Ciconte v. Barba
| Decision Date | 15 July 1932 |
| Citation | 19 Del.Ch. 6,161 A. 925 |
| Court | Court of Chancery of Delaware |
| Parties | FILOMENA CICONTE, Administratrix of the Estate of Frank Ciconte, deceased, and FILOMENA CICONTE, v. FRANCESCO BARBA AND MARIA TERESA BARBA, his wife |
PETITION TO DETERMINE DISTRIBUTION of proceeds obtained on foreclosure in this court of a mortgage upon land held by the defendants.
The land was formerly held by Frank Ciconte and Filomena, his wife, as tenants by the entirety. They paid as consideration therefor twenty-six hundred dollars, each contributing from his or her own funds one-half of said consideration.
They sold the land to the defendants and took in part payment therefor a purchase money mortgage for three thousand dollars in their joint names as husband and wife.
Frank Ciconte died October 5, 1930, the mortgage remaining unpaid. Letters of administration were taken out on his estate by his widow, Filomena Ciconte.
A bill to foreclose the mortgage was filed by Filomena in both her individual and representative capacity. A sale was had and the present question is as to whether the entire proceeds are payable to Filomena Ciconte in her own right as survivor of her husband, or whether one-half is payable to her in her own right and the other half to her as administratrix of her husband.
Heard on petition, answer and stipulation filed by the parties in interest through their solicitors.
Decree that the entire proceeds after costs be paid to Filomena Ciconte.
Herbert H. Ward, Jr., of the firm of Ward & Gray, for Filomena Ciconte.
A James Gallo and Francis A. Reardon, for administratrix of Frank Ciconte.
In Kunz v. Kurtz, 8 Del.Ch. 404, 68 A. 450, it was distinctly held by Chancellor Nicholson that the Married Women's Act of this State (now Revised Code 1915, § 3047 et seq., as amended), notwithstanding it liberated in a general way a married woman's property from the consequences of the oneness which the common law attributed to the relation of husband and wife, nevertheless left undisturbed the common law concept of an estate by the entirety with its incident of the right of survivorship. In Godman v. Greer, et al., 12 Del.Ch. 397, 105 A. 380, the Orphans' Court held that if a devise of land were made to a husband and wife in fee expressly "as tenants in common," an estate by the entirety with its incident of survivorship was not thereby created. The Orphans' Court stated that its decision was in principle at variance with that of the Chancellor in Kunz v. Kurtz, supra. It however refused to be bound by that case.
The result of these two cases is that if language appears which shows an express intent that the husband and wife shall hold not by the entirety but as tenants in common, such intent will control, notwithstanding the ancient rule, recognized by the Orphans' Court, that whether an estate by the entirety be created is not a matter of intention but one solely of legal fiction arising out of the marital status; but that if such an intent is not disclosed, the old rule of the common law will prevail.
In the instant case, we are not concerned with an estate in land. If we were, I should follow without further discussion the prior decision in this court, for the title of the husband and wife in the mortgage is so expressed, if it were a deed of conveyance, as to bring the case on all fours with Kunz v. Kurtz, supra.
Here however, we are dealing with personal property, for while a mortgage is in point of form a conveyance of title, yet at both law and equity it is now nothing more than a lien. Malsberger v. Parsons, 11 Del.Ch. 249, 100 A. 786; Fox v. Wharton, 5 Del.Ch. 200; Walker's Adm'r. v. Farmers' Bank, 6 Del.Ch. 81, 10 A. 94; Cornog v. Cornog, 3 Del.Ch. 407; Cooch v. Gerry, 3 Del. 280, 3 Harr. 280.
The question then is whether words which create an estate in a husband and wife by the entirety if used in respect to real estate, would create a similar interest in them if the subject matter be personalty, so that when one dies the survivor will become entitled to the whole in right of his or her survivorship. On this question the authorities are in hopeless conflict. If at the common law a husband and wife took title by the entirety to personal property which was transferred to them in their joint names, without words indicating that the holding was to be in common, then the principle of Kunz v. Kurtz, supra, would require that, notwithstanding the enactment of the Married Women's Act, the incidence of survivorship would adhere to the joint ownership and the survivor would take the whole to the exclusion of the representative of the deceased spouse.
There are cases which announce in unequivocal terms that estates by the entirety in the field of real property had their counterpart at common law in personal property. On the other hand other cases announce with equal positiveness that such a thing as an estate or interest by the entirety in personalty was unknown to the common law.
The following cases may be cited among others as exemplifying those which recognize an estate or interest by the entirety in personal property and hold that a mortgage, bond, note or bank account in the name of a husband and wife simpliciter goes as a consequence to the surviving spouse as the sole owner: In re Bramberry's Estate, 156 Pa. 628, 27 A. 405, 22 L. R. A. 594, 36 Am. St. Rep. 64; Woodard v. Woodard, 216 Mass. 1, 102 N.E. 921; Boland v. McKeown, 189 Mass. 563, 76 N.E. 206, 109 Am. St. Rep. 663; Allen v. Tait, 58 Miss. 585; Craig, Public Adm'r., v. Bradley, 153 Mo.App. 586, 134 S.W. 1081; Brewer v. Bowersox, 92 Md. 567, 48 A. 1060; George v. Dutton's Estate, 94 Vt. 76, 108 A. 515, 8 A. L. R. 1014; Union & Mercantile Trust Co. v. Hudson, et al., 147 Ark. 7, 227 S.W. 1; Citizens' Savings Bank, etc., v. Jenkins, et al., 91 Vt. 13, 99 A. 250; In re Klenke's Estate, 210 Pa. 572, 60 A. 166; In re Sloan's Estate, 254 Pa. 346, 98 A. 966. Cases taking a different view are exemplified by the following, cited by the solicitor for the administratrix of the deceased husband: Stout v. Van Zante, 109 Ore. 430, 219 P. 804, 220 P. 414; McInnis v. Atlantic Investment Corp., 137 Ore. 648, 3 P.2d 118, 4 P. (2d) 314; Koehring v. Bowman, 194 Ind. 433, 142 N.E. 117; Turlington v. Lucas, 186 N.C. 283, 119 S.E. 366; In re Berry, (D. C. Mich.) 247 F. 700; Blumenthal v. Grossman, 236 N.Y. 448, 141 N.E. 911, 30 A. L. R. 901; Matter of Albrecht, 136 N.Y. 91, 32 N.E. 632, 18 L. R. A. 329, 32 Am. St. Rep. 700; Aubry v. Schneider, 69 N.J.Eq. 629, 60 A. 929.
In England it was held by Lord Langdale, Master of the Rolls that in a...
To continue reading
Request your trial
-
Panushka v. Panushka
...price, their purpose is not quite so clear. In re Bramberry's Estate, 1893, 156 Pa. 628, 27 A. 405, 22 L.R.A. 594. See: Ciconte v. Barba, 1932, 19 Del.Ch. 6, 161 A. 925. It can be reasoned that since the estate sold was held under a survivorship arrangement the unpaid balance was intended t......
-
In re Giant Portland Cement Co.
...by the entirety of the stock standing in their joint names, though they were not described in the certificate as husband and wife. Ciconte v. Barba, supra; Brewer Bowersox, supra; In re Bramberry's Est., 156 Pa. 628, 27 A. 405, 22 L.R.A. 594, 36 Am. St. Rep. 64; 1 Bouv. Law Dict., Rawles 3r......
-
Wambeke v. Hopkin
...transferred to them in their joint names has been held a question on which the authorities are in hopeless conflict. Ciconte v. Barba, 19 Del.Ch. 6, 161 A. 925, 926; 41 C.J.S. Husband and Wife § 35, p. 479. We are impressed with the long list of cases cited by counsel on both sides of this ......
-
Widder v. Leeds
...the fact that either may withdraw funds therefrom. Hoyle v. Hoyle, Del.Ch., 31 Del.Ch. 64, 66 A.2d 130 (1949). In Ciconte v. Barba, Del.Ch., 19 Del.Ch. 6, 161 A. 925 (1932) it was stated that 'the weight of authority deduces a holding by the entireties so to speak from the bare circumstance......