No. 699 October Term, 1977, On Appeal from Order of the Common Pleas, Trial Div., Law, Declaratory Judgment, Philadelphia County, No. 3316, March Term, 1976.
James J. Martin, Philadelphia, for appellants.
Louis B. Priluker and Leonard Zack, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 252 Pa. Super. Page 246]
We are asked on this appeal to review a determination by the common pleas court of Philadelphia County that the plaintiff-appellee has a one-sixth interest in property originally deeded to his mother and stepfather and another person. For the reasons hereinafter set forth, we reverse.
The real estate in question was conveyed by deed dated January 16, 1967, to "John Ewald and Mary B. Ewald his wife and Joseph Ewald . . . as tenants in common with right of survivorship." The appellee is the son of Mary B. Ewald by her first marriage. Mary B. Ewald died intestate on November 8, 1973, and left appellee and John Ewald, her second husband, as her sole heirs at law. John Ewald, appellee's stepfather, died thereafter on August 20, 1974, and bequeathed his entire estate to his brother George Ewald. The other grantee to the original deed, Joseph Ewald, is still living.
The appellee filed a petition for a declaratory judgment asking the court below to interpret the deed and decide whether appellee's mother, Mary B. Ewald, had acquired any interest which passed to appellee upon her death. The case was submitted on stipulated facts and, after oral argument, the lower court held that the deed created a tenancy in
[ 252 Pa. Super. Page 247]
common in which each grantee owned a one-third interest. Thus, the court ruled that appellee owned a one-sixth interest in the property which represented his intestate share of his mother's estate. The court en banc affirmed this determination,*fn1 and a timely appeal was taken to our Court.
The appellants contend that the deed created a tenancy by the entireties in which John Ewald and Mary B. Ewald, his wife, held a one-half interest and upon the death of Mary B. Ewald her spouse John Ewald became the sole owner of their entireties interest. We agree.
The terms used in the deed are patently contradictory. It is basic property law that "a right of survivorship" is not associated with a "tenancy in common." The deed therefore cites a legal impossibility. The lower court recognized these facts and based its holding, that a tenancy in common was created among the parties, on: 1) the statutory presumption that a conveyance or devise carries with it no right of survivorship unless clearly expressed; 2) the emerging legal recognition that a married woman may hold property in her own right without any legal disabilities formerly associated with the legal fiction of the unity of husband and wife; and 3) the public policy against restrictions on alienation of property.
The lower court was correct when it noted that since the passage of the Act of 1812*fn2 there is a presumption that a conveyance or devise to two or more persons, not husband or wife or trustees, carries with it no right of survivorship unless clearly expressed. Zomisky v. Zamiska, 449 Pa. 239, 241, 296 A.2d 722, 723 (1972); Michael Estate, 421 Pa. 207, 211, 218 A.2d 338 (1966). Thus, the law in our Commonwealth is that unless the terms of the agreement expressly or by necessary implication call for a ...