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ZOMISKY ET AL. v. ZAMISKA (11/17/72)

decided: November 17, 1972.

ZOMISKY ET AL., APPELLANTS,
v.
ZAMISKA



Appeal from decree of Court of Common Pleas of Westmoreland County, No. 3848 in equity, in case of John Zomisky, also known as John Zamiska, Catherine Zamiska Marlow, Mary Zamiska Oesterling, Stephen A. Zamiskie, also known as Stephen Zamiska, Elizabeth Zamiska Faith, Julius M. Dombroski, Robert S. Dombroski, and Walter S. Dombroski, Jr. v. George Zamiska, also known as George Zamiskie, and Elizabeth A. Zamiska, also known as Elizabeth A. Zamiskie, his wife.

COUNSEL

Ned J. Nakles, with him David R. Gold, for appellants.

John W. Pollins, III, with him Calvin E. Pollins, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 449 Pa. Page 240]

Mike Zamiska and George Zamiska were father and son. On December 26, 1957, Mike Zamiska executed a

[ 449 Pa. Page 241]

    deed conveying the title in certain land to Mike Zamiska and George Zamiska "as joint tenants and as in common with the right of survivorship." Upon his father's death (intestate) on July 18, 1970, George claimed complete title in the land. Other children and grandchildren of Mike Zamiska, claiming the 1957 deed created only a tenancy in common in the grantees, instituted an action in equity asking the court to declare that George's ownership was limited to an undivided one-half interest.*fn1 The court below ruled the deed created a joint tenancy in the grantees with the right of survivorship and entered a decree granting the defendants' motion for judgment on the pleadings. This appeal followed.

At common law joint tenancies were favored, and the doctrine of survivorship was a recognized incident to a joint estate. But the courts of the United States have generally been opposed to the creation of such estates, the presumption being that all tenants, who are not husband and wife, hold jointly as tenants in common, unless a clear intention to the contrary is shown. Bambaugh v. Bambaugh, 11 S. & R. 191 (1824); Galbraith v. Galbraith, 3 S. & R. 392 (1817).

In Pennsylvania, by the Act of March 31, 1812, P. L. 259, 5 Sm. L. 395, § 1, 20 P.S. § 121, the incident of survivorship in joint tenancies (except where the grantees or devisees are husband and wife) was eliminated unless the instrument creating the estate expressly provided that such incident should exist. The Act of 1812 has repeatedly been held to be a statute of construction; it does not proscribe creation of a joint tenancy if the language creating it clearly expresses that intent. Teacher v. Kijurina, 365 Pa. 480, 76 A.2d

[ 449 Pa. Page 242197]

(1950); Lafayette v. Brinham, 363 Pa. 360, 69 A.2d 130 (1949); Redemptorist Fathers v. Lawler, 205 Pa. 24, 54 A. 487 (1903). Whereas before the act, a conveyance or devise to two or more persons (not husband and wife or trustees) was presumed to create a joint tenancy with the right of survivorship unless otherwise clearly stated, the presumption is reversed by the act, with the result that now such a conveyance or devise carries with it no right of survivorship unless clearly expressed, and in the absence of a clearly expressed intent to the contrary, the conveyance or devise creates not a joint tenancy, but a tenancy in common. Teacher v. Kijurina, supra; Lafayette v. Brinham, supra; Haggerty's Estate, 311 Pa. 503, 166 A. 580 (1933).

Since the passage of the Act of 1812, the question of survivorship has become a matter of intent (Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948)); and in order to engraft the right of survivorship on a cotenancy which might otherwise be a tenancy in common, the intent to do so must be expresed with sufficient clarity to overcome the statutory presumption that survivorship is not intended: Isherwood v. Springs First Nat. Bank, 365 Pa. 225, 74 A.2d 89 (1950); Mardis v. Steen, 293 Pa. 13, 141 A. 629 (1928). But it is also true that no particular form of words is ...


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