88 N.J. Eq. 101 | New York Court of Chancery | 1917
In this suit complainant has filed a bill for partition of certain real estate, the title to which was acquired by complainant and defendant, .as tenants by the entirety. Since complainant and defendant thus acquired the property their marriage relation has been dissolved b3 decree of divorce a vinculo matrimomi.
Defendant, the former wife, has answered, setting up> as a bar to the partition suit the claim that a tenancy by the entirety cannot be partitioned.
A motion has been made b3 complainant against the answer by which motion it is sought to have this court determine whether under the circumstances stated the property can be partitioned.
This precise question has been before the courts of many of our states and the conclusions reached have been almost uni
Only two authorities are to be found to the contrary of the rule' of severance as above stated. These are In re Lewis, 85 Mich. 340, and Alles v. Lyon, 216 Pa. 604. These cases hold that the fight of survivorship incident to an estate by the entirety is a vested right and cannot be divested by divorce in the absence of express statutory provisions existing at the time of the inception of the tenancy. The preponderance of authority is overwhelmingly opposed to that view.
But I do not think the question here presented can be said to be appropriately open for further consideration by this court. In Buttlar v. Buttlar, 67 N. J. Eq. 136, the bill was filed by a divorced husband for partition of land which was held by him and his wife as tenants by the entirety at the time of their divorce. The defence interposed related'to matters other than the question here involved. Touching the right to maintain a bill for partition in the circumstances here present, the learned vice-chancellor (at p. 188 of the reported case), said: “That the effect of the divorce was to destroy the estate by the entirety was admitted not only in the answer of the defendant, but in the argu
I will, accordingly, advise an order sustaining -the motion. In view of the amendment made to the motion at the hearing by consent of the parties no costs of this motion should be" taxed by either party against the other.