Redemptorist Fathers v. Lawler , 205 Pa. 24 ( 1903 )

Opinion by

Mb. Justice Mitchell,

The Act of March 31,1812, 5 Sm. L. 395, expressly abolished the right of survivorship as an incident of joint tenancy, and provided that “ whatever kind the estate or thing holden, be, the parts of those who die first .... shall be considered .... in the same manner as if such deceased joint tenants had been tenants in common.”

But it is not forbidden by this act, nor made illegal in anyway, to create by grant or devise an estate with the same attribute of survivorship as joint tenancy at common law. Thus a grant to three for their joint lives with remainders to the survivors and survivor, and to the heirs of the survivor in fee would be unquestionably good and yet it would be practically a grant to the three in joint tenancy with survivorship as at common law. This was substantially the case of Arnold v. Jack’s Exrs., 24 Pa. 57, and it was there held that though survivorship as an incident of joint tenancy has been abolished, it may still be created or conferred by express words in a deed or will. See also Kerr v. Verner, 66 Pa. 326, and Jones v. Cable, 114 Pa. 586.

Survivorship as an incident of an estate granted being still lawful, its creation becomes a question of intent. No particular form of words is required further than that they shall be sufficient to clearly express an intent in order to overcome the presumption arising from the statute.

In the present case the grant was to four, to hold “ as joint tenants and not as tenants in common.”

The only practical difference between the two estates was the right of survivorship in joint tenancy. The statute had abolished this and provided that the estate holden should be considered “ in the same manner as if ... . they had been tenants in common.” When therefore the grantor declared in his deed that his grantees should hold “as joint tenants and not as tenants in common,” he made clear his intent not to follow the statute but to convey an estate subject to the right of survivorship, the distinguishing incident of joint tenancy at common law.

Judgment affirmed.