of his debts.
In a conveyance to "A", "B" and "C" in which "B" and "C" are husband and wife, there are three possible constructions: (1) the parties may each be deemed to
take undivided one-third interests without the creation of a tenancy by entireties as between the husband and wife (2) "A" may be deemed to take an undivided one-half interest as a tenant in common with "B" and "C", who hold the remaining one-half interest as tenants by the entireties (3) "A" may be deemed to take a one-third interest as a tenant in common with "B" and "C", who hold the remaining two-thirds interest as tenants by the entireties. It may be fairly stated that prior to the Married Women's Property Acts passed from time to time, such a conveyance by all the authorities, would have come within construction (2) above: Johnson v. Hart, 6 W. & S. 319 (1843); 26 Am. Jur., Husband and Wife, Section 74, page 700; 13 R.C.L., Husband and Wife, Section 126, pages 1103-4; 41 C.J.S., Husband and Wife, Section 31f, page 454; 30 C.J., Husband and Wife, Section 95g, page 564; 1 Coke on Littleton (1827), Section 291.187, page 853. The basis of such construction was the unity of husband and wife arising out of the marriage relationship. What effect, if any, is to be ascribed to the Married Women's Acts?
A conveyance of either real or personal property to a husband and wife, without more, vests in them an estate by the entireties and upon the death of either the survivor takes the whole: Bramberry's Estate, 156 Pa. 628, 632, 27 A. 405 (1893); Madden v. Gosztonyi Savings and Trust Company, 331 Pa. 476, 484, 200 A.2d 624 (1938). There is no rule of construction or other restraint which interdicts the creation of a tenancy in common (or joint tenancy) in which a unit held by the entireties constitutes one of the moieties or shares: See 132 A.L.R. 643-644. It was never intended in either Mauser v. Mauser, 326 Pa. 257, 259, 192 A. ...