
    Chillingsworth F. Perrin, Respondent, v. Irving Harrington, Appellant, Impleaded with East Side Savings Bank and Others, Defendants.
    Fourth Department,
    July 11, 1911.
    Beal property — deed — tenants by the entirety — conveyance to man and woman not legally married — tenancy in common — rights of cotenant.
    Although a conveyance is made to a man and woman in the form, ‘1 husband and wife, as tenants of the entirety,” they do not take as tenants by the entirety with a right of'survivorship,• when in fact, .although living together, there was no marriage between them, one of the parties being bound by an existing marriage. '
    
      A tenancy by the entirety can only exist where there is a valid marital relation between the grantees at the time of the conveyance.
    Although tenants in common presumptively take in equal shares, the presumption may be rebutted if the facts show that equitably they should hold in different shares.
    Hence, where the father of the woman paid two-thirds of the consideration for the conveyances and the man with whom she lived paid the other third, the father on the death of his daughter, being her sole heir, is entitled in equity to two-thirds of the value of the lands.
    Appeal by the defendant, Irving Harrington, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of March, 1911, upon the decision of the court rendered after a trial at the Monroe Special Term.
    
      David N. Salisbury [Salisbury & Agate], for the appellant.
    
      Delbert C. Hebbard [Smith & Hebbard], for the respondent.
   Robson, J.:

Plaintiff’s action is in partition, and his interest in the premises in question is put in issue by defendant’s answer. Plaintiff is the father and sole heir at law of Louise Brown, also known as Louise Harrington, who died intestate July 7, 1909. Prior to her decease she had lived with and passed as the wife of defendant Harrington for something-more'than a year, but they had never been married. She had been married some years before that to one Brown, with whom she lived only a short time. No divorce dissolving that marriage was ever had, and, so far as appears, she remained his wife up to the date of her death. On or about May 3, 1909, the premises, partition of which is sought in this action, were conveyed to the defendant and the intestate. The grantees in the deed of conveyance are named and described as follows: Irving Harrington and Louise Harrington, husband and wife, as tenants of the entirety, of Rochester in said County and State, parties of the second part.” At the time this deed was delivered $3,000 of the purchase price of $6,400 was paid in cash. The remainder of the purchase-price was made up of $2,200, the amount of a mortgage already a lien on the premises, and a bond and mortgage of the grantees securing the payment of $1,200. Harrington furnished $1,000 of the cash payment, and plaintiff $2,000 thereof for his daughter, the other grantee. The trial court has held that the grantees in this deed on its delivery became seized of the premises as tenants in common in the shares proportionate to the several amounts contributed by or for them, the defendant Harrington one-third and plaintiff’s daughter two-thirds ; and that on her death her share and interest therein descended to plaintiff as her .sole heir at law. Defendant insists that this decision is erroneous. First. Because he, on the death of intestate, as surviving grantee was entitled to the whole fee.. Second.-■ If this be untenable, . that he was as tenant in common entitled to an equal share therein.

It must be conceded that the effect of the deed, except for the description of the grantees as “husband and wife, as tenants of' the entirety,” would have been that the grantees would take as tenants in common. (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 66.) This section declares in effect that every conveyance of real property to two or more persons in their own right creates a tenancy in common unless expressly declared to be in joint tenancy. “Joint tenancy, whether in land or personalty, is not favored either in law or equity, and it will never be. inf erred where any other deduction can be fairly made. In consequence survivorship, which is an incident to joint tenancy, is seldom presumed. ” (De Puy v. Stevens, 37 App. Div. 289, 294.) But the intention to.create a tenancy other than a tenancy in common must be given effect, if such intention can be gathered- from the whole instrument, and' is consistent with the rules of law. (Real Prop. Law, § 240, subd. 3; Miner v. Brown,m 133 N. Y. 308; Coleman v. Beach, 97 id. 545.) In this deed the intention that the grantees are to take as husband and wife, as tenants ■ by the entirety, does appear. But they could not take in that tenancy, because they were not and could not under existing conditions ever legally become hus- • band and wife. Such a tenancy can exist only between a lawful husband and wife and cannot exist between two people under any other circumstances. It is a tenancy in its nature dependent upon the existence of the marital relation at the time of the transfer. (Stelz v. Shreck, 128 N. Y. 263; Jooss v. Fey, 129 id. 17.) In the latter case it is said: This estate of tenancy by the entirety has but one feature in common with that of a joint tenancy, and that is in the right of survivorship. In all other essential respects they differ. The estate which vests by virtue of a grant jointly to husband and wife is peculiarly the result or product of the marriage relation and depends for its continuance upon the unity of man and wife.”

The deed clearly and in so many words expressing the intention of the grantees to take and hold as tenants by the entirety, and it being impossible for them to take in that tenancy, it is not to be presumed that they intended to take in some other tenancy which does not give effect to the intention. Non constat, if they had been advised that they could not take as husband and wife, they would have chosen to take as tenants in common rather than as joint tenants, or by conveyance to them as tenants in common or joint tenants during their joint lives with remainder to the survivor. When we enter upon the field of conjecture the point, at which we find the parties would have ultimately landed cannot be determined. Their statement as to their relation being false, and the tenancy expressed being necessarily based upon this false' statement, or assumption of fact, the expression of that intention should be disregarded and the tenancy created by the conveyance determined as though it had been omitted therefrom. Attention is called to the case of Messing v. Messing (64 App. Div. 125), decided by this court as an authority that a tenancy by the entirety may exist between two parties, who are not husband and.- wife. It is true that there are some expressions in the opinion which, unless the facts involved in that case are borne in mind, might seem to support that view. But the court was then considering the effect of words indicating the intention to provide for a right of survivorship m the grantees, and the expressions in the opinion.as to the rights of tenants by the entirety may be considered to have been used more by way of illustration than as expressive of the actual tenancy created by the deed. The intention that there should be a right of survivorship in the grantees was clearly set forth in the deed under consideration in -that case; hut they were not at the time husband and wife, and. the deed contained no expression of intention that they should take as husband and wife, or as tenants by the entirety.

I conclude that defendant and plaintiff’s daughter took the title to the premises as tenants in common.

While it is true that tenants in common presumptively take in equal shares' (Jackson v. Moore, 94 App. Div. 504), this is •a presumption only, which may of course be rebutted if the facts show that equitably they should hold in different shares. (Walker v. Barrow, 43 La. Ann. 863.) There is ample reason in this case for holding that plaintiff is equitably entitled to a two-thirds interest in the .premises. He furnished his own money with which two-thirds of the cash consideration was paid.. True, it was furnished to make the payment as the daughter had agreed with defendant to make it. Defendant, however, must have known the circumstances, and equitably cannot complain if plaintiff receives the share in the estate for which his money actually paid.

All concurred.

Interlocutory judgment affirmed, with costs.  