No. 2603 October Term, 1979, Appeal from the Judgment entered December 3, 1979, in the Court of Common Pleas of Montgomery County, Civil Division-Equity, No. 78-201.
Bernard J. McLafferty, Norristown, for appellant.
Alison Douglas Knox, Philadelphia, for appellee.
Hester, Cavanaugh and Van der Voort, JJ.
[ 283 Pa. Super. Page 552]
Appellant George V. Edel brings this appeal from an order of the court below dismissing his exceptions to the Chancellor's findings of fact and conclusions of law. At issue is the proper construction of a 1964 deed conveying a parcel of land to appellant and to several of his relatives.
Prior to January 20, 1964, appellant and his sister Regina M. Edel were the sole owners of a piece of commercial property located at Kensington and Torresdale Avenues in Philadelphia. On January 20, 1964, the premises were transferred by deed of gift to appellant, his sister Regina, his brother Joseph and Joseph's wife Marianne Ryan Edel. The allocation of unequal, undivided interest among the four grantees appears in the deed in the following language:
[ 283 Pa. Super. Page 553]
(an undivided one-fifth interest or moiety to vest in the said George V. Edel, singleman, and another undivided one-fifth interest or moiety to vest in the said Regina M. Edel, singlewoman; and the remaining undivided three-fifth interest or moiety to vest in the said Joseph Edel and Marianne Ryan Edel, his wife, as tenants by the entireties).
All of the named grantees in the deed, with the exception of appellant George V. Edel, are now deceased. His sister Regina died testate on February 18, 1969, naming as her sole heir her brother, the appellant. Marianne Ryan Edel died on February 17, 1972, and her husband Joseph died on January 19, 1973. The appellee, George A. Edel, is the only child and heir of Joseph Edel and executor of his estate. After the death of his father, George A. Edel collected all of the rents from the subject property and remitted 40% of the net rent to appellant retaining 60% for himself. On January 5, 1976, appellant filed the instant equity action seeking to enjoin his nephew, appellee, from recovering any rents or interfering with appellant's efforts to collect the rents from the property. Appellant contended that as the sole survivor of the original grantees he takes the entire fee by the right of survivorship and that the appellee has no cognizable interest in the realty. The chancellor, after hearing testimony and receiving exhibits, made findings of fact, conclusion of law, and filed an opinion and decree nisi dismissing the complaint on August 23, 1979. Exceptions were dismissed by final decree and this appeal followed.
Appellant argues that the deed of January 20, 1964 conveyed the property in three shares: 1) to himself, a one-fifth interest; 2) to Regina, a one-fifth interest; 3) to Joseph and Marianne Edel, husband and wife, a three-fifths interest. Appellant contends that his sister and he held their one-fifth shares as joint tenants with the right of survivorship; that Joseph and Marianne Edel held their three fifths shares as tenants by entirety; and that, as among the three co-tenancies, there was a right of survivorship. While appellee is willing to concede the first two propositions, he is unwilling
[ 283 Pa. Super. Page 554]
to concede the third, contending that, as between appellant and the Joseph/Marianne Edel estate by entirety, there was only a tenancy in common with no right of survivorship. We agree with the court ...