Ratony Estate

Concurring Opinion by

Mr. Justice Barbieri:

I concur in the conclusion reached in the Opinion of the Court and disagree with the dissenters for two reasons. First, I believe that the separation agreement in this case encompassed all property rights between the two spouses and not just the matter of support. *466 Secondly, I believe that there was legally sufficient consideration as to the widow. Under the agreement, she received one-half of the net proceeds of the sale of their house, which they had owned as tenants by the entireties. Thus, she did not receive that to which she was already legally entitled, as did the widow in Levine Estate, 383 Pa. 354 , 118 A. 2d 741 (1955), where, prior to the separation agreement, the property was owned as a tenancy in common. My research has uncovered no case indicating that a tenant by the entireties has the right or the power, except in very limited circumstances, to partition prior to divorce. * The separation agreement in this case thus gave the widow the present right to an interest she could not have otherwise obtained except by being divorced from or predeceased by her husband.

There is no argument that the proceeds of the sale of the house were not also owned by the entireties. See, e.g., 41 C.J.S. Husband and Wife §§481, 485. Our Court has not allowed partition of an entireties estate except when “one spouse has been appropriating the property to his or her own use so that there has been a wrongful exclusion,” Linett v. Linett, 437 Pa. 138, 142 , 262 A. 2d 849 (1970); see also Lindenfelser v. Lindenfelser, 396 Pa. 530 , 153 A. 2d 901 (1959); when one of the spouses is incompetent, Inte rboro Bank & Trust Co. Appeal, 359 Pa. 315 , 59 A. 2d 101 (1948); or when the court finds an explicit or implied agreement between the spouses to partition, Berhalter v. Berhalter, 315 Pa. 225 , 173 Atl. 172 (1934). There is no indication that any of these conditions was present prior to the postnuptial agreement in this case.