Davis v. Davis, 16709

• Decision Date: 03 February 1953
• Docket Number: No. 16709,16709
• Citation: 223 S.C. 182,75 S.E.2d 46
• Parties: DAVIS et al. v. DAVIS et al.
• Court: South Carolina Supreme Court

Page 46

75 S.E.2d 46

223 S.C. 182

DAVIS et al. v. DAVIS et al.

No. 16709.

Supreme Court of South Carolina.

Feb. 3, 1953.

Bridges & Bridges and William H. Blackwell, Florence, Jones, Reed & Griffin, Kinston, N. C., for appellants.

Shuler & Harrell and J. D. O'Bryan, Kingstree, Fred P. Parker, Jr., Goldsboro, N. C., for respondents.

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 elementary 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', his 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 Jooss 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 joint 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 tenancy 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 survivorship. 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 , 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 Acts 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...