Blease v. Anderson , 241 Pa. 198 ( 1913 )

Opinion by

Mr. Justice Moschzisker,

This áppeal involves the construction to be placed upon and the effect to be given to a conveyance to man and wife wherein it is expressly provided, “It is understood and agreed that there is hereby conveyed an undivided ten-fifteenths part to the said William Anderson and an undivided two-fifteenths part to the said Rhoda A. Anderson, so that Rhoda A. Anderson, being already the owner of an undivided three-fifteenths part......, will be the owner of an undivided five-fifteenths part”; and the question is, did the grantee take individually in the proportions designated “without the right of survivorship,” or did they take “an estate by entireties with the right of survivorship?” A full statement of the material facts will be found in the notes of the reporter and the excerpt from the opinion of the court below published in connection herewith.

In Merritt v. Whitlock, 200 Pa. 50, after referring to our cases supporting the common law rule that a conveyance to husband and wife is presumed to create an estate by entireties, and to the Married Women’s Property Acts, Mr. Justice Mitchell states, (p. 55): “It may be considered as still an open question whether they (man and wife) may not, now, since the acts referred to, take as well as hold in common, if that be the actual intent, notwithstanding the legal presumption to the contrary”; (Also see, Alles v. Lyon, 216 Pa. 604; Hetzell v. Lincoln, 216 Pa. 60.) In Young’s Est., 166 Pa. 645, where it was held that an assignment of a mortgage to a man and wife, (which in the grant transferred the whole to the assignees but in a “sort of habendum clause” provided that they should “hold in equal moieties or one-half parts as tenants in common; that is to say, one full equal moiety or half part to the said......(husband) his heirs, executors, and assigns, and the remaining one full equal moiety or half part to the said......(wife) her heirs, executors, administrators and assigns),” would give “one-half of the mortgage debt to each in severalty,” after referring to the general rule governing conveyances to husband and wife, Mr. Justice Williams states, (p. 649) : “But it by no means follows that a grantor cannot convey to them as individuals. Nobody ever doubted that the husband was competent to take in severalty, and under recent legislation the competency of the wife to take and hold real estate as her own is just as clear as that of the husband”; then referring to Bramberry’s Est., 156 Pa. 628, he states that it is there “said in substance that words which in a conveyance to unmarried persons would create a joint tenancy or a tenancy in common, would create where the grantees were husband and wife, and they were so named in the conveyance, a tenancy by the entireties”; and he proceeds to say that “the converse of this proposition is equally true, viz, where the deed would create neither a tenancy in common nor a joint tenancy in unmarried persons it will not create a tenancy by the entireties though the grantees may be described as husband and wife.” In Bedford Lodge v. Lentz, 194 Pa. 399, where in construing a conveyance to a husband and wife it was held that an estate by entireties was not created and the husband took for life only, Mr. Justice Dean (p. 401) said, “The premises of the deed, beyond question, convey to the husband and wife, the fee-simple in the land; and standing alone, it would be held that the husband and wife took the land by entireties. But ......the habendum expressly limits the estate of the husband to one for life, with remainder to the wife ......Evidently the grantor intended the estate of the husband should end with his life for he so says....... All the cases cited by the appellant are on the assumption that the estate is a common law estate by entireties; no note is taken of the effect of the habendum in qualifying the estate of the husband. This....he (the grantor) could do and did do.” Finally, in Rhodes’s Est., 232 Pa. 489, our Brother Potter (p. 493) states, “the intention may be made clear in a deed that the grantees, even though husband and wife, are to take estates in severalty.”

While we have said more than once that the Married Women’s Property Acts do not abolish or affect estates by entireties (Meyer’s Est., 232 Pa. 89; Beihl v. Martin, 236 Pa. 519) where the grant expressly or in effect creates such an estate, yet at no time since the recent legislation conferring full competency upon married women to take and hold real estate as their individual property, have we ruled that a conveyance to husband and wife granting distinctly defined, undivided parts or individual estates to each, must be construed to create an estate by entireties notwithstanding the expressed intention of the grantor to the contrary; far from so holding, all our decisions upon the subject point in the other direction. In the case at bar we concur in the conclusion reached by the learned court below that the grantees did not take by entireties but that each took an individual, undivided interest or estate in the property in question, as particularly provided in the deed.

The assignments of error are overruled and the judgment is affirmed.