Schwab v. Schwab

Appellate Division of the Supreme Court of New York

Schwab v. Schwab

280 A.D. 139, 112 N.Y.S.2d 354

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 30, 1952

StatusPublished

Cited by5 cases

This text of 280 A.D. 139 (Schwab v. Schwab) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwab v. Schwab, 280 A.D. 139, 112 N.Y.S.2d 354 (N.Y. Ct. App. 1952).

Pincite

Opinion

Per Curiam.

The question here is the character of the estate conveyed by a deed which runs to two or more persons and describes, only in the introductory clause, the grantees “ as joint tenants,” but includes, in the granting and habendum clauses, the words, “ unto the said parties of the second part, their heirs and assigns forever.” In the case before us the grantees were two sons of the grantors and their respective wives. The grantees are described in the introductory clause as “ Christian Schwab and Lena Schwab, his wife, Frank Schwab and Carolina Schwab, his wife, as joint tenants ”.

We hold that the recitation in the granting and habendum clauses “ the said parties of the second part, their heirs and assigns ”, while not words which in and of themselves indicate a concept of survivorship, are not repugnant to the description of the grantees in the opening clause of the conveyance. The intention of the parties should be taken from the whole instrument, and every effort made by the court to reconcile apparently inconsistent clauses. (Real Property Law, § 240, subd. 3; 26 C. J. S., Deeds, § 128; 16 Am. Jur., Deeds, §§ 172, 173; Perrin v. Harrington, 146 App. Div. 292.) In the construction of deeds that which is most certain and most material should control. (Thayer v. Finton, 108 N. Y. 394.)

No specific words are required or necessary to rebut the presumption of a tenancy in common erected by section 66 of the Real Property Law, it being enough that a contrary intent be expressed in the instrument. (Coster v. Lorillard, 14 Wend. 265, 343; Purdy v. Hayt, 92 N. Y. 446; Overheiser v. Lackey, 207 N. Y. 229.)

The words “ joint tenants ” are in themselves unequivocal, and to fly in the face of such a plain statement would not only exalt form over substance, but would ignore the realities expressed in the obvious reference of the words “ said parties ” in the granting and habendum clauses.

As the instrument can be construed within its four corners, evidence of acts of the grantees after the conveyance had been [141]*141accomplished assumes no probative value. Nor does the fact that the four grantees are two husbands and their wives affect our decision in any way. Whether each husband and wife take as tenants by the entirety or each of them as an individual is not of importance here, as the estate created is a joint tenancy, whether it be between each of the four individual grantees or between each married couple as an entity.

The defendant Caroline Schwab being the sole survivor of the original grantees, it follows that the entire fee vests in her.

The judgment should be affirmed, with costs.

All concur. Present — Taylor, P. J., McCurh, Kimball, Piper and Wheeler, JJ.

Judgment affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The question here is the character of the estate conveyed by a deed which runs to two or more persons and describes, only in the introductory clause, the grantees “ as joint tenants,” but includes, in the granting and habendum clauses, the words, “ unto the said parties of the second part, their heirs and assigns forever.” In the case before us the grantees were two sons of the grantors and their respective wives. The grantees are described in the introductory clause as “ Christian Schwab and Lena Schwab, his wife, Frank Schwab and Carolina Schwab, his wife, as joint tenants ”.

We hold that the recitation in the granting and habendum clauses “ the said parties of the second part, their heirs and assigns ”, while not words which in and of themselves indicate a concept of survivorship, are not repugnant to the description of the grantees in the opening clause of the conveyance. The intention of the parties should be taken from the whole instrument, and every effort made by the court to reconcile apparently inconsistent clauses. (Real Property Law, § 240, subd. 3; 26 C. J. S., Deeds, § 128; 16 Am. Jur., Deeds, §§ 172, 173; Perrin v. Harrington, 146 App. Div. 292.) In the construction of deeds that which is most certain and most material should control. (Thayer v. Finton, 108 N. Y. 394.)

No specific words are required or necessary to rebut the presumption of a tenancy in common erected by section 66 of the Real Property Law, it being enough that a contrary intent be expressed in the instrument. (Coster v. Lorillard, 14 Wend. 265, 343; Purdy v. Hayt, 92 N. Y. 446; Overheiser v. Lackey, 207 N. Y. 229.)

The words “ joint tenants ” are in themselves unequivocal, and to fly in the face of such a plain statement would not only exalt form over substance, but would ignore the realities expressed in the obvious reference of the words “ said parties ” in the granting and habendum clauses.

As the instrument can be construed within its four corners, evidence of acts of the grantees after the conveyance had been [141]*141accomplished assumes no probative value. Nor does the fact that the four grantees are two husbands and their wives affect our decision in any way. Whether each husband and wife take as tenants by the entirety or each of them as an individual is not of importance here, as the estate created is a joint tenancy, whether it be between each of the four individual grantees or between each married couple as an entity.

The defendant Caroline Schwab being the sole survivor of the original grantees, it follows that the entire fee vests in her.

The judgment should be affirmed, with costs.

All concur. Present — Taylor, P. J., McCurh, Kimball, Piper and Wheeler, JJ.

Judgment affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

280 A.D. 139, 112 N.Y.S.2d 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwab-v-schwab-nyappdiv-1952.

Opinion

Related

Cite This Page — Counsel Stack