Appeal from the Order Entered on April 22, 1986, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 6341 March, 1982.
Barbara J. Moleah, Philadelphia, for appellant.
Joseph T. Simon, Philadelphia, for appellee.
Wieand, Tamilia and Hester, JJ.
[ 369 Pa. Super. Page 256]
This action in equity to compel partition of real estate located at 1821 Georges Lane, Philadelphia, was instituted by Ethelcora DeLoatch against Arnold Murphy, appellee, on March 25, 1982. The trial court entered an order which granted partition and, on June 28, 1983, appointed a master to effect it. The master conducted a hearing and filed a report in which he recommended that appellee pay Ethelcora owelty*fn1 of twenty-five dollars, plus interest, and that title to the real estate be awarded to appellee upon payment of the owelty. The award was based on the master's
[ 369 Pa. Super. Page 257]
finding that Ethelcora's sole contribution to the purchase and maintenance of the property had been a twenty-five dollar deposit which she had made when the property was purchased. After Ethelcora filed exceptions, the trial court entered a final decree which adopted the recommendations of the master, and Ethelcora appealed. Ethelcora died on September 1, 1986, and the administratrix of her estate has been substituted as appellant. For brevity, we will refer to appellant's decedent as appellant. We reverse and remand for proceedings consistent with this opinion.
Appellant, who was at the time legally married to Raymond DeLoatch, began an amorous relationship with appellee in 1967 or 1968. They had one child born in 1968. On December 9, 1969, the subject property was purchased. The grantees on the deed were Arnold Murphy and Ethelcora A., "his wife." Appellee concedes that appellant is the person named in the deed. N.T., 10/26/83, at 8. Immediately following the granting clause, where the nature of the estate conveyed is customarily indicated, the deed provides that the property is granted to the grantees as "tenants by entireties."
The parties lived together at Georges Lane with their child and appellant's three daughters by DeLoatch until July, 1970, when appellant left. She returned in 1971, lived there for one year and left again, permanently. With the exception of the twenty-five dollar deposit money paid by appellant, appellee paid for all expenses associated with the property, including the downpayment, closing costs, mortgage, taxes, repairs, improvements, and maintenance costs.
Appellant claims an interest in the property pursuant to the language of grant in the deed. We agree with her claim, holding that the parties held title to the property as joint tenants with right of survivorship. We also hold that the tenancy had been severed prior to appellant's death, thus creating a tenancy in common and that the case must be remanded for a correct determination of the estate's interest in the property.
[ 369 Pa. Super. Page 258]
We must first determine the nature of the interest created in the deed dated December 9, 1969. Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948), is the first in a long line of cases dispositive of this issue. Maxwell, while legally married to someone else, took title to real property with his paramour, described in the deed as his wife. The grant was to them "as tenants by the entireties." The Pennsylvania Supreme Court acknowledged that, notwithstanding the language of the deed, the grantees could not take title as tenants by the entireties as that type of estate is limited to grantees who are legally married. The court determined, however, that the deed would be construed as creating an appropriate form of tenancy, determined by the intent of the parties as that intent appeared in the instrument. As their " declared intention was to own the property as tenants by the entireties," the court ruled that "[t]his was equivalent to stating in so many words that they desired to establish a right of survivorship." Id., 359 Pa. at 96, 58 A.2d at 356 (emphasis in original). ...