Davis v. Davis

75 S.E.2d 46, 223 S.C. 182, 1953 S.C. LEXIS 26

• Court: Supreme Court of South Carolina
• Decided: February 3, 1953
• Docket: 16709
• Status: Published

Opinions

Oxner, Justice.

The facts are fully stated in the opinion of Mr. Chief Justice Baker. For the reasons so cogently stated by him, I am in accord with the conclusion that the estate of tenancy by the entirety no longer exists in South Carolina, but regret that I must dissent from the conclusion that the deed creates a joint tenancy.

It is elémentary that the cardinal rule of construction is to ascertain and effectuate the intention of the parties, unless that intention contravenes some well settled rule of law or public policy. As we endeavored to point out in the very'recent case of Rogers v. Rogers, 221 S. C. 360, 70 S. E. (2d) 637, 640, “There is a growing tendency among the courts to apply, not merely to affirm preliminarily” this salutary principle. Also, see Glasgow v. Glasgow. 221 S. C. 322, 70 S. E. (2d) 432. I shall approach the question before us, as was done in the Rogers case involving the construction of a will, by first undertaking to ascertain the intention of the parties “unobscured by the fault of technical learning,” and without reference to the subtle and arbitrary distinctions and niceties of the feudal common law After doing so, we can then ascertain whether there are any rules of law or public policy requiring a different conclusion.

The granting clause is to “W. N. Parks and wife, Emma V. Parks, as tenants by entirety, and the survivor of them,” and the habendum is to these parties “and the survivor of them, their heirs and assigns in fee simple forever.”

I think the deed clearly evidences an intention that Mr. and Mrs. Parks should have the property while both lived, and upon the death of either, it should pass to the survivor. The scrivener evidently thought that the appropriate way to effectuate such purpose was to create a tenancy by entireties and so characterized it in the granting clause. Although this estate no longer exists in South Carolina, can we still give effect to the obvious intention of the parties that after the death of one of the grantees, the absolute estate should go to the survivor ?

The conclusion that a joint tenancy was created is reached in this manner. It is stated that, quoting from Chancellor Kent, “the same words of conveyance which would make two other persons joint tenants, will make the husband and wife tenants of the entirety,” and that a tenancy by the entirety, quoting from Tiffany, “is essentially a joint tenancy, modified by the common law theory that husband and wife are one person.” On the basis of these principles, it is said that since the unity of husband and wife, a distinctive feature of a tenancy by the entirety, no longer exists in South Carolina, the deed under consideration which created at common law a tenancy by the entirety must now be regarded as creating a joint tenancy. The result is that one common law estate based on the fiction of unity of husband and wife is rejected and there is substituted in lieu thereof an estate in joint tenancy, which is held in equal disfavor by the courts and is based on feudal conceptions long since extinct. After this is done, Section 8911 is applied to the joint tenancy thus found and the deed is construed the same as if it had been made to Mr. and Mrs. Parks without the superadded words “and the-survivor of them.” I know of no rule of law requiring a result of this kind which is clearly contrary to -the intention of the parties. It might not be amiss to add that appellants did not advance the theory of joint tenancy but state in their brief “that W. N. Parks and wife took .estates under the deed in question as tenants-in common.”

Suppose the parties had been told that South Carolina did not recognize tenancy by entireties, how can we presume that they would have then created an estate in joint tenancy? When we enter into the field of conjecture, the point at which we find the parties would have ultimately landed cannot be determined. The only safe course to pursue is to construe the deed as giving that estate which undoubtedly is in conformity with the intention of the parties.

A joint tenancy does not have all the characteristics of a tenancy by the entirety. In Joos v. Fey, 129 N. Y. 17, 29 N. E. 136, 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 fact that the .word “survivor” is used in this deed does not conclusively call for a construction of jokk tenancy. As stated in a footnote in the Third Edition of Tiffany on Real Property, Volume 2, page 208: “A tenancy in common with benefit of survivorship is a case which may exist, without being a joint tenancy, because survivorship is not the only characteristic of a joint tenancy.” While the right of survivorship is not an incident to an estate in common, it may be annexed thereto if the parties so desire.

It has been said that great care must be exercised in construing conveyances to two or more persons and to the survivor or survivors of them. “If the intention was to create a tenancy in common for life, with cross remainders for life, with remainder in fee to the ultimate survivor, a joint tenancy would not accomplish the purpose because the right of survivorship may be defeated by a conveyance by any joint tenant but the vested cross-remainders and, in general, the contingent ultimate remainders are indestructible. Thus, not all instruments which provide that the survivor of a group will ultimately take the fee in severalty contemplate a joint tenancy; the intention may be to create a true future interest by way of a remainder or an executory limitation.” American Law of Property, Volume II, page 14.

There is nothing vicious about the right of survivor-ship. Indeed, it was recognized by our General Assembly in the enactment of the statute relating to bank deposits. Section 7851 of the 1942 Code. No rule of public policy or rule of law is violated by creating an estate in two or more persons with the right of survivorship. Section 8911 of the Code only abolished survivorship as an incident of the common law estate of joint tenancy, and was never intended to prevent the creation of the right of survivorship when expressly provided for in a will or deed. In discussing this question, the Supreme Court of Georgia in Equitable Loan & Security Co. v. Waring, 117 Ga. 599, 44 S. E. 320, 353, 62 L. R. A. 93, said:

“While the doctrine of survivorship, as applied to joint tenancies, has been distinctly abolished and does not exist in this state, there is no law of this state that we are aware of which prevents parties to a contract, or a testator in his will,, from expressly providing that an interest in property shall be dependent upon survivorship. Of course, all presumptions are against such an intention, but where the contract or will provides either in express terms or by necessary implication, that the doctrine of survivorship shall be recognized, we know of no reason why a provision in the contract or will dependent upon such doctrine may not become operative under the laws of this state. * * * In Arnold v. Jack, 24 Pa. 57, the Supreme Court of Pennsylvania held that though survivorship, as an incident to joint tenancies, had been abolished in that state, it might be expressly provided for by will or deed; Knox, J., in the opinion saying: ‘But conceding that the right of survivorship, as an incident of a joint tenancy, no matter how created, is gone, it by no means follows that this right may not be expressly given either by a devise in a will or by grant in a deed of conveyance. It may cease to exist as an incident, and yet be legally created as a principal.’ * * * In the case of Taylor v. Smith (116 N. C. 531), 21 S. E. 202, the Supreme Court of North Carolina held that the act abolishing survivorship in estates in joint tenancy did not prohibit contracts making the rights of the parties dependent on survivorship. In the opinion, Avery, J., said: ‘The act of 1784 (Code 1895, § 1326). abolishes survivorship where the joint tenancy would otherwise have been created by the law, but does not operate to prohibit persons from entering into written contracts as to land, or verbal agreements as to personalty; such as to make the future rights of the parties depend upon the fact of survivorship.’ ”

The following is taken from 26 C. J. S., Deeds, § 127, page 429:

“An estate of survivorship will be created by a deed manifesting an intention to create such an estate. Where such intention is clearly stated, it will be effective regardless of the nature of the estate otherwise conveyed. A deed of land to two persons may operate as a deed of an estate for life with, remainder in fee to the survivor. Thus, a deed to a number of grantees and the survivor of them has been held to convey a life estate with remainder in fee to the survivor.”

In Mittel v. Karl, 133 Ill. 65, 24 N. E. 553, 8 L. R. A. 655, it was held that a deed to Maria Jobst and Michael Jobst, her husband, and “the survivor of them, in his or her own right,” gave each grantee an estate for life, with remainder in fee to the survivor. The Court said that at common law this deed would' have created a tenancy by the entirety but the Married Women’s Act of that State had the effect of abolishing such an estate, and that the deed without the words, “and ‘the survivor of them, in his or her own right,’ ” would have conveyed said property to the grantees as tenants in common. It was then pointed out that these words could not be regarded as surplusage and must be given effect. It was argued that if they could not be regarded as surplus-age, the deed created a joint tenancy. But the Court denied this contention on two grounds. It was held, first, that under an Illinois statute the words used were not sufficient to create a joint tenancy and, secondly, that this estate was not created because there was no unity of interest. It was further stated in the opinion:

“We think the language of the deed, when properly understood, will admit of but one construction, and that is that the premises were conveyed to Maria and Michael Jobst for life, with a contingent remainder in fee to the survivor. The language of the grant is to Michael Jobst and Maria Jobst and the survivor of them, in his or her own right. It was doubtless intended that the one who should die first should take only a life-estate in the premises, with remainder in fee to the survivor and his heirs. Ewing’s Heirs v. Savary, 3 Bibb. [Ky.] 235, is a case in point. There the grantor made a deed to two persons, and ‘the survivor of them, his heirs and his assigns.’ The court held that the grant conveyed an estate for life and a contingent remainder in fee to the survivor. It is there said: ‘Although there is no express limitation to them for life, the express limitation of the fee to the survivor necessarily implies it. Nor can there be any doubt that the contingent remainder is good, for there was a particular estate of freehold to support it, and eo instante that the particular estate determined the estate in remainder commenced.”

In Phelps v. Simons, 159 Mass. 415, 34 N. E. 657, 658, it is stated: “The bequest in this case is to the husband and his wife, ‘and the survivor of them, and the heirs of such survivor.’ A conveyance in this form, at common law, to persons not husband and wife, would give a joint estate for life, and a contingent remainder to the survivor.”

In Rowland v. Rowland, 93 N. C. 214, the deed was to “John B. Rowland and Ophelia Rowland and their heirs as aforesaid, as tenants in common; and upon the death of either one, then to the survivor and his or her heirs forever.” The Court rejected a contention that the North Carolina Act abolishing survivorship as an incident of joint tenancy prevented the creation of an estate with the right of survivor-ship and held that “a defeasible fee in common was given to Ophelia Rowland and John Rowland, and upon the death of Ophelia, the absolute fee vested in J ohn as survivor, because such was the manifest intention of the donor and because that construction is not in violation of any principle of law or rule of construction.”

In Tiffany on Real Property, Third Edition, Volume 2, pages 207 and 208, § 424, it is stated:

“A gift to two or more persons and the survivor or survivors of them has been regarded as showing an intention to create a joint tenancy, as has a gift to two persons for their joint lives, and to the survivor of them during his or her natural life, so too, of a gift to two persons ‘and the survivor of either.’ But whether the mere fact that the donor indicates an intention that the survivor or survivors shall take should be given such an effect appears to be open to question. The right of survivorship is merely one incident of a joint tenancy. Another incident of such tenancy is that any one of the tenants can destroy it, with the incidental right of survivorship, by a conveyance to a third person, and when one makes a gift to tzsoo or more with the right of survivor-ship, it appears to be a reasonable conclusion that he has in mind an indestructible right of survivorship. The view that there is in such a case of tenancy in common for life with a contingent remainder in favor of the survivor, or even that there is a tenancy in common in fee simple with an executory limitation in favor of the survivor, might seem more in accord with the intention of the grantor or testator.” (Italics mine.) Í

The author further states on pages 203 and 204, Section 421:

“In the case of a conveyance or devise to A and B and to the survivor of them, the tendency has been to regard the language used as showing an intention to create a co-tenancy in A and B for their lives, with a contingent remainder in favor of the survivor, unless words of inheritance, used as applying to both A and B, or other circumstances, indicate an intention to create a fee simple in each. In either case, at common law, A and B would take as joint tenants, but the statutes creating a presumption in favor of tenancy in common would tend to prevent this result, and any rights accruing by reason of survivorship would be based on the express limitation in favor of the survivor. By reason, moreover of the modern statutes creating a presumption in favor of the passing of a fee simple rather than a life estate, language which at common law made A.and B joint tenants for life with remainder as to the survivor, might occasionally be regarded as making them tenants in common in fee simple, subject to cross executory limitations between them, that is, with a limitation over, as to the moiety of A, in favor of B, in case of A’s death before B, and a like limitation over in favor of A, as to B’s moiety, in case of B’s death before A.”

Turning now to the phraseology of the deed before us, we cannot give effect to the phrase “as tenants by entirety” found in the granting clause, although it might

be considered as throwing some light on the intention to create an indestructible right of survivorship. See Maxwell v. Saylor, 359 Pa. 94, 58 A, (2d) 355, 359. As stated in the dissenting opinion in that case, “While calling a tenancy by an erroneous name, the grantor may, nevertheless, create a correct tenure,” and I think that by adding the phrase “and the survivor of them,” the parties in this case clearly' indicated the nature of the estate intended to be created, namely, that upon the death of either of the grantees the absolute estate should vest in the survivor. Tiffany advances two possible constructions — (1) a tenancy in common for life with a contingent remainder in favor of the survivor, and (2) a tenancy in common in fee simple with an executory limitation in favor of the survivor. We need not decide which is the better view because under the facts of this case, the result is the same. Under either construction, upon the death of Mrs. Parks the absolute fee vested in Mr. Parks.

There is a further contention by appellants that the Court below erred “in refusing to receive evidence as to the intention of the parties to the deed, and the circumstances surrounding same.” There is no merit in this exception.

The foregoing was written as an opinion concurring in part with that of the Chief Justice and dissenting in part. It has now been concurred in by a majority of the Court. This results in affirmance.

The order sustaining the demurrer and dismissing the complaint is affirmed.

Fisitburne and Stukes, JJ., concur. Baker, C. J., and Taylor, J., dissent.