Opinion by
Thе sole question on this appeal is whether the action for partition of real estate held by joint tenants with the right of survivorship abates upon the death of the complainant before judgment has been entered by the court. We conclude that the action doеs abate and the decedent’s interest accrues to the survivor.
The undisputed facts reveal that appellant’s-decedent, Cаtherine N. Sheridan was owner of the *307 premises in question and that on Januáry 16, 1952, she conveyed her fee interest to herself and her brother-in-law and nephew, as joint tenants with the right of survivorship. On March 7, 1956, a complaint in partition was filed by appellant’s-decedent, to which an answеr containing new matter was filed. Before a reply ensued, the appellant’s decedent died on January 11, 1957, leaving to survive her the two. remaining joint tenants. The administrator then' was substitutéd for the decedent and a reply to new matter was filed on January 10, 1958. However, appellee — brother-in-law died two days prior to the filing of this reply and his son (the remaining joint tenant) was substituted for him, whereupon, the court en bañó-, after argument, entered a judgment on the pleadings in favor of appellees.
Appellant argues that the commencement of the aсtion of partition works a severance of a joint tenancy into a tenancy in common, so that the subsequent death of one оf the tenants (appellant’s decedent) does not work a divestiture of his interest in- favor of the surviving tenant. Moreover, says appеllant, two Acts of Assembly expressly provide for the survival of the interest of the decedent and- permits the personal representative to proceed with the. partition action. First, there is the Act of April 7, 1807, P.L. 155, 4 Sm. L. 398, §4, 12 P.S. §11, which provides that “No plea in-abate-ment shall be admittеd or received in any suit .for partition, nor shall the same be abated, by reason of the death of any defendant.” Secondly,, the Act .of April 18, 1949, P.L. 512, §601, 20 P.S. §320.601 which provides that “All causes of action or proceedings, real or personal, except actions for slander оr libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.”
It is basic to thе relationship of a joint tenancy that the four unities of time, title, interest and possession co-exist with the right of survivorship, which right is
*308
clearly manifested by the conveyance. It is also well settled that a joint tenancy in real estate with the right of survivorship is severable by the act, voluntary or involuntary, of either of the parties,
Angier v. Worrell,
In the early case of
Frohock v. Gustine,
8 Watts (Pa.) 121 (1839), it was held that the death of the plaintiff in an action of partition, after judgment
quod partitio fiat,
doеs not abate the writ but this does not require the conclusion that the lack of a completed entry of judgment will likewise not abate the аction. The few cases dealing with the severance of a joint tenancy requires an act which effectively divests the joint tenant’s intеrest, such as an attachment execution on a joint tenancy,
American Oil Co. v. Falconer et al.,
A review of the treatises also reveals the following statement in 4 Thompson, Real Property 316, §1779: “The commencement of an action for partition by a jоint tenant, who dies while the suit is pending, is not a severance of the tenancy and the executor of the estate of the joint tenant is nоt entitled to be substituted as the party plaintiff and obtain judgment in partition.” Cited as authority for this conclusion is the case of
Ellison v. Murphy,
Although the cited case dealt with a statute unlike the ones which appellant cites for his argument, nevertheless we beliеve that the mere pendency of an action in partition, without more, is insufficient to work a severance of the joint tenancy, whеreupon an abatement occurs upon the death of one of the joint tenants. This for the reason that, although a voluntary aсt on the part of one of the joint tenants is adequate to work a severance, that act must be of sufficient manifestation that thе actor is unable to retreat from Ms position of creating a severance of the joint tenancy. We believe that the pendency of a partition proceeding, before the issues have been formulated, is such a premature act that the comрlainant has an election to continue the proceedings to judgment, thus affecting a severance of the joint estate or disсontinuing the action and leaving the joint tenancy in status quo. It therefore becomes apparent that the death of the comрlainant does not work an election but leaves the parties where they were at the time of his death, i.e., vested with a joint tenancy whеreby the remaining or surviving tenant, by operation of law, obtains the deceased tenant’s interest.
*310 Finally, the two statutes cited by appellant provide for survival of proceedings which, when the party to the action dies, survive to him by law. From what we have just concluded, the stаtutes are merely procedural and do not provide for a cause of action to survive where the right is effectively extinguished by death. Such is the case at bar. The death of the joint tenant immediately invokes a divestiture of his interest in favor' of the survivor. Therefore, the fact that the partition proceedings are pending is of no moment in view of the termination of the decedent’s joint interest by operation of law.
In conclusion, as the lower court said, these procedural statutes cannot abrogate substantive interests of the survivor since “death legally vested title to this property in the sole survivor; there was therefore no action to abate.”
Judgment affirmed.