Joint Tenancy: Right to Transfer by One Party: Right of Survivorship

Probably not a substantial claim: may not pass S3 (load-bearing).

Butler argued that a grant to A and B and the survivor of them and the heirs of the survivor creates a joint estate for life of the shorter liver with a contingent remainder in fee to the survivor.

“However, Butler emphasizes the fact that Coke was speaking only of a joint tenancy for life and himself sets forth the proposition that the granting of an estate to A and B, and the survivor of them and the heirs of the survivor, creates a joint estate for the life of the shortest liver with a contingent remainder in fee to the survivor.15”

• cites 2 CoKE oN LITTLE-TON, 19th ed., § 301, note by Butler (1832)Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

Destroying any of the four unities severs a joint tenancy, and severance destroys its incidents, including survivorship.

“A joint tenancy is severed by the destruction of any of the four unities; the severance of the estate destroys the incidents thereof, including the right of survivorship.8”

• cites 2 BLACKSTONE, CoMMENTARIES 18 5Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

• cites 2 TIFFANY, REAL PROPERTY, 3d ed., § 425 (1939)Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

Some states have abolished joint tenancy by statute or judicial decision; others have modified it, mainly by eliminating survivorship.

“The estate has been abolished by statute or judicial decision in some states; in others it has been modified in certain respects, principally by elimination of the right of survivorship.24”

May combine two claims.

When one joint tenant dies, their interest does not pass by descent or devise; the surviving joint tenants take under the deed that created the estate.

“Upon the death of one joint tenant his interest does not pass by descent or devise; his surviving joint tenants take by force of the deed creating the estate.7”

• cites Authorities cited, note 6.Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

Joint tenancy has not been favored in the United States because the common-law reason for favoring it, avoiding multiplied feudal duties, does not exist there.

“Joint tenancy has not been favored in the United States.The basis for the common-law preference, avoidance of multiplying feudal duties, does not exist here.23”

May combine two claims.

The net result of English cases is that a limitation of the fee to A and B and to the survivor, his heirs and assigns, creates a joint life estate with a contingent remainder in fee, while adding words that the estate is held in joint tenancy may remove that limitation and create a joint tenancy in fee.

“The net result of the English cases would seem to be that a limitation of the fee to A' and B and to the survivor, his heirs and assigns, creates a joint life estate with contingent remainder in fee, while possibly the addition of words that the estate is to be held in joint tenancy removes the effect of such limitation and creates a joint tenancy in fee.”

May combine two claims.

American courts have used three theories to reach that result: absent words of inheritance, only a life estate is created in A and B; because survivorship is implicit in joint tenancy, adding survivorship words shows intent to create something more than a mere joint tenancy; and in jurisdictions where joint tenancy or survivorship is abolished, the construction carries out the conveyor's intent.

“Three distinct theories seem to be followed in arriving at this result: ( r) in the absence of words of inheritance a life estate only is created in A and B; ( 2) since survivorship is implicit in a joint tenancy, the grantor or devisor by addition of words of survivorship must mean to create something other than a mere joint tenancy; (3) in jurisdictions where either joint tenancies or the right”

May combine two claims.

Where a modified joint tenancy exists without survivorship, an express survivorship provision must mean something other than the restricted joint tenancy, so courts adopt a joint life estate with contingent remainder in fee.

“The same reasoning applies where a modified form of joint tenancy exists, shorn of the incident of survivorship.If a grantor expressly provides for such a right, he must mean something other than the restricted joint tenancy allowed in the jurisdiction.Consequently the construction of an estate for the joint lives with contingent remainder in fee is adopted.40”

May combine two claims.

In jurisdictions where joint tenancy is abolished by statute, the only effect that can be given to an express survivorship provision is to construe it as creating a contingent remainder; it cannot create a joint estate in fee with survivorship.

“In a jurisdiction where joint tenancy is abolished by statute the only effect which can be given to the express provision for survivorship is to construe it as creating a contingent remainder; it cannot operate to create a joint estate in fee carrying with it the incident of survivorship.39”

• cites Lewis v. Baldwin, II Ohio 352 (1842)Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

• cites In re Estate of Hutchison, 120 Ohio St. 542, 166 N. E. 687 (1929)Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

In Michigan, words of inheritance are no longer necessary to convey a fee; unless the grantor expresses an intent to convey a lesser estate, the fee is conveyed.

“It is no longer necessary to add words of inheritance to convey a fee in Michigan; unless the grantor expresses an intent to convey a lesser estate in the transfer, the fee is conveyed.”

• cites 3 Mich.Comp.Laws (1929), § 13323Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim. May combine two claims.

It is regrettable that the court in Ames v. Cheyne created an indestructible right of survivorship when another possible construction would have allowed survivorship to be destroyed by severance of the joint tenancy.

“Consequently it is regrettable that the court in Ames v. Cheyne created an indestructible right of survivorship when another possible construction was open to it whereby survivorship might be destroyed by severance of the joint tenancy.”

• cites Ames v. Cheyne, 290 Mich.215, 287 N. W. 439 (1939)Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim. May combine two claims.

The Ames v. Cheyne decision is unfortunate because it construed the deed as creating a remainder preceded by a joint life estate rather than a joint tenancy in fee; a joint tenancy in fee was a possible construction and would have allowed survivorship subject to defeat by severance.

“The decision in Ames v. Cheyne 51 seems unfortunate in that it construes the deed to create a remainder preceded by a joint life estate rather than a joint tenancy in fee.The latter was a possible construction and, if adopted, the right of survivorship would be allowed, subject to being defeated by termination of the joint tenancy by destruction of any one of its four unities.52”

• cites Ames v. Cheyne, 290 Mich.215, 287 N. W. 439 (1939)Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

The only remaining basis for the Ames v. Cheyne holding would be the grantor's intent to create something other than a joint tenancy by expressly providing for survivorship; that insertion can be rationally explained as a precautionary measure to satisfy statutory requirements for creating a joint tenancy.

“The only remaining basis for the holding would be the intent of the grantor to create something other than joint tenancy since he expressly provided for survivorship.The answer to this is that such an insertion can be rationally explained as a precautionary measure to meet the statutory requirements requisite to the creation of a joint tenancy.”

• AssumptionRests on an assumption: Deeds or wills are often prepared by inexperienced persons, possibly the parties themselves, who do not visualize the possibility of a joint life estate and contingent remainders.

May combine two claims.

Joint tenancies are recognized in Michigan, but a conveyance to two or more persons is presumed to create a tenancy in common.

“Joint ~~_uancies are recognized in Michigan 45 with the qualification that a conveyance to two or more persons is presumed to be a tenancy in common.46”

• cites 3 Mich.Comp.Laws (1929), § 12964Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.