only. What, if anything, did the Act of 1949 add?
The Act of 1949
Again referring to the content and context placement of the proviso clause in the Act of 1927, we see the same proviso clause in almost the same words, placed within the confines of § 3 of the Act of 1949, not in § 1 as a modification or limitation or condition precedent by which the conversion of an estate by the entireties into an estate in common would be concluded or made operative. If the Legislature had intended that the proviso clause
modify § 1 so as to be a condition precedent for the conversion of estates by entireties to estates in common, it would have placed the proviso clause in § 1, not in § 3. Orlosky v. Haskell, supra; Whitaker Borough v. Pennsylvania Public Utility Commission, supra.
The Act of 1949 simply re-adopted and re-enacted the partition remedy and distribution of partition proceedings as it was set forth in the Act of 1927; and then it supplemented this remedy by its out-and-out declaration of conversion of estates by the entireties into estates in common for divorced spouses, generally. The declaration was new, and as such, it is difficult to assign the connective meaning which the petitioners urge in the Act of 1949 as against the pre-existing purposes and reasons as contained in the Act of 1927.
As the Legislature in 1927 was breaking with common law tradition relating to joint property of divorced spouses, it was also breaking with the principle of limited protection of judgment lien creditors of record. Just as it was erasing the fiction of the common law that a husband and wife were one, it was rejecting its corollary that the separate spouse's interest in an estate by the entireties, after divorce, was inalienable and immunized against judgment lien creditors of record.
The Act of 1949 was enacted without any substantial change and retained and continued the procedure enacted in 1927 for the liquidation of whole estates by entireties into cash, where one of the spouses requested a court of common pleas to do so. And since by the Act of 1927 divorced spouses already had the right to one-half of the value of the property in the proceeds received in the partition sale, the Act of 1949 merely added, and its sole contribution was, its declaration in § 1 "[that] whenever any husband and wife hereafter acquiring property as tenants by entireties shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value * * *".
Thus, the Legislature simply enlarged the scope of the Act of 1927 by decreeing that not only did divorced spouses have one-half interests in the property held by the entireties, which they could expose to partition proceedings, but also that, they "shall thereafter hold such property as tenants in common of equal one-half shares in value".
So that by the Act of 1949, two remedies became available to the parties. If both ex-spouses amicably agreed to sell the entire property, there was no problem and need for a statutory remedy; for both could then execute a deed for the whole title. In the event of obstinacy on the part of one of the spouses, the other spouse now had these two available choices: (a) a partition of the whole property in accordance with the provisions originally contained in the Act of 1927 by petition to the court of common pleas of the county where the property was situated, or (b) where it was feasible or marketable, a sale of the undivided one-half interest of the ex-spouse's property, simply, by a deed of conveyance (or for that matter by a devise or a gift).
I cannot resolve the Act of 1949, or its predecessor, the Act of 1927, to be ambiguous. Nevertheless, I shall mention here that the Legislature of Pennsylvania has enacted the Statutory Construction Act of May 28, 1937, P.L. 1019, Art. IV, § 51 et seq. *** In this Act are set out rules of guidance and interpretation that the intention of the Legislature may be ascertained by considering among other matters: (46 P.S. § 551 et seq.)
"§ 551. Construction of laws; legislative intent controls
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