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Matter of Estate of Joseph Rodio

Decided: December 18, 1978.

IN THE MATTER OF THE ESTATE OF JOSEPH RODIO, DECEASED


Kentz, J.s.c.

Kentz

The only remaining issue now before the court is a determination of the nature and extent of the ownership of certain real property located at 161 Glenwood Avenue, Jersey City, all other issues having been resolved by the parties.

The undisputed facts are as follows. Joseph Rodio, also known as Guiseppe Rodio (Joseph), died testate on January 9, 1978, leaving a will naming Teresa Rodio as his sole devisee and legatee and Anthony Luppino as executor. Julia Rodio, also known as Julia Marzello (Julia), died intestate on December 27, 1977, leaving surviving her daughter, Alberta Lintecume (Alberta), as her sole heir.

Julia and Joseph lived together as husband and wife for almost 25 years prior to their deaths. During this period they purchased together various real properties in New Jersey and Florida and also worked together in a restaurant business located in Lavallette and a floral business in Jersey City.

After a diligent search no proof of a ceremonial marriage could be located and it is stipulated that Joseph and Julia were never formally married to each other.

The property in question was conveyed by deed dated April 8, 1975 to "Joseph Rodio and Julia Rodio, his wife, with right of survivorship."

Teresa Rodio, also know as Teresa Rodio Centomani, contends that upon the death of Julia the title to this property passed to Joseph as survivor by virtue of the express provision in the deed and that she, as the sole devisee under the will of Joseph, is the owner of this property. On the other hand, Alberta maintains that the deed in question was insufficient to create a joint tenancy and that the title to the subject property was taken by Joseph and Julia as tenants in common. Consequently, upon the death of Julia, title to her interest therein passed to Alberta as her sole surviving heir.

It is well established that a deed conveying real property to a legally married husband and wife will create a tenancy by the entirety unless the deed contains qualifying words by which a different tenancy is established. Mosser v. Dolsey , 132 N.J. Eq. 121, 124-125 (Ch. 1942). Similarly, where a deed purports to convey title to two persons who are not legally married to each other, a tenancy in common is created unless the deed contains language which would negate such a tenancy and establish a joint tenancy. Balazinski v. Lebid , 65 N.J. Super. 483, 488 (App. Div. 1961); Crawley v. Shelby , 37 A.D. 2d 673, 674, 323 N.Y.S. 2d 222, 223 (App. Div. 1971). Moreover, it has been held that where a man and woman could not acquire title to property as tenants by the entirety since they were not legally married at the time of conveyance, a deed conveying property to them which purported to create by express language a tenancy by the entirety created instead a joint tenancy and not a tenancy in common since it was sufficiently established that a right of survivorship was intended thereby. Coleman v. Jackson , 109 U.S. App. D.C. 242, 286 F.2d 98 (D.C.

Cir. 1960). See Kepner, "The Effect of An Attempted Creation of an Estate By the Entirety in Unmarried Grantees," 6 Rutg. L. Rev. 550, 556-557 (1952).

However, Alberta argues that since Julia and Joseph were never married to each other, a tenancy by the entirety could not have been created and that the language in the deed, "with the right of survivorship," was used only to describe the effect of the tenancy by the entirety and not to establish a joint tenancy. Therefore, it is further argued that since the tenancy by the entirety must fail, the explanatory survivorship language is necessarily without effect and that as a result the parties became owners of the property as tenants in common. Under the facts of this case, I find no merit to this argument. In Young v. Young , 37 Md. App. 211, 217, 376 A.2d 1151, 1156 (Ct. Spec. App. 1977), the facts were strikingly similar to the case now before me and the court there stated:

The principal characteristic of a joint tenancy is the right of survivorship and the specific expression in a deed of such a right is "a clear indication of an intention to create a joint tenancy." Gardner, supra , 25 Md. App. 638 at 642, 335 A.2d 157 at 160; Mitchell v. Frederick , 166 Md. 42, 47, 170 A. 733, 736 (Ct. App. ...


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