In Kunz v. Kurtz, 8 Del. Ch. 404,
In the instаnt 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 аre 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,
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 survivorshiр. 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 propеrty 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 spоuse.
There are cases which announce in unequivocal terms
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 Branberry’s Estate, 156 Pa. 628,
In England it was held by Lord Langdale, Master of the Rolls, that in a bequest to a man and his wife and their children of whom there were two, each child took a third and the husband and wife together took a third. Gordon v. Whieldon, 11 Beav. 170, 50 Eng. Rep. 782. The principle
In this country the authorities as before stated are in conflict. The weight of them is decidedly in favor of the view that the interest of a husband and wife in a joint chose in action of the type found in the case sub judice is an interest, by whаtever name it may be called, similar to that of an estate by the entirety in land; and that the modern Married Women’s Acts have been as ineffective to destroy the one as they have the other. See 13 R. C. L. 1105, § 128.
In a note to 8 A. L. R. 1018, it is stated, and accurately I believe, that “the decided weight of authority is to the effect that estates by thе entirety may exist in personalty as well as in realty.” The annotator has collected and cited numerous cases in support of his text.
To apply the term “estate by the entirety” to personal property is perhaps an offense against the principle of precision in legal terminology, because that term is rather intimately associated with real property. But whether the term is a technically appropriate one as applied to personal property or not, the weight of authority holds that the same sort of estate or interest which is everywhеre recognized in the law of real property as an estate by the entirety, is recognized also as existing in the law of personal proрerty, and that the chara.cteristics incident to such an interest, including of course that of the right of survivor-ship, are equally present in the one as in thе other.
No case is to be found which holds that the law forbids a holding by husband and wife of personal property in such a way as to admit of the right of the survivоr to take the whole. The line of cleavage between the cases is upon the question of how such a holding is to be evidenced. As beforе stated the weight of authority deduces a holding by the entireties so to speak from the bare circumstance that the title to a mortgage, bond, nоte or bank account is
In the instant case we are concerned only with a purchase money mortgage taken by Ciсonte and wife to secure . the proceeds from the sale of land which they had held as tenants by the entirety, and I am of the opinion that in such a case the survivor takes the whole.
I am not disposed to enter upon a review and discussion of the numerous cases that deal with this question. The time is not mine to do so. If it were, it would be interesting to note the confusion which exists among the courts which take a view contrary to what I have before stated to be the weight of authority—confusion I mean upon various questions which arise as necessary corollaries to be established when оnce the idea of entireties is abandoned..
Decree that the entire proceeds after costs be paid to Filomena Ciconte.