Bartholomew v. Marshall

257 A.D. 1060, 13 N.Y.S.2d 568, 1939 N.Y. App. Div. LEXIS 9053

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1939
• Status: Published

Opinion

This is a submitted controversy involving the title to real property. The premises were conveyed to Ada Baker (Marshall), Nina Cummings and Frank Cummings “ without further words showing the intentions of the parties.” Ada Baker (Marshall) is the mother of Nina Cummings, who was the wife of Frank. After the death of the latter, Ada and Nina conveyed a portion of the premises to plaintiffs. Frank Cummings was survived by his wife and two brothers. Plaintiffs contracted to convey the premises to defendants, who refused to carry out their contract and accept a deed, asserting that the brothers of'Frank, as his heirs at law, owned an interest in the premises. When real property is conveyed to a husband and wife and a third person, the husband and wife have one moiety as tenants by the entirety, and the third person is a tenant in common with them of the other. Upon the death of Frank, Nina, his widow, became the owner of an undivided one-half of the premises. She and Ada are able to convey a marketable title to plaintiffs. (Barber v. Harris, 15 Wend. 615; Price v. Pestka, 54 App. Div. 59; 30 C. J. 564; Pray v. Stebbins, 141 Mass. 219; 4 N. E. 824.) Judgment rendered for defendants, with costs. Hill, P. J., Bliss and Heffernan, JJ., concur; Crapser, J., concurs on the authority of Armondi v. Dunham (221 App. Div. 679; affd., 248 N. Y. 603).