Marchel v. Estate of Marchel

2013 WI App 100, 838 N.W.2d 97, 349 Wis. 2d 707, 2013 WL 3821471, 2013 Wisc. App. LEXIS 606
CourtCourt of Appeals of Wisconsin
DecidedJuly 25, 2013
DocketNo. 2012AP2131
StatusPublished

This text of 2013 WI App 100 (Marchel v. Estate of Marchel) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marchel v. Estate of Marchel, 2013 WI App 100, 838 N.W.2d 97, 349 Wis. 2d 707, 2013 WL 3821471, 2013 Wisc. App. LEXIS 606 (Wis. Ct. App. 2013).

Opinion

SHERMAN, J.

¶ 1. Mary L. Marchel appeals from an order of declaratory and summary judgment in favor of the Estate of Robert A. Marchel, which dismissed her complaint seeking partition of property previously held in joint tenancy between her husband, Thomas Marchel, now deceased, and his brother, Robert. Mary contends the circuit court erred when it determined that a quit claim deed purporting to transfer Thomas's undivided one-half interest in the property to Thomas [709]*709and Mary as survivorship marital property was ineffective to create a joint tenancy between Thomas and Mary in Thomas's interest in the property he had held in joint tenancy with Robert. The court held that a 1969 amendment to the statutory language which governs creation of joint tenancy caused the reinstatement of the prior common law that a grantor cannot also be a grantee in a deed creating a joint tenancy. Because we disagree with that conclusion, and because we conclude that the deed in question does not express the intention to create a joint tenancy, but rather survivorship marital property, a form of property unknown to the common law, we reverse and remand for further proceedings.

BACKGROUND

¶ 2. The parties stipulated to the facts upon which the circuit court decision was based. Prior to March 7,1970, Thomas and Robert owned the property at issue as tenants in common, at which time they executed a quit claim deed to themselves as joint tenants. Shortly thereafter, Thomas married Mary.

¶ 3. On November 24, 2008, Thomas executed a quit claim deed purporting to grant his undivided one-half interest in the property to himself and Mary, as survivorship marital property, and to terminate the prior joint tenancy with Robert. Thomas died on July 20, 2011. The next day, Mary confirmed her survivor-ship interest in the property by completing and recording the appropriate form.

¶ 4. On September 2, 2011, Mary commenced this action, seeking partition. Mary alleged that she became the sole owner of Thomas's undivided one-half interest in the property upon his death. Before he could answer [710]*710the complaint, Robert died on October 2, 2011, and the special administrator of the Estate was substituted as a party in his place. The Estate counterclaimed, alleging that Robert became the owner in fee of the entire property upon Thomas's death by virtue of his and Thomas's joint tenancy.

¶ 5. The Estate moved the circuit court for declaratory judgment and summary judgment based upon these stipulated facts. The circuit court granted the Estate's motion, dismissing the complaint, with prejudice and awarding costs. The court explained that, under the common law as it existed prior to 1947, a person could not be the grantee in a deed creating a joint tenancy in which that person was the grantor. However, the circuit court also explained that 1947 Wis. Laws, ch. 140, abrogated the common law by specifically providing that a grantor could also be a grantee in a deed that created a joint tenancy. The court concluded that as a result, the deed creating the joint tenancy between Thomas and Robert in 1970 was valid, notwithstanding that Thomas and Robert were both grantors and grantees in that deed.

¶ 6. The court went on to explain that the statute on creating joint tenancy was renumbered and recreated by 1969 Wis. Laws, ch. 334, which made major changes to the statutory scheme and took effect in July 1971. Among the changes was omission of the prior language authorizing a person to be both a grantor and a grantee in a deed to create a joint tenancy. Based upon this change, the circuit court concluded that, because statutes in derogation of the common law are to be strictly construed, the new law no longer expressly changed the common law rule that a grantor in a deed creating a joint tenancy could not also be a grantee. The court thus held that the 2008 deed that Thomas used to [711]*711attempt to create joint tenancy with Maxy was to no effect and did not sever the joint tenancy with Robert, and, as a result, declared that Robert was the owner in fee of the entire property upon Thomas's death, and therefore Mary was not entitled to the partition she sought. Maxy appeals.

DISCUSSION

¶ 7. The sole issue presented in this appeal is whether the November 24, 2008 deed from Thomas to himself and Mary validly created survivorship rights between Thomas and Maxy in Thomas's undivided one-half interest in the property.1 Irrespective of whether we employ the methodology for summary judgment or for declaratory judgment, this is a question of law, which we review de novo. Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 978, 473 N.W.2d 506 (Ct. App 1991) (whether facts fulfill a particular legal standard is a question of law).

¶ 8. We begin by examining the case law underlying the common law rule that a grantor could not be a grantee in a deed creating a joint tenancy. After considering the statutory changes wrought by amendment in 1947 to the law on the creation of joint tenancy, and their effect on the common law, we address what effect [712]*712the 1969 amendment has on the law. Finally, we address what impact, if any, these rules relating to joint tenancy have upon the creation of survivorship marital property.

A. Joint Tenancy Creation Prior to 1969

¶ 9. The common law rule that a grantor cannot also be a grantee in a deed creating a joint tenancy predates 1903. See Hass v. Hass, 248 Wis. 212, 218, 21 N.W.2d 398 (1946) (observing that the history of the common law prohibition of a grantor also being a grantee for purposes of creating a joint tenancy is reviewed in Wallace v. St. John, 119 Wis. 585, 97 N.W. 197 (1903)).

¶ 10. At common law four "unities" were necessary in order to create a joint tenancy — the unities of: (1) time (the interest must be created at one and the same time); (2) title (the interest must be created in a single conveyance); (3) person (the interest must be created by one and the same person); and (4) possession (the possession by the joint tenants must be the same). Nichols v. Nichols, 43 Wis. 2d 346, 350, 168 N.W.2d 876 (1969). In Hass, the supreme court explained that a grantor could not also be a grantee in a deed creating a joint tenancy because the unities of time and title were absent. Hass, 248 Wis. at 223. A grantor, by definition, must have received his or her interest in the property previously and therefore he or she cannot receive his or her interest as a grantee in the same deed or at the same time as the other grantee. See id.

¶ 11. Following Hass, the supreme court again addressed the rule that, by operation of common law, a joint tenancy cannot be created in a deed in which the grantor is also a grantee. See Moe v. Krupke, 255 Wis. [713]*71333, 38, 37 N.W.2d 865 (1949).2 In Moe, that rule is stated differently than it was stated in Hass, though to the same effect:

The first requisite ... is that there be grantees, two or more in number.

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Related

State v. Warbelton
2008 WI App 42 (Court of Appeals of Wisconsin, 2008)
Schlieper v. State Department of Natural Resources
525 N.W.2d 99 (Court of Appeals of Wisconsin, 1994)
Nichols v. Nichols
168 N.W.2d 876 (Wisconsin Supreme Court, 1969)
Bantz v. Montgomery Estates, Inc.
473 N.W.2d 506 (Court of Appeals of Wisconsin, 1991)
Moe v. Krupke
37 N.W.2d 865 (Wisconsin Supreme Court, 1949)
Wallace v. St. John
97 N.W. 197 (Wisconsin Supreme Court, 1903)
Estate of Johnson
175 N.W. 917 (Wisconsin Supreme Court, 1920)

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Bluebook (online)
2013 WI App 100, 838 N.W.2d 97, 349 Wis. 2d 707, 2013 WL 3821471, 2013 Wisc. App. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marchel-v-estate-of-marchel-wisctapp-2013.