Witzel v. Witzel

• Citation: 386 P.2d 103
• Decision Date: 29 October 1963
• Docket Number: No. 3154,3154
• Parties: Ethel K. WITZEL, Appellant (Plaintiff below), v. Edith Bell WITZEL (also known as Edith B. Witzel) and Edith Bell Witzel, the Executrix of the Estate of Albert W. Witzel, deceased, Appellees (Defendants below), and Maurice W. Witzel and Una Witzel Watkins, Defendants below.
• Court: Wyoming Supreme Court

Page 103

386 P.2d 103

Ethel K. WITZEL, Appellant (Plaintiff below), v. Edith Bell WITZEL (also known as Edith B. Witzel) and Edith Bell Witzel, the Executrix of the Estate of Albert W. Witzel, deceased, Appellees (Defendants below), and Maurice W. Witzel and Una Witzel Watkins, Defendants below.

No. 3154.

Supreme Court of Wyoming.

Oct. 29, 1963.

Edward S. Halsey and Halsey, Whitley, Hollaway & Liamos, Newcastle, Sheridan, Orr, Barnes, Duval & Benton, Ventura, Cal., for appellant.

Bluford H. Light, Downey, Cal., Jones & Dumbrill and Richard S. Dumbrill, Newcastle, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Plaintiff brought action to quiet her title to the entire estate in certain lands and to the surface estate only in other lands, claiming a deed to her former husband Albert W. Witzel and herself, while they were man and wife, created in them a joint tenancy with survivorship and that upon Albert's death she had succeeded to those entire estates. It was stipulated that defendants Maurice W. Witzel and Una Witzel Watkins, children of Albert and plaintiff, did not resist plaintiff's claim. Following trial without jury, the court construed the deed under which plaintiff claimed title as having created an estate by the entireties which became converted into a tenancy in common when Albert and plaintiff were divorced. Judgment was accordingly rendered denying plaintiff's claim and in favor of defendant Edith Bell Witzel, the widow of Albert. Plaintiff appeals.

The salient facts are as follows. In 1930, while Albert W. and Ethel K. Witzel were husband and wife, the critical portion of the deed granting them the lands in question was in the following language:

'* * * GRANT, BARGAIN, SELL, CONVEY AND CONFIRM, unto the said Parties of the Second part, ALBERT W. WITZEL and ETHEL K. WITZEL, husband and wife, as joint tenants, not as tenants in common and to their heirs and assigns forever, * * *.'

Also, the habendum recited:

'TO HAVE AND TO HOLD the same to the said ALBERT W. WITZEL and ETHEL K. WITZEL, husband and wife, as joint tenants, not as tenants in common, their heirs and assigns forever; * * *'

In 1935, Albert and Ethel were divorced in California, the decree making no provision regarding property. In 1937, Albert married Edith Bell Witzel, who became his widow when he died in 1960, and who was named as sole devisee in his will.

In 1949, after their divorce, Albert and Ethel joined in a deed conveying the mineral rights in a portion of the lands in question unto a person named Hickey, who in turn conveyed to Maurice W. Witzel an undivided 37 1/2 percent interest in those mineral rights; another undivided 37 1/2 percent interest in the mineral rights to Una K. Watkins, both being children of Albert and Ethel, and to Edith, the second wife of Albert, the remaining undivided 25 percent interest in the mineral rights for her life only, with remainder to Una K. Watkins and Maurice W. Witzel, share and share alike.

In this jurisdiction the answer to the dispute is not difficult because under prior decisions by this court, where the words used in a deed clearly designate the estate conveyed, there is no need to resort to rules of construction or to give judicial interpretation.

Appellees, citing Annotation 161 A.L.R. 457, 471, III. 3, as authority, say the majority rule is that a conveyance to husband and wife as 'joint tenants' creates a tenancy by the entireties. We do not find that authority saying there is any majority rule. But 4 Thompson on Real Property, § 1787, p. 75, 1961 Replacement, says 'under the majority rule a conveyance to a husband and wife as 'joint tenants' creates a joint tenancy, not a tenancy by the entireties' (Emphasis supplied.) (See Thornburg v. Wiggins, 135 Ind. 178, 34 N.E. 999, 1001, 22 L.R.A. 42, 41 Am.St.Rep. 422), and that it is the minority rule that a joint tenancy cannot exist between a husband and wife, only a tenancy by the entireties, 4 Thompson, supra, § 1785, at p. 61. An examination of Annotation 161 A.L.R. 457, shows most cases apparently favorable to appellee are from jurisdictions which have either ignored joint tenancies and survivorship as an incident to joint tenancy, abolished joint tenancies, modified the same, or have qualified the presumption that a conveyance to husband and wife creates an estate by the entirety by limiting that presumption to instances where there is nothing more in the deed or devise which indicates a contrary intention. We accept the presumption that a conveyance to husband and wife, without saying anything more, intends the creation of a tenancy by the entireties, but it must also be recognized that the addition of such words, 'as joint tenants' overcomes that presumption.

Research indicates Connecticut ignores the doctrine of survivorship, Phelps v. Jepson, 1 Root 48, 1 Am.Dec. 33; Whittlesey v. Fuller, 11 Conn. 337; Allen v. Almy, 87 Conn. 517, 89 A. 205; as has Georgia in Nash v. Martin, 90 Ga.App. 235, 82 S.E.2d 658, and Michigan in Hoyt v. Winstanley, 221 Mich. 515, 191 N.W. 213. Pennsylvania abolished survivorship as an incident to joint tenancy although conceding there was no legal restriction to otherwise provide survivorship by agreement, by will, or by deed. See Montgomery v. Keystone Savings & Loan Ass'n, 150 Pa.Super. 577, 29 A.2d 203, 204. And Washington in Holohan v. Melville, 41 Wash.2d 380, 249 P.2d 777, 255 P.2d 899, said survivorship may be created by contract. The State of Maine, in Appeal of Garland, 126 Me. 84, 136 A. 459, certiorari denied 274 U.S. 759, 47 S.Ct. 769, 71 L.Ed. 1338; Maryland in Williams v. Dovell, 202 Md. 351, 96 A.2d 484; Massachusetts in Cross v. Cross, 324 Mass. 186, 85 N.E.2d 325; New York In re Blumenthal's Estate, 236 N.Y. 448, 141 N.E. 911, 30 A.L.R. 901; and South Carolina in Free v. Sandifer, 131 S.C. 232, 126 S.E. 521, looked with disfavor on joint tenancy, and still other states rule out joint tenancy unless expressly declared in the grant or devise. See 4 Thompson, supra, § 1775, at p. 11; and Hill v. Breeden, 53 Wyo. 125, 79 P.2d 482. If we have not misread their decisions, Alabama, Arkansas, Iowa, Kansas, Kentucky, Massachusetts, Michigan, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, and South Dakota have either abolished survivorship as incident to joint tenancy or have abolished or otherwise modified joint tenancy. 4 Thompson, supra, § 1782, at p. 36. The same seems now to be true of New York, although in the early case of Cloos v. Cloos, 55 Hun 450, 8 N.Y.S. 660, 24 Abb.N.C. 219, 29 N.Y.St.Rep. 200, a conveyance to husband and wife "as joint tenants, and not as tenants in common," to them and "their heirs and assigns, forever" (the exact words used in the deed before us) was held to make husband and wife joint tenants and not tenants by the entireties. Decisions from the named states, with the exception of New York, are not therefore helpful because in those jurisdictions survivorship in joint tenancy was either abolished or joint tenancy was in some fashion modified or even abolished; whereas, in Wyoming the incidence of survivorship has not been abolished nor has joint tenancy been abrogated or modified. Wambeke v. Hopkin, Wyo., 372 P.2d 470, 475, and see Hundley v. Neely, Wyo., 365 P.2d 196.

It might be added that Walker v. Grogan, D.C.Mich., 283 F. 530; Thornburg v. Wiggins, supra; Case v. Owen, 139 Ind. 22, 38 N.E. 395; Wilken v. Young, 144 Ind. 1, 41 N.E. 68, 590, 55 Am.St.Rep. 162; Hannan v. Towers, 3 Harr. & J. 147, 5 Am.Dec. 427; Fladung v. Rose, 58 Md. 13; Sanderson v. Everson, 93 Neb. 606, 141 N.W. 1025; Rosecrans v. Rosecrans, 99 N.J.Eq. 176, 132 A. 100; Taylor v. Lowencamp, 104 N.J.Eq. 302, 145 A. 329; Jooss v. Fey, 129 N.Y. 17, 29 N.E. 136; Wurz v. Wurz, Sup., 15 N.Y.S. 720, 27 Abb.N.C. 58; Van Ausdall v. Van Ausdall, 48 R.I. 106, 135 A. 850; Coffman v. Coffman, 108 W.Va. 285, 150 S.E. 744; and Edwards v. Edwards, 117 W.Va. 505, 185 S.E. 904, although early cases, directly held an estate to husband and wife in joint tenancy created a joint tenancy and not a tenancy by the entirety. In considering the holdings of other jurisdictions, it should be kept in mind that a major portion which hold conveyances 'to husband and wife as joint tenants' creates estates by the entireties are jurisdictions which either regard joint tenancies with disfavor, have modified them, have abolished their survivorship, or have abolished joint tenancies altogether. This leaves those cases of little if any assistance.

It might be noted that although Montana at one time abolished joint tenancies with right of survivorship, the same was later restored, and in Hennigh v. Hennigh, 131 Mont. 372, 309 P.2d 1022, the court there said the use of the words 'joint tenants' created a joint tenancy although the words 'heirs and assigns' were also used.

This court is aware that not infrequently it has been said the use of the same words of a conveyance which makes two other persons joint tenants will make a husband and wife tenants by the entireties. See Annotation 161 A.L.R. 457, 463, which lists 17 states where that statement has been made. It is true that although a conveyance to a man and woman with right of survivorship would create in them a joint tenancy if they were not married, if they were husband and wife at the date of the conveyance, an estate by the entirety would be created. But the rule does not go further than that. Where the conveyance uses additional words indicating the grantor's intention to create a particular estate in the grantees, such as 'joint tenancy,' the estate conveyed will be that named in the deed, notwithstanding the grantees are husband and wife. 4 Thompson, supra, § 1787, citing ample authority says at page 68, 'a husband and wife can take title to property in a manner other than as tenants by the entireties.' In § 1785,...