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 her 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". *Page 96 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. Pierce, 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. Theirdeclared 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 *Page 97 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. *Page 98
* Arnold v. Jack's Executors, 24 Pa. 57; Jones v. Cable, 114 Pa. 586,7 A. 791; Redemptorist Fathers v. Lawler, 205 Pa. 24,54 A. 487; McCallum's Estate, 211 Pa. 205, 60 A. 903; Leach'sEstate, 282 Pa. 545, 128 A. 497; Mardis v. Steen, 293 Pa. 13,141 A. 629; Haggerty's Estate, 311 Pa. 503, 166 A. 580; Lowry'sEstate, 314 Pa. 518, 171 A. 878; Wright Estate, 348 Pa. 76,34 A.2d 57; Montgomery, Administratrix, v. Keystone Savings LoanAssociation, 150 Pa. Super. 577, 29 A.2d 203.