## Facts

- A January 16, 1967 deed conveyed real property to “John Ewald and Mary B. Ewald his wife and Joseph Ewald … as tenants in common with right of survivorship.”
- The grantee clause identified Mary as John’s wife and included a third grantee, Joseph Ewald.
- Mary B. Ewald died intestate on November 8, 1973; her heirs were her son, Mario Margarite, and her husband, John Ewald.
- John Ewald died on August 20, 1974 and left his estate to his brother, George Ewald.
- Mario sought a declaratory judgment that Mary held an interest that passed through intestacy to him.
- On stipulated facts, the trial court held the deed created a three-party tenancy in common (one-third each), awarding Mario a one-sixth interest through Mary’s intestate estate.
- Joseph and George Ewald appealed.

## Issues

1. Whether a deed to “husband and wife and a third person” using the phrase “tenants in common with right of survivorship” created a three-way tenancy in common or, instead, a tenancy by the entireties between the spouses as to a one-half interest.
2. Whether Mary’s interest, if held by the entireties, passed to her husband by survivorship rather than through intestacy to her son.
3. Whether construing the deed to create a tenancy by the entireties violated the Pennsylvania Equal Rights Amendment.

## Decision

- The Superior Court reversed.
- The court held the deed created a tenancy by the entireties between John and Mary as to a one-half interest, with the remaining one-half interest held by Joseph.
- Because Mary’s interest was held by the entireties, it passed to John by survivorship at her death and did not enter her intestate estate.
- The court rejected the argument that recognizing an entireties estate in these circumstances violated the Equal Rights Amendment.

## Legal Principles

- The phrase “tenants in common with right of survivorship” is internally contradictory because survivorship is not a feature of a tenancy in common.
- A conveyance to a married couple presumptively creates a tenancy by the entireties unless the instrument clearly expresses a contrary intent.
- When a deed names spouses and a third party, courts may construe the conveyance as creating two estates: an entireties interest for the spouses and a separate interest for the third party, to avoid giving effect to legally incompatible language.
- In a tenancy by the entireties, the surviving spouse takes the whole by operation of law; the deceased spouse’s interest does not pass by intestacy.
- Tenancy by the entireties is treated as gender-neutral for Equal Rights Amendment purposes when it confers reciprocal rights and liabilities on both spouses.

## Conclusion

The court construed the deed as granting John and Mary a one-half tenancy by the entireties and Joseph the other one-half, so Mary’s interest passed to John by survivorship and Mario inherited no share of the property through her intestate estate.


Margarite v. Ewald, 252 Pa. Super. 244, 381 A.2d 480 (Pa. Super. Ct. 1977)