Appeal from the Order Entered March 18, 1987 in the Court of Common Pleas of Cumberland County, Orphans Division, No. 21083-648.
James G. Nealon, III, Harrisburg, for appellant.
Jan M. Wiley, Dillsburg, for appellee.
Wieand, Tamilia and Cercone, JJ.
[ 372 Pa. Super. Page 17]
This is an appeal from the order of the Orphans Court of Cumberland County which, pursuant to the Probate Estates and Fiduciaries Code, 20 Pa.C.S.A. § 2211(a), denied appellant, Betty Bruce, wife of the decedent, her election against two tracts of land owned by the decedent and his paramour.
The facts as stipulated to by the parties discern that Betty and David Bruce were husband and wife who separated in 1972 but never divorced. In 1977 David Bruce entered into a marriage ceremony with Ruth Bruce who had no knowledge at that time that David was already married. During the course of their relationship David and Ruth purchased two tracts of land in Cumberland County, the deeds to which describe the grantees as "David A. Bruce and Ruth E. Bruce, his wife". In 1983, David Bruce died testate leaving his entire estate to Ruth. Upon David's death, Betty Bruce, the lawful widow, filed a petition to elect to take against David's will and a petition to determine her elective share of his estate. The primary issue is the
[ 372 Pa. Super. Page 18]
right of David's lawful wife Betty in the two tracts of land in Cumberland County purportedly held as entireties property by David and Ruth Bruce. The lower court determined that since the two tracts of land purchased by David and Ruth Bruce during the term of their relationship could not be entireties property they were joint tenancies with right of survivorship and therefore passed to Ruth Bruce. Betty Bruce filed exceptions to the court's findings which were denied. This timely appeal followed.
We are to determine whether or not the lower court erred in construing the deeds to the two tracts of land in the name of "David A. and Ruth E. Bruce, his wife" as creating joint tenancies with right of survivorship rather than tenancies in common.
In this context we refer to the legal principle which holds that one can be married to only one person at a given time and any attempted remarriage to another while the marriage is valid is void. See Watt Estate, 409 Pa. 44, 185 A.2d 781 (1962). Accordingly, in conveyances of land, a tenancy by entirety can only be created when a valid marriage exists between two parties since the basis of this conveyance is the common law concept of the unity of husband and wife. Consequently, two grantees or devisees not husband and wife, regardless of whether they are so designated in the deed, cannot take as tenants by the entireties. See Ladner on Conveyancing in Pennsylvania, § 1.08 (Clark et al. 4th ed. 1979).
It is also well established that an estate in two or more grantees, not husband and wife, creates a joint tenancy. At common law such a tenancy was favored and the doctrine of survivorship was a recognized incident to this estate.
Under the Act of 1812, Act of March 31, 1812, P.L. 259 (1972), the incident of survivorship in joint tenancies was removed unless the instrument creating the estate expressly provided that it should apply. The Act of 1812 does not forbid creation of a joint tenancy with right of ...