Appeal from the October 26, 1984, order of the Superior Court of Pennsylvania, filed at Docket No. 43 Pittsburgh, 1983, reversing the September 24, 1981, order of the Court of Common Pleas of Fayette County, Civil Division, filed at No. 1604 of 1981, G.D.,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., joins in this opinion and files a concurring opinion. Larsen and Hutchinson, JJ., file a concurring opinion.
The issue in this appeal is whether the death of a tenant by the entireties, who has instituted an action for partition of the entireties property, operates to terminate the action and to vest the disputed property in the surviving tenant.
On October 14, 1981, appellee's decedent, Anna M. Sadowski, filed a Complaint in Equity against appellant, William B. Sadowski, seeking equal division of all assets held by them as tenants by the entireties. The parties were married in 1936 and separated in May of 1980, whereupon Mrs. Sadowski left the marital residence to live with her daughter, Jacqueline Victoria Clingerman. In her complaint Mrs. Sadowski alleged that without her knowledge or consent appellant had in May of 1980 transferred their joint account at Gallatin National Bank, containing a balance of $326,000.00, into an account in his name alone and that since that time her husband had made substantial withdrawals from the account, refusing Mrs. Sadowski any access to the
funds contained therein. Mrs. Sadowski further alleged that appellee had liquidated most of their model train collection,*fn1 worth approximately $500,000.00, and had secreted the money realized from the sale into a private account for his exclusive benefit, withholding the whereabouts of the unsold trains from Mrs. Sadowski.
Mrs. Sadowski asked the court to order appellant to account for all funds jointly owned by the parties, as well as for all cash, coins, art, furniture and furnishings which may have been sold or removed from the marital residence since May of 1980. She additionally sought a permanent injunction to restrain appellant from further depleting joint assets, and an equal division of all funds improperly transferred or converted by appellant along with all other property owned by them as tenants by the entireties.
Anna M. Sadowski died on May 16, 1982. The action was continued by her executrix, Jacqueline Victoria Clingerman,*fn2 appellee herein. Appellant subsequently moved for judgment on the pleadings on the grounds that the equity action had abated upon Mrs. Sadowski's death, and all the disputed property had passed to him as the surviving tenant by the entireties by operation of law. The motion was granted, and appellee's action was dismissed with prejudice. On appeal the Superior Court vacated and remanded, holding that appellee would be allowed to proceed as plaintiff and prosecute the equity action. 335 Pa. Super. 514, 485 A.2d 11. Appellant filed a petition for review which we granted in order to consider the question whether the death of a tenant by the entireties who has instituted an action in partition of the entireties property results in the abatement of the action and the passing to the surviving spouse of unrestricted title to the property. For the reasons which follow we hold that it does not.
A tenancy by the entireties is a unique form of co-ownership grounded in the common law concept that husband and wife were but one legal entity. Ladner on Conveyancing in Pennsylvania, § 1.08 (4th ed. 1979). It exists when property, either real or personal,*fn3 is held jointly by a husband and wife, with its essential characteristic being that each spouse is seised of the whole or the entirety and not a divisible part thereof. In re Gallagher's Estate, 352 Pa. 476, 43 A.2d 132 (1945). Neither spouse in a tenancy by the entireties may independently appropriate property to his or her own use to the exclusion of the other, Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934), and neither spouse, acting independently, may sever the estate by, for example, conveying part of the property away. Backus v. Backus, 464 Pa. 380, 346 A.2d 790 (1975); Del Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974).
A tenancy by the entireties is also characterized by the right of survivorship; upon the death of one spouse the survivor becomes the sole owner of the entireties property. In re Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964); Teats v. Anderson, 358 Pa. 523, 58 A.2d 31 (1946); Porobenski v. American Alliance Insurance Co., 317 Pa. 410, 176 A. 205 (1935).
Because a tenancy by the entireties is grounded in the unity of the marital relationship, it can be severed only in certain limited circumstances. It is, of course, terminated upon the death of one of the co-tenants. During the parties' lifetimes it may be severed by: a joint conveyance of the estate, Biehl v. Martin, 236 Pa. 519, 84 A. 953 (1912); divorce, 68 P.S. § 501; or mutual agreement, either express, In re Prichard, 359 Pa. 315, 59 A.2d 101 (1948), or
implied, In re Brose's Estate, 416 Pa. 386, 206 A.2d 301 (1965). An implied mutual agreement to terminate a tenancy by the entireties was first recognized by this Court in Berhalter v. Berhalter, supra. In that case we concluded that the action of a wife, separated from her husband, in withdrawing substantial funds from their entireties bank account without her husband's knowledge for the purpose of moving to France was tantamount to an offer by her to the husband to destroy the entireties account. The husband's subsequent institution of suit for division of the fund constituted an acceptance of the offer. In Steminski v. Steminski, 403 Pa. 38, 169 A.2d 51 (1961), where an estranged wife brought an action for an accounting against her husband on the basis that he had wrongfully appropriated to his own use jointly owned bonds and bank accounts, this Court stated:
A violation of the rules by one spouse's appropriating the property to his own use works a revocation of the estate [by the entireties] by the fiction of appropriation's being an offer of an agreement to destroy the estate and an acceptance of that offer when the other ...