Opinion by
Mr. Justice Williams,
It appears from the petition and answer that David Young was in 1879 the owner of .certain real estate in Philadelphia. He sold it in that 3'ear to C. E. Johnson for twelve thousand dollars payable one half in cash and one half in mortgage secured on the premises. Elizabeth Young, the wife of David, refused to join her husband in executing a deed to the purchaser unless she was paid three thousand dollars out of the purchase money. Her husband finally agreed to this, the deed was executed and delivered to the purchaser, and the money and the mortgage turned over to Young. But some four thou[649]*649sand dollars of the money seems to have been required to pay liens upon the land sold and it became necessary to pay Mrs. Young out of the mortgage. In order to do this Young assigned the mortgage to H. K. Fox, his attorney, who immediately reassigned it to David Young and Elizabeth Young his wife, “to have and to hold to the said David Young and Elizabeth Young his wife, their heirs, assigns forever, in equal moieties ór one half parts as tenants in commonthat is to say, one full equal moiety or one half part unto the said David Young, his heirs, executors and assigns, and the other full, equal moiety or one half part to Elizabeth Young, her heirs, executors and assigns.” Our first question is over the effect of this assignment by Fox to David Young and Elizabeth Young. The orphans’ court held that it vested the title to the mortgage in the husband and wife as tenants by the entireties so that upon the death of either, the survivor became the owner in severalty of the entire mortgage. The general rule that a conveyance to husband and wife as such whether they are described in the deed as tenants in common or as joint tenants, vests in them an estate as tenants by entireties is well settled. The reason of the rule is clearly stated by Blackstone in the second volume of his Commentaries on page 182 thus, “ If an estate in fee be given to a man and his wife they are neither properly joint tenants nor tenants in common; for husband and wife being considered as one person in law, they cannot take the estate by moieties but both are seized of the entirety, per tout et per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent, of the other, but the whole must remain to the survivor.” This is the rule in this state. In Johnson v. Hart, 6 W. & S. 319, the conveyance was in express words to the husband and wife as tenants in common, but we held, in accordance ¡with the rule just stated, that they were tenants by entireties. Being one person in law a conveyance to them as husband and wife was necessarily a conveyance to the survivor. But it by no means follows that a grantor cannot convey to them as individuals. Nobody ever doubted that Ahe husband was competent to take in severalty ; and under recent legislation the competency of the wife to take and hold real estate as her own is just as clear as that of the husband. As to this subject the legal unity of husband and [650]*650wife has been so far impaired as to enable the wife to use and enjoy her separate estate free from any right of possession or control by her husband. The cases cited by the appellant do not reach the real point of contention. The whole line of cases from Lodge v. Hamilton, 2 S. & R. 491, down to Bramberry’s Appeal, 156 Pa. 628, is fairly within the rule as laid down by Blaekstone. Perhaps the most frequently cited case is that of Stuckey v. Keefe’s executors, and we fully approve, and are ready in any proper case to follow the doctrine there stated. It was restated in Bramberry’s Appeal, supra, by our brother McCollum very clearly. He said in substance that words which in a conveyance to unmarried persons would create a joint tenancy or a tenancy in common, would create where the grantees were husband and wife, and they were so named in the conveyance, a tenancy by the entireties. The converse of this proposition is equally true, viz., that where the deed would create neither a tenancy in common nor a joint tenancy in unmarried persons it will not create a tenancy by the entire-ties though the grantees may be described as husband and wife. This is illustrated by a ease put by Preston in his treatise on Estates, vol. 1, p. 182, as follows: a lease is to be made to three persons, to A for life, to B in tail, and to C, his wife, for years. Here each takes in severalty, for a several estate is granted to each. Lewis, C. J., in commenting on the ease put by Preston, said in Stuckey v. Keefe, supra, “We do not see how it could be otherwise. The wife under her lease for years acquired no interest in her husband’s estate in tail and could have no claim to hold it as survivor in case of the death of the husband; and the husband by virtue of a conveyance to him in tail acquired no interest in his wife’s term. The interest which each would acquire in the estate of the other would not be through the grant to the party acquiring it but would be such as the law of marriage carves out of the estate granted to his or her companion.” In other words, the nature of the thing granted, and the words of the grant, are to be taken into consideration as well as the existence of the marriage relation between the grantees. With this distinction in mind let us now turn to the assignment from Fox to David and Elizabeth Young, and see what, and in what manner, it grants to each. It transfers the whole mortgage debt to the grantees, and in a [651]*651sort of habendum clause undertakes to describe the interest which each shall take. It says they shall hold in equal moieties or one half parts as tenants in common. This shows an intent that they shall not take bjr entireties but as tenants in common. But the assignor seems at this point to have recalled the fact that he was transferring, not real, but personal property,—the evidence of a debt, and he immediately adds by way of explanation “ that is to saj1-, one full equal moiety or half part to the said David Young, his heirs, executors and assigns, and the remaining one full equal moiety or half part thereof to the said Elizabeth Young, her heirs, executors, administrators and assigns.” This was a grant to each in severalty. If David Young should die this assignment in express words carried his half to his heirs, personal representatives or assigns and not to his wife as survivor. If Elizabeth Young had died before her husband her one half of this mortgage was her separate estate, to be disposed of by her will or to go into the hands of her personal representative for disposal under the intestate laws. Without explanation by the grantor the words first used to describe the respective interests of his grantees would have given them a joint interest, to which a right of survivorship would have attached by operation of the rule relied on by the court below. But the grantor did not leave his intention to stand upon words about whose effect he evidently felt uncertain, but proceeded to put in other words, words of whose meaning he felt sure, just what he intended and what was exactly in accordance with the understanding of all the parties.
These words give one half of the mortgage debt to each in severalty, and provide for the sale by either of his or her part without the assent of the other, and in case no sale should be made carry the share of each to his or her heirs or personal representatives. To hold otherwise would be to disregard and absolutely to subvert the intention of the assignor, and the arrangement under which the assignment was made.
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Opinion by
Mr. Justice Williams,
It appears from the petition and answer that David Young was in 1879 the owner of .certain real estate in Philadelphia. He sold it in that 3'ear to C. E. Johnson for twelve thousand dollars payable one half in cash and one half in mortgage secured on the premises. Elizabeth Young, the wife of David, refused to join her husband in executing a deed to the purchaser unless she was paid three thousand dollars out of the purchase money. Her husband finally agreed to this, the deed was executed and delivered to the purchaser, and the money and the mortgage turned over to Young. But some four thou[649]*649sand dollars of the money seems to have been required to pay liens upon the land sold and it became necessary to pay Mrs. Young out of the mortgage. In order to do this Young assigned the mortgage to H. K. Fox, his attorney, who immediately reassigned it to David Young and Elizabeth Young his wife, “to have and to hold to the said David Young and Elizabeth Young his wife, their heirs, assigns forever, in equal moieties ór one half parts as tenants in commonthat is to say, one full equal moiety or one half part unto the said David Young, his heirs, executors and assigns, and the other full, equal moiety or one half part to Elizabeth Young, her heirs, executors and assigns.” Our first question is over the effect of this assignment by Fox to David Young and Elizabeth Young. The orphans’ court held that it vested the title to the mortgage in the husband and wife as tenants by the entireties so that upon the death of either, the survivor became the owner in severalty of the entire mortgage. The general rule that a conveyance to husband and wife as such whether they are described in the deed as tenants in common or as joint tenants, vests in them an estate as tenants by entireties is well settled. The reason of the rule is clearly stated by Blackstone in the second volume of his Commentaries on page 182 thus, “ If an estate in fee be given to a man and his wife they are neither properly joint tenants nor tenants in common; for husband and wife being considered as one person in law, they cannot take the estate by moieties but both are seized of the entirety, per tout et per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent, of the other, but the whole must remain to the survivor.” This is the rule in this state. In Johnson v. Hart, 6 W. & S. 319, the conveyance was in express words to the husband and wife as tenants in common, but we held, in accordance ¡with the rule just stated, that they were tenants by entireties. Being one person in law a conveyance to them as husband and wife was necessarily a conveyance to the survivor. But it by no means follows that a grantor cannot convey to them as individuals. Nobody ever doubted that Ahe husband was competent to take in severalty ; and under recent legislation the competency of the wife to take and hold real estate as her own is just as clear as that of the husband. As to this subject the legal unity of husband and [650]*650wife has been so far impaired as to enable the wife to use and enjoy her separate estate free from any right of possession or control by her husband. The cases cited by the appellant do not reach the real point of contention. The whole line of cases from Lodge v. Hamilton, 2 S. & R. 491, down to Bramberry’s Appeal, 156 Pa. 628, is fairly within the rule as laid down by Blaekstone. Perhaps the most frequently cited case is that of Stuckey v. Keefe’s executors, and we fully approve, and are ready in any proper case to follow the doctrine there stated. It was restated in Bramberry’s Appeal, supra, by our brother McCollum very clearly. He said in substance that words which in a conveyance to unmarried persons would create a joint tenancy or a tenancy in common, would create where the grantees were husband and wife, and they were so named in the conveyance, a tenancy by the entireties. The converse of this proposition is equally true, viz., that where the deed would create neither a tenancy in common nor a joint tenancy in unmarried persons it will not create a tenancy by the entire-ties though the grantees may be described as husband and wife. This is illustrated by a ease put by Preston in his treatise on Estates, vol. 1, p. 182, as follows: a lease is to be made to three persons, to A for life, to B in tail, and to C, his wife, for years. Here each takes in severalty, for a several estate is granted to each. Lewis, C. J., in commenting on the ease put by Preston, said in Stuckey v. Keefe, supra, “We do not see how it could be otherwise. The wife under her lease for years acquired no interest in her husband’s estate in tail and could have no claim to hold it as survivor in case of the death of the husband; and the husband by virtue of a conveyance to him in tail acquired no interest in his wife’s term. The interest which each would acquire in the estate of the other would not be through the grant to the party acquiring it but would be such as the law of marriage carves out of the estate granted to his or her companion.” In other words, the nature of the thing granted, and the words of the grant, are to be taken into consideration as well as the existence of the marriage relation between the grantees. With this distinction in mind let us now turn to the assignment from Fox to David and Elizabeth Young, and see what, and in what manner, it grants to each. It transfers the whole mortgage debt to the grantees, and in a [651]*651sort of habendum clause undertakes to describe the interest which each shall take. It says they shall hold in equal moieties or one half parts as tenants in common. This shows an intent that they shall not take bjr entireties but as tenants in common. But the assignor seems at this point to have recalled the fact that he was transferring, not real, but personal property,—the evidence of a debt, and he immediately adds by way of explanation “ that is to saj1-, one full equal moiety or half part to the said David Young, his heirs, executors and assigns, and the remaining one full equal moiety or half part thereof to the said Elizabeth Young, her heirs, executors, administrators and assigns.” This was a grant to each in severalty. If David Young should die this assignment in express words carried his half to his heirs, personal representatives or assigns and not to his wife as survivor. If Elizabeth Young had died before her husband her one half of this mortgage was her separate estate, to be disposed of by her will or to go into the hands of her personal representative for disposal under the intestate laws. Without explanation by the grantor the words first used to describe the respective interests of his grantees would have given them a joint interest, to which a right of survivorship would have attached by operation of the rule relied on by the court below. But the grantor did not leave his intention to stand upon words about whose effect he evidently felt uncertain, but proceeded to put in other words, words of whose meaning he felt sure, just what he intended and what was exactly in accordance with the understanding of all the parties.
These words give one half of the mortgage debt to each in severalty, and provide for the sale by either of his or her part without the assent of the other, and in case no sale should be made carry the share of each to his or her heirs or personal representatives. To hold otherwise would be to disregard and absolutely to subvert the intention of the assignor, and the arrangement under which the assignment was made. If Fox had executed two assignments, one to the wife, her heirs and assigns for one half of the mortgage, and the other to the husband for the remaining half to hold for himself, his heirs and assigns it is not likely that this contention would ever have arisen. He really did this, but put both instruments in the same paper. Their effect is precisely the same it would have been if he had [652]*652separated them and executed and delivered each by itself. If the intent was left in doubt upon the terms of the paper instead of being, as it is, quite plain, recourse could be had to the circumstances out of which the assignment grew and the character of the entire transaction could be taken into the account in order to resolve the doubt and settle the meaning of the instrument: Taylor v. Birmingham, 29 Pa. 306; Dexter v. Billings, 110 Pa. 135. All the evidence was before the court. It appeared that the property belonged to David Young. His wife demanded as the price of her joining in the deed that she should have three thousand dollars out of the purchase money. Her husband yielded to her demand. The assignment by Young to Fox and the assignment of the same mortgage in equal half parts to Young and to his wife was the method resorted to to carry out the bargain between Young and his wife and give to her the three thousand dollars out of the purchase money to hold as her separate property free from the control and the survivorship of her husband. But we are nevertheless of the opinion that the decree must be affirmed. The laches of the petitioner were properly held to be a fatal barrier in the way of the relief sought. He is a grandson of David Young and Elizabeth Young. She survived her husband and was the executrix named in his will. She settled her account as executrix and it was duly confirmed. She survived the confirmation of her account more than eight years. During about eight years of this time the petitioner was of full age. He neither appealed from the decree of confirmation nor applied for a review of the account. He waited till her death, and till her executor is engaged in the settlement of her estate, and then asks by this petition that her executor be required to file an account showing the disposition made by his grandmother of the one half of the mortgage held by David Young under the assignment by Mr. Fox. This is in effect an attempt to open by indirection the decree of confirmation made upon the final settlement of Elizabeth Young as executrix of David Young. That decree stands unappealed from and it cannot now be disturbed in the manner attempted.
For this reason the petition was rightly dismissed and the decree of the orphans’ court is affirmed.