Appeal from judgment of Court of Common Pleas of Venango County, Aug. T., 1967, No. 75, in case of The Pennsylvania Bank and Trust Company, executor of estate of Ardus Clair Thompson, deceased, et al. v. William J. M. Thompson.
Bruce L. Smith, with him Eckels, Blystone, Fuller & Kinnunen, for appellants.
Harry W. Gent, Jr., with him Gent, Daniels and Thompson, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen dissents. Mr. Justice Musmanno did not participate in the decision of this case.
This appeal is from a determination of the court below that A. C. Thompson and the appellee acquired title to certain parcels of land described in a deed from Clarence J. Semple dated September 29, 1956, as joint tenants with the right of survivorship. The sole question presented for our consideration is whether the trial court was correct in holding that this deed to William J. M. Thompson and A. C. Thompson, brothers, as "tenants by the entireties" in fact created a joint tenancy with right of survivorship or, as appellant contends, a tenancy in common.
As a first principle, we must recognize that joint tenancies are not favored by the law and that a statute of the Commonwealth eliminates the survivorship feature from joint tenancies unless it is created by express words or by necessary implication. See Act of March 31, 1812, P. L. 259, 20 P.S. § 121. But it is also true that no particular form of words is required to manifest such an intention. Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948). Therefore, if there is no clear intention in the language of this conveyance the statute would help us solve the uncertainty, but it does not lift from our shoulders the responsibility to determine if these words express a clear intent.
There was no evidence of intention presented to the trial court other than that contained in the conveyance itself; thus we will restrict our examination to the deed. Therein is the declared intention of the two brothers to take "as tenants by the entireties." This of course was impossible since that tenure is limited to a dual ownership by husband and wife. Therefore it is our function to determine that form of tenancy which will most nearly effectuate their intent. In Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948), this Court held that a joint tenancy best fulfills an intent to create a tenancy by the entireties because both contain the survivorship feature. This holding is consistent with decisions of this Court and courts in other jurisdictions. See Bove v. Bove, 394 Pa. 627, 149 A.2d 67 (1959); Cobb v. Gilmer, 365 F. 2d 931 (D.C. Cir. 1966); Sams v. McDonald, 117 Ga. App. 336, 160 S.E. 2d 594 (1968); Mitchell v. Frederick, 166 Md. 42, 170 A. 733 (1934); Morris v. McCarty, 158 Mass. 11, 32 N.E. 938 (1893). But see Perrin v. Harrington, 146 App. Div. 292, 130 N.Y.S. 944 (1911).
The reasons for this conclusion seem quite clear. The most important feature of a tenancy by the entireties
is that the entire estate is owned completely by the survivor. It can of course be argued that the impossibility of one cotenant to sell or pledge his interest or compel a partition of the property is an equally important characteristic of a tenancy by the entireties. But in essence this aspect of an entireties tenure is merely a means to guarantee the right of the survivor to take and is therefore subordinate in importance to the right of survivorship. And even if it is conceded that the inalienability feature is equally important, it does not necessarily follow that because there is no estate for unmarried individuals which permits inalienability, the law should not recognize an intent to create a tenancy with a survivorship feature. This would at least fulfill part of the brothers' original goal of creating a tenancy by the entireties. To interpret otherwise and hold that the addition of the words "as tenants by the entireties" does not include the right of survivorship, would render those words meaningless. For what other effect could be given to the quoted words that would distinguish the tenancy these brothers tried to create from a tenancy in common, a tenure which would have been created if the deed had simply stated that it was a conveyance to William J. M. Thompson and A. C. Thompson? Clearly there is none.
Nor would it be proper to simply disregard the words "tenants by the entireties" as meaningless. These words are an expression of some intent which cannot be ignored entirely. See ...