Appeal, No. 82, Jan. T., 1959, from judgment of Court of Common Pleas of Delaware County, March T., 1956, No. 52, in case of Paul Sheridan, administrator of the estate of Catherine N. Sheridan, deceased, v. Charles E. Lucey, executor of the estate of Charles E. Lucey, deceased et al. Judgment affirmed.
R. Winfield Baile, with him James L. Shea, for appellant.
Thomas J. Reilly, with him Reilly & Pearce, for appellees.
Before Jones, C.j., Musmanno, Jones, Cohen and Mcbride, JJ.
OPINION BY MR. JUSTICE COHEN
The sole question on this appeal is whether the action for partition of real estate held by joint tenants with the right of survivorship abates upon the death of the complainant before judgment has been entered by the court. We conclude that the action does abate and the decedent's interest accrues to the survivor.
The undisputed facts reveal that appellant's-decedent, Catherine N. Sheridan was owner of the
premises in question and that on January 16, 1952, she conveyed her fee interest to herself and her brother-in-law and nephew, as joint tenants with the right of survivorship. On March 7, 1956, a complaint in partition was filed by appellant's-decedent, to which an answer containing new matter was filed. Before a reply ensued, the appellant's decedent died on January 11, 1957, leaving to survive her the two remaining joint tenants. The administrator then was substituted for the decedent and a reply to new matter was filed on January 10, 1958. However, appellee - brother-in-law died two days prior to the filing of this reply and his son (the remaining joint tenant) was substituted for him, whereupon, the court en banc, after argument, entered a judgment on the pleadings in favor of appellees.
Appellant argues that the commencement of the action of partition works a severance of a joint tenancy into a tenancy in common, so that the subsequent death of one of the tenants (appellant's decedent) does not work a divestiture of his interest in favor of the surviving tenant. Moreover, says appellant, two Acts of Assembly expressly provide for the survival of the interest of the decedent and permits the personal representative to proceed with the partition action. First, there is the Act of April 7, 1807, P.L. 155, 4 Sm.L. 398, § 4, 12 P.S. § 11, which provides that "No plea in abatement shall be admitted or received in any suit for partition, nor shall the same be abated by reason of the death of any defendant." Secondly, the Act of April 18, 1949, P.L. 512, § 601, 20 P.S. § 320.601 which provides that "All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants."
It is basic to the relationship of a joint tenancy that the four unities of time, title, interest and possession co-exist with the ...