O'Malley v. O'Malley

Citations

• 272 Pa. 528
• 116 A. 500
• 1922 Pa. LEXIS 863

Syllabus

<p>Practice, G. P. — Affidavit of defense — Doubtful averments — Bes adjudícala.</p> <p>1. An evasive affidavit of defense is had.</p> <p>2. If an affidavit of defense leaves in doubt exactly what it means, the doubt must be resolved in favor of the plaintiff.</p> <p>3. An averment in an affidavit of defense that a pending cause of action had been determined in a prior proceeding, must be so exact and full as to remove all doubt on the subject. Hence the facts in regard to the prior ease must be fully set forth in the affidavit, or the proceedings must, by reference, be incorporated in the affidavit.</p> <p>Entireties — Estate by entireties — Husband and wife — Effect of divorce — Deed—Lease—Division of income — Equity.</p> <p>4. A title by deed retains the incidents which pertain to it at its inception. Hence a divorce of the parties does not destroy the incidents of an estate by entireties, either as relates to the final disposition of the property or to its income while both parties are alive.</p> <p>5. The incidents of an estate by entireties are that the income of the property belongs to each in its entirety and not to one exclusively, and the corpus passes to the survivor unaffected by anything which the decedent may have done.</p> <p>6. The right of either spouse to lease a property held by entireties and to collect the rent thereof, is not an incident of such an estate, but only flows from the fact that the parties hold by entireties.</p> <p>7. The acts relating to the property of married women do not alter the incidents of an estate by entireties, but since their passage a purchaser of the title of one acquires no right of possession during the life of the other, neither can sell even the expectancy of survivorship, without the joinder of the other, nor can a valid title to the income or expectancy of survivorship of one be obtained by a sheriff’s sale or under proceedings in bankruptcy.</p> <p>8. After a divorce, unless some other equity has intervened, a