Maxwell v. Saylor
| Decision Date | 20 April 1948 |
| Docket Number | 2345 |
| Citation | 58 A.2d 355,359 Pa. 94 |
| Parties | Maxwell et al. v. Saylor, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 8, 1948
Appeal, No. 58, Jan. T., 1948, from order of C.P., Montgomery Co., Sept. T., 1946, in Equity, No. 13, in case of Jessie A M. Maxwell et al. v. Emma Saylor, also known as Emma Maxwell. Decree reversed.
Same case below: 59 D. & C. 304.
Bill in equity for partition of real estate. Before DANNEHOWER, J.
Adjudication filed awarding partition; exceptions to adjudication dismissed and final decree entered. Defendant appealed.
Decree reversed and bill dismissed; costs to be paid by plaintiffs.
Alfred L. Taxis, Jr ., with him J. B. Hillegass and Hillegass & Moran , for appellant.
E Arnold Forrest , with him Wright, Mauck, Hawes & Forrest , for appellees.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Raymond Maxwell and Jessie A. M. Maxwell were married in 1914; a daughter, Bernice H. Maxwell, was born to them in 1917. They lived together in Conshohocken until 1930 when Maxwell left his wife and went to live with Emma Saylor in Norristown, where she conducted a large boarding house. His intimacy with here was such that they came to be known in the neighborhood as husband and wife. In 1942 Emma Saylor, being desirous of reducing the size of her establishment, bought for that purpose a property at 818 Green Street; Maxwell moved with her and remained there until his death in 1945. When the Green Street property was purchased title was taken in the name of Raymond Maxwell and Emma Maxwell, "his wife", and the grant was to them, "their heirs and assigns, as tenants by the entireties". The purchase price was $3250 of which Emma Saylor paid $200 in cash; she and Maxwell gave a note for $800 and signed a bond and mortgage for the remaining $2250, and subsequently Emma Saylor paid the $800 in monthly installments; she has also paid all the interest on the mortgage to date. Maxwell made no contribution whatever to the purchase price. When he died his wife and daughter brought the present bill in equity for partition, on the theory that, as his heirs, they were the owners of an undivided one-half interest in the property.
We are of opinion that plaintiffs' claim is not well founded and that the court below was in error in holding to the contrary. It is true, of course, that Maxwell and Emma Saylor, even though she was designated in the deed as Mrs. Maxwell, could not take title as tenants by the entireties, since that type of seisin is limited to grantees who are legally husband and wife. But it was held in Thornton v. Picrce , 328 Pa. 11, 194 A. 897, that although a deed under such circumstances is ineffective to create a tenancy by the entireties it is not wholly invalid, there being no reason why the grantees, like any other two persons, cannot take title in some form of dual ownership "appropriate under the circumstances".
The question here is: What is such appropriate form of tenancy? This depends entirely upon the intention of the parties, which is the ultimate guide by which all deeds must be interpreted: Hindman v. Farren , 353 Pa. 33, 44 A.2d 241. Their declared intention was to own the property as tenants by the entireties, which is an estate "per tout et non per my". This was equivalent to stating in so many words that they desired to establish a right of survivorship: Michael v. Lucas , 152 Md. 512, 137 A. 287; Mitchell v. Frederick , 166 Md. 42, 170 A. 733. Therefore joint tenancy with the right of survivorship, -- an estate "per my et per tout" -- best effectuates their intention to the extent legally permissible, that being the form of tenancy for unmarried persons most nearly resembling the tenancy by the entireties enjoyed by husband and wife, since in both instances the survivor takes the whole.
It is contended by plaintiffs that the phrase in the deed "their heirs and assigns" is in conflict with, and serves to negative, any presumed intention to create a right of survivorship; this argument fails, however, in view of the fact that "their heirs and assigns" are not words of purchase but of limitation, such being their time-honored use for the purpose of conveying a fee simple title. Nor are we unmindful of the fact that the right of survivorship as an attribute, or necessary incident, of joint tenancy was abolished by the Act of March 31, 1812, P.L. 259, 5 Sm. L. 395. But that statute does not prevent the creation of the right of survivorship by the express words of a will or deed or by necessary implication, and no particular form of words is required to manifest such an intention. [*]
In the present case it is especially just and proper that defendant should be conceded the right of survivorship since every dollar of the money invested in the property was hers and not Maxwell's; it is inconceivable that the parties could have intended, under such circumstances, that upon Maxwell's death she should be deprived of any part of the title to a property which was acquired solely by the fruits of her own labor.
Decree reversed and bill dismissed; costs to be paid by plaintiffs.
I dissent from the majority opinion. This decision is contrary to reason and is unsupported by legal authority. A married man and a woman (not his wife) acquired title, as husband and wife, as "tenants by the entireties". Such seisin was not effective because the parties were not in fact husband and wife. I do not agree that under the guise of construing the deed this Court may decree a supposed intention contrary to that Expressed . Such interpretation rests upon the supposed theory that because tenancy by the entireties has an attribute of survivorship, the parties must have intended to create a joint tenancy with survivorship. To support such an implied intent, additional words must appear in the deed which expressly or by necessary implication disclose such intent. I disclaim a legal doctrine which strikes down as inoperative an express seisin but uses the same invalid words to set up an implied seisin of a different quality.
The statement of the parties concerning their relationship was false. The expressed tenancy -- tenancy by the entireties -- was based upon this false statement. I would disregard the falsity and construe the deed as though such false statement and consequent inoperative seisin had been omitted. With such omission, the words of the deed constitute the parties tenants in common or at least joint tenants without survivorship. This was decreed by the court below, and which I would affirm.
In construing the words of any written document -- whether it be a deed, will, contract or any other writing -- the intent of the parties is the guide to interpretation. Hindman v. Farren et al ., 353 Pa. 33, 44 A.2d 241, cited in the majority opinion, is an accurate statement of that principle. I do not agree, however, that the court may, by mental processes somewhat analogous to the cy pres doctrine construe such ineffective seisin to be a joint tenancy with survivorship . My answer to such a fallacious procedure is well expressed in Perrin v. Harrington et al ., 130 N.Y.S. 944, 946 (): " "
The quality of seisin in a joint tenancy with survivorship is quite dissimilar to that of an estate by the entireties . In such joint tenancy, each tenant is regarded as the tenant of the whole only for the purpose of tenure and survivorship . For the purposes of alienation and forfeiture , each has an undivided share. Thus joint tenants may hold as co-owners and the whole may pass to the survivor. But either joint tenant may sever the tenancy by alienation of his share or his creditors may attach and sell it, in which event the title is thereafter held as tenancy in common: Madden et al. v. Gosztonyi Savings and Trust Company , 331 Pa. 476, 200 A. 624 (KEPHART, C.J.); American Oil Company v. Falconer et al ., 136 Pa.Super. 598, 8 A.2d 418, (PARKER, J., later Justice of this Court); 2 Blackstone Commentaries, 183, 185; Tiffany Real Property, third ed., vol. 2, sections 418, 425, 430 and supplements; Challis's Real Property, third ed., p. 367; 48 C.J.S. p. 927. In contradistinction to such joint tenancy, a tenancy by the entireties exists only between a husband and wife; both are seized of the entirety; neither may alienate without joinder of the other; nor may the interest of either be attached or sold during the life of the other; Stuckey v. Keefe's Executors , 26 Pa. 397; Beihl v. Martin , 236 Pa. 519, 84 A. 953; Gasner v. Pierce et al ., 286 Pa. 529, 532, 134 A. 494; Berhalter v. Berhalter , 315 Pa. 225, 227, 173 A. 172; Porobenski v. American Alliance Insurance Company of New York , 317 Pa. 410, 411, 176 A. 205; Thees et ux. v. Prudential Insurance Company of America , 325 Pa. 465, 467, 190 A. 895; Gallagher Estate , 352 Pa. 476, 43 A.2d 132; Wakefield v. Wakefield , 149 Pa.Super. 9, 25 A.2d 841. See also: 166 A.L.R. (1947) 969, 992.
It is but a matter of conjecture what the parties would have intended had they known that they could not take as tenants by the entireties. Again quoting from Perrin v Harrington , supra, p. 946: ...
To continue reading
Request your trial