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BALKIEWICZ v. ASENAVAGE. (03/13/62)

March 13, 1962

BALKIEWICZ, APPELLANT,
v.
ASENAVAGE.



Appeal, No. 67, Jan. T., 1962, from judgment of Court of Common Pleas of Schuylkill County, May T., 1961, No. 10, in case of Louise Balkiewicz v. Stella Asenavage, Anna Kravitz, Adam Balkiewicz, Jr. et al. Judgment affirmed.

COUNSEL

W. J. Krencewicz, for appellant.

Joseph A. Zane, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 406 Pa. Page 502]

OPINION BY MR. JUSTICE MUSMANNO

In July, 1944, Louise Balkiewicz, the plaintiff in this case, and Adam Balkiewicz, both having been married previously, their respective spouses being deceased, married one another and maintained the marital status until December 18, 1960, when Adam died. Each spouse had brought to the marriage a brood of children and, as occasionally happens in such a relationship, the union of the individual parents did not bring about a harmonious amalgamation of the two sets of offsprings. Thus, on January 20, 1956, Adam, without the joinder of his wife, conveyed to his eight children of the former wife all the property that he had acquired prior to his marriage with Louise.

Upon Adam's death, Louise filed an action in ejectment in the Court of Common Pleas of Schuylkill County against Adam's children (there are eight) to recover possession of an undivided one-third interest in the property he had conveyed to them.

One of the defendants filed preliminary objections in the form of a demurrer, which were sustained by the court, and the plaintiff appealed.

That Mrs. Balkiewicz owns an undivided one-third interest in the property thus conveyed without her joinder is unquestioned. The Intestate Act of 1947, P.L. 80, § 5 (20 P.S. § 1.5), provides: "The shares of the estate to which the widow is entitled shall be in lieu and full satisfaction of her dower at common law, so far as relates to real estate of which the husband dies seised; and her share in real estate aliened by the husband in his lifetime, without her joining in the conveyance,

[ 406 Pa. Page 503]

    marriage so that the widow could have no intestate rights in the conveyed property. The plaintiff concedes that the rule at common law, as stated in Pringle v. Gaw, supra, declared that a widow is not a tenant in common with the grantees of property conveyed by her husband without her joinder. The plaintiff argues, however, that this common law rule was changed when the legislature, in the enactment of the 1917 and 1947 Intestate Acts, codified the widow's interest in her husband's property of which he died seised and provided that such interest was to be in lieu and in full satisfaction of her common law dower and provided also that her interest in real estate aliened by him during his lifetime without her joinder would be the same as her interest in the real estate of which he died seised.

The plaintiff seeks to support this argument by quoting from Hanley v. Stewart, 155 Pa. Superior Ct. 535, as follows: "Since the Intestate Act of June 7, 1917, P.L. 429, the interest of a widow in the real estate of which her husband died the owner in fee, intestate, is not dower or a life estate. It is an absolute estate, of the same nature as that passing to his child or children, and ...


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