No. 2506 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Chester County, No. 141 Term, 1981.
William R. Keen, Jr., Coatesville, for appellant.
Andrea L. Bowman, Paoli, for appellees.
Cavanaugh, Wieand and Cirillo, JJ. Cavanaugh, J., files a concurring statement.
[ 333 Pa. Super. Page 49]
Does a pending action to partition real estate owned by joint tenants with right of survivorship survive the death of the joint tenant at whose instance the action was commenced?
[ 333 Pa. Super. Page 50]
The trial court held that the action did not survive and entered judgment on the pleadings in favor of the surviving joint tenant and against the executrix of the deceased joint tenant. We affirm.
Harold N. Allison and Robert O. and Mary Jane Powell, husband and wife, owned title to real estate in Chester County as joint tenants with right of survivorship.*fn1 On July 31, 1981, Harold Allison filed a complaint in equity seeking to obtain partition of the real estate. The complaint was not served on Mr. and Mrs. Powell until March 9, 1982. Meanwhile, on January 10, 1982, Harold Allison had died. Powells' answer to the complaint contained an averment that Allison had died and that title had passed to the Powells by right of survivorship. Allison's executrix was substituted as a party plaintiff for the decedent and filed a Reply containing New Matter in which she alleged an agreement "that the defendants would pay Twenty Thousand ($20,000.00) Dollars in cash to the plaintiff" for Allison's interest in the real estate. As evidence thereof, she attached a copy of a letter sent by Allison's attorney to Powells' attorney as follows:
Frank L. White, Jr., Esquire