Baker's Estate, In re

• Decision Date: 16 October 1956
• Docket Number: No. 48984,48984
• Citation: 247 Iowa 1380,78 N.W.2d 863
• Parties: , 64 A.L.R.2d 902 In re BAKER'S ESTATE. In the Matter of the Estate of Allie Baker, Deceased. Clara E. BAKER, Appellant, v. Margaret COBB, Petitioner-Appellee.
• Court: Iowa Supreme Court

Page 863

78 N.W.2d 863

247 Iowa 1380, 64 A.L.R.2d 902

In re BAKER'S ESTATE.

In the Matter of the Estate of Allie Baker, Deceased.

Clara E. BAKER, Appellant, v. Margaret COBB, Petitioner-Appellee.

No. 48984.

Supreme Court of Iowa.

Oct. 16, 1956.

Rehearing Denied Dec. 14, 1956.

Tesdell & Miller, Des Moines, for appellant.

Boyle & Schuler, Clear Lake, for petitioner-appellee.

WENNERSTRUM, Justice.

Petitioner brought an action in equity for a declaratory judgment to determine the effect of a sale by contract of real estate previously held in joint tenancy by a husband and wife. The trial court held the joint tenancy had been terminated by reason of the contract of sale and as a result thereof each held an undivided one-half interest in the contract at the time of the husband's death. It further held his estate was entitled to receive and collect one-half of the balance due on the real estate contract on the date of his death, and that the widow, Clara E. Baker, as administratrix, should account to his estate for the undivided one-half interest in the contract owned by the decedent, Allie Baker, at the time of his death. The widow has appealed.

It was stipulated by the parties that prior to January 17, 1952 the decedent, Allie Baker, and Clara E. Baker, his wife, were the owners of two separate pieces of property in Des Moines, Iowa; on this date Baker and his wife entered into two separate real estate contracts for the sale of the two properties to two different parties; Allie Baker died on October 26, 1952 and was survived by his widow, Clara E. Baker, and three children by a previous marriage, namely, Gerald A. Baker, Mona Hanson, and Margaret Cobb, the petitioner herein, all being adults. Following the death of Allie Baker the widow, Clara E. Baker, advised Margaret Cobb the decedent had left no estate which required probating because all of the property owned by him during his lifetime had been owned by him and his wife as joint tenants with right of survivorship; and the petitioner was further informed the widow claimed to be the owner of all property which she and the decedent owned as joint tenants and denied the estate of Allie Baker, deceased, is the owner of an undivided one-half interest in the two real estate contracts.

It was further stipulated the petitioner, Margaret Cobb is the owner of an undivided four-ninths interest in the estate of her deceased father having acquired by written assignment an undivided two-ninths interest of her sister, Mona Hanson.

The issues before this court are the same as those before the trial court. They are; (1) Was the joint tenancy in the real estate destroyed by Allie Baker and his wife when they entered into the two contracts for the sale of real estate, and (2), did the decedent, Allie Baker, and his wife create a joint tenancy with the right of survivorship and not as tenants in common by reason of the form of the contract entered into in the sale of the real estate?

This court has passed on the first question raised on this appeal. In re Estate of Sprague, 244 Iowa 540, 57 N.W.2d 212. Inasmuch as counsel for the widow has questioned the sufficiency of our previous consideration of the question herein raised we shall give further consideration to this problem. In our prior opinion we referred to and cited the following cases: In re Estate of Bernhard, 134 Iowa 603, 112 N.W. 86, 12 L.R.A.,N.S., 1029, In re Estate of Miller, 142 Iowa 563, 119 N.W. 977. In the first case this court held the sale of real estate by contract resulted in the change from real to personal property and passed as such under the terms of a will. In the second case we again held as we did in the first cited case. We deem it advisable to make a further analysis of the question here presented.

I. Blackstone in his commentaries comments on joint tenancy as follows: 'An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants the estate is called an estate in joint-tenancy, and sometimes as estate in jointure, which word as well as the other signifies an union or conjunction of interest; though in common speech the term, jointure, is now usually confined to that joint estate, * * *'. Page 180, Book II, Seventh Edition, * * *; '* * * The properties of a joint estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.', supra * * *, '* * * We are, lastly, to enquire, how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying any of its constituent unities. I. That of time, which respects only the original commencement of the joint estate, cannot indeed (being now past) be affected by any subsequent transactions. But, 2. The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised 'per my et per tout', everything that tends to narrow that interest, so that they shall not be seised throughout the whole, and throughout every part, is a severance or destruction of the jointure. And therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants; for they have now no joint-interest in the whole, but only a several interest respectively in the several parts. And for that reason also, the right of survivorship is by such separation destroyed. * * * 3. The jointure may be destroyed, by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common; * * *. 4. It may also be destroyed, by destroying the unity of interest. * * * And, whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it. * * *', supra, pages 185, 186.

In the case of Fleming v. Fleming, 194 Iowa 71, 81, 174 N.W. 946, 180 N.W. 206, 184 N.W. 296, the four requisites of a joint tenancy are mentioned. However, in connection with the question of the unities referred to by Blackstone and in the Fleming case we should call attention to the fact this court in Conlee v. Conlee, 222 Iowa 561, 269 N.W. 259, apparently discarded the four unities feature in regard to the creation of a joint tenancy and concluded the intention of the parties might be determined by their statements and actions and was sufficient to create a joint tenancy. The case of Switzer v. Pratt, 237 Iowa 788, 791, 792, 23 N.W.2d 837, further and more definitely held the 'four unities' common law rule was not applicable in Iowa and the intention of the parties should prevail.

II. Although the statement was not necessarily determinative of the case it was stated in In re Estate of Heckmann, 228 Iowa 967, 974, 291 N.W. 465, 468: '* * * There is also the recognized rule that a conveyance terminates a joint tenancy. * * *' It will thus appear this court there gave consideration to the question whether a conveyance terminated a joint tenancy. And in Wood v. Logue, 167 Iowa 436, 441, 149 N.W. 613, 615, this court again referred to the effect of a conveyance of an interest in joint tenancy and stated: '* * * Even at common law it is within the power of either tenant to sever the joint character of the title by conveying or otherwise disposing of his right or share to a third person. (Citing authorities) * * *' In Fleming v. Fleming, supra [194 Iowa 71, 174 N.W. 950], this court referred to the manner in which a joint tenancy might be severed: '* * * While the tenants are considered as one person, and the estate joint, yet each of the tenants has a moiety interest. Or, in other words, while each joint tenant is regarded as having the whole of the estate, his interest in the estate may be put to an end or severed during his life. Each joint tenant, during his life, may dispose of his share by the usual modes of conveyance; but if he die without making such disposition, the title to the thing which is the subject of the joint tenancy remains in the survivor or survivors, free from the share or moiety of the one who dies.'

It will thus appear this court has, indirectly, if not by direct holding, adhered to the general rule a conveyance terminates a joint tenancy.

The text authorities hold the conveyance of an interest by a joint tenant in favor of a stranger necessarily destroys the unity of title. Tiffany, Real Property, Third Edition (1939), Vol. 2, sec. 425, page 209, Thompson on Real Property, Permanent Edition, sec. 1780, page 317.

Other authorities bearing on the question of the severance of joint tenancy by conveyance of the interest of a joint tenant are: Stanger v. Epler, 1955, 382 Pa. 411, 115 A.2d 197, 200; Brockway's Estate v. Commissioner of Internal Revenue, 1954, 9 Cir., 219 F.2d 400; Klouda v. Pechousek, 1953, 414 Ill. 75, 110 N.E.2d 258, 261; Shelton v. Vance, 1951, 106 Cal.App.2d 194, 234 P.2d 1012, 1014; Shockley v. Halbig, 1950, 31 Del.Ch. 400, 75 A.2d 512, 513; Klajbor v. Klajbor, 1950, 406 Ill. 513, 94 N.E.2d 502, 504; Berry v. Berry's Estate, 1949, 168 Kan. 253, 212 P.2d 283, 286; Mulvanity v. Nute, 1949, 95 N.H. 526, 68 A.2d 536, 538; Ball v. Mann, 1948, 88 Cal.App.2d 695, 199 P.2d 706, 708; Hammond v. McArthur, 1947, 30 Cal.2d 512, 183 P.2d 1, 2, 3; Kozacik v. Kozacik, 1946, 157 Fla. 597, 26 So.2d 659, 661; American Oil Co. v. Falconer, 1939, 136 Pa.Super. 598, 8 A.2d 418, 421. See also Annotations, 129 A.L.R. 814 and cases cited; 14 Am.Jur., Cotenancy, sec. 14, pages 86, 87; 48 C.J.S., Joint Tenancy, § 4, p. 928.

III. It has been held a contract or covenant to convey an interest,...