Appeal, No. 285, Jan. T., 1957, from decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1952, No. 2199, in case of Konstanty Godzieba et ux. v. Carrie Godzieba. Decree modified and affirmed.
Ivan Michaelson Czap, for appellant.
I. Finkelstein, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
This appeal asks us to review a court decree ordering defendant to convey certain real estate to herself and her husband as tenants by the entireties.
In 1922, Stella, a child of Carrie and Konstanty Godzieba, born out of wedlock*fn1 was killed in an automobile accident. To obtain damages for Stella's wrongful death an action was instituted in the name of the mother under the Act of April 26, 1855, P.L. 309, as amended, 12 P.S. § 1602, and the sum of $2,900 was recovered. Although the suit was brought in the name of Carrie Godzieba alone it is clear that this recovery belonged jointly to both father and mother as a matter
of law. Waltz v. Pennsylvania RR Co., 216 Pa. 165, 171, 65 Atl. 401 (1907); Holmes v. Pennsylvania RR Co., 220 Pa. 189, 192-193, 69 Atl. 597 (1908).
In 1938 the remainder of the funds obtained in the wrongful death action, $1500, was used by the parties to purchase a property in Philadelphia, title to which was taken in the name of a son, Anthony Godzieba,*fn2 upon his oral promise to convey to his parents presumptively as tenants by the entireties. Loesch's Estate, 322 Pa. 105, 185 Atl. 191 (1936).
In 1945 Anthony conveyed title to his mother, Carrie Godzieba, alone. Konstanty, who had been living apart, did not learn of the transaction until 1948. When Carrie refused Konstanty's demand to convey the property to both of them as tenants by the entireties, Konstanty filed a complaint in equity in 1949 to impose a resulting trust upon the property for the benefit of himself and Carrie Godzieba, tenants by the entireties, and to compel Carrie to make an appropriate conveyance of the property. Because this action was brought in the name of Konstanty alone, the chancellor held that the failure to join Carrie as a party plaintiff was a fatal defect and so dismissed the complaint. In his opinion the chancellor went further, and by way of dictum, commented that the merits were adverse to Konstanty's contentions. We do not now pass upon the propriety of the chancellor's action; no appeal therefrom was taken. Instead, in 1952, ...