No. 3049 PHILADELPHIA, 1981, Appeal from the Order of May 27, 1981 in the Court of Common Pleas of Lancaster County, Civil Division, No. 18 Page 12 Equity.
Larry B. Maier, Ephrata, for appellant.
John L. Sampson, Lancaster, for appellee.
Hester, Johnson and Popovich, JJ. Popovich, J., concurs in the result.
[ 315 Pa. Super. Page 162]
Mildred R. Keen (hereinafter "decedent") and appellant, Edward B. Keen, were married on June 19, 1937 in Bel Air, Maryland. On October 30, 1948, they purchased real estate, as tenants by entireties, situate in Lancaster County, Pennsylvania, and comprising some twenty-four (24) acres. From 1949 through 1961, decedent and appellant conveyed portions of the above real estate in five (5) separate transactions so that, at the commencement of this action below, approximately twenty-three (23) acres remained.
Decedent and appellant divorced on October 7, 1977. One month thereafter, decedent filed a Complaint in Equity in the Court of Common Pleas of Lancaster County asking for partition of the aforementioned real estate and the appointment of a trustee for sale of the property and equitable distribution of the net proceeds. On January 17, 1978, before appellant filed any responsive pleading to the Complaint, decedent died. Shortly thereafter, appellee, as administrator of decedent's estate, was substituted as plaintiff in the lower court proceeding.
On August 10, 1978, appellant filed preliminary objections, including a demurrer, seeking dismissal of the Complaint on grounds that full title to the real estate passed exclusively to him on the decedent's date of death as the surviving tenant of a tenancy by entireties. The lower court denied the demurrer on September 27, 1978. The lower court held that the tenancy by entireties was actually severed upon the mere filing of the partition action; consequently, full and exclusive title to the twenty-three (23)
[ 315 Pa. Super. Page 163]
acres did not pass to appellant as the surviving spouse. Instead, the property was partitioned into two equal shares.
Following protracted proceedings involving the filing of amended complaints, preliminary objections, briefs, answers and amended counterclaims, the lower court entered a stipulation and order, dated May 28, 1981, permitting either party to appeal from the order and affirming the earlier partitioning of the real estate into a one-half fee simple interest for decedent's estate and the same one-half interest for appellant.
Appellant's exceptions to the May 28th order were denied by an Order of Court, dated November 6, 1981, which reaffirmed the lower court's original order of partition. Appellant appeals from this latest order of November 6, 1981.
We must decide whether the mere filing of a partition action after divorce under an Act of 1927 operates as the termination of a tenancy by entireties and a conversion of the entireties estate into a tenancy in common. As is quite often the case, we address an issue not yet settled by our appellate courts; therefore, we consider the history of estates in ...