Bird v. Stein

• Decision Date: 23 January 1952
• Docket Number: No. 474.,474.
• Parties: BIRD et al. v. STEIN et al.
• Court: U.S. District Court — Southern District of Mississippi

102 F. Supp. 399

BIRD et al. v. STEIN et al.

No. 474.

United States District Court S. D. Mississippi, W. D.

January 23, 1952.

Brunini, Everett, Grantham & Quin, Vicksburg, Miss., for plaintiffs.

Edward J. Bogen, Greenville, Miss., Farish, Keady & Campbell, Greenville, Miss., for defendants.

MIZE, District Judge.

All parties to this suit are children of V. A. Stein and Sarah Stein and until a short time prior to the bringing of the suit they were devoted to each other and had implicit confidence in each other. The parents, V. A. Stein and his wife, Sarah Stein, had reared eight children in a commendable fashion on "Little Hope" Plantation and endeavored to keep the close relationship of the family during their own lives and each left a will at death. V. A. Stein died Aug. 27th, 1933. Sarah Stein died in 1935. V. A. Stein executed a will on Nov. 26th, 1930 and a codicil thereto December 30th, 1930. This will was probated and by its terms he undertook to set up a trust in his property and appointed Mrs. Gold and Lawrence Stein trustees therein. Sarah Stein executed a will but same was never probated or became effective and its contents are material herein only in so far as it may have an evidentiary value.

This controversy stems from the will of V. A. Stein and is an action by the plaintiffs by which they seek an accounting from Lawrence Stein as trustee under the will and charge him with fraud and commingling trust property with his own and making valuable investments which they allege accrued for their benefit. The defense is set up that Lawrence did not qualify or attempt to act as trustee but had a specific agreement with all the parties that he would not act under the trust, but that if the other children wanted to rent the property — Little Hope Plantation — to him for a definite sum per year he would take it that way but that under no circumstances would he operate the trust. Further that as a matter of law there was no trust under the will because V. A. Stein owned no interest in any property whatever at the time of his death except some personal property which he had willed to Lawrence in fee. That the deed to the property known as Little Hope Plantation was acquired by V. A. Stein and Sarah Stein as joint tenants and not as tenants in common and at the time of the death of V. A. Stein the entire property vested in Sarah Stein and that during her life he rented from her and after her death he rented from all the other heirs and paid them the rent which they accepted.

Out of the vast amount of conflicting testimony several questions arise both of law and fact. It may be said that the first one and major one to arise is:

Did the deed by which the property was acquired create a joint tenancy with the right of survivorship, and if it did, was there a termination of it during the life of V. A. Stein? Defendants urge it did so create and that it was not severed by conduct or otherwise. Plaintiffs say it did not create a joint tenancy under the Mississippi statute, but if it did it was severed and terminated during the lifetime of V. A. Stein by conduct and written instruments. Other questions to arise are:

1. What property passed under the will of V. A. Stein?

2. Did Lawrence Stein have a definite agreement with his brothers and sisters that he would not act under the trust but would agree only to rent the property from them for a definite amount per year?

3. If there were no agreement what would be the rights of the parties?

4. Was there an equitable election by Lawrence Stein and is he now estopped to deny he was acting as trustee?

Title to Little Hope Plantation was acquired by a deed dated Feby. — 1904 and is well worded but the only important part here is as follows: "Does sell, transfer and convey unto Victor A. Stein and Sarah Stein, * * * as joint tenants and not as tenants in common." These grantees, husband and wife, went into possession of the property and lived there until their deaths. They were thrifty but uneducated. They reared the family there but Lawrence was the one they depended upon more than any of the others and he was the most successful one. He showed business ability and an ambition to work early in life.

The applicable Mississippi Statute is section 834, Code of 1942 and reads as follows: "All conveyances or devises of land made to two or more persons, or to a husband and wife, shall be construed to create estates in common, and not in joint-tenancy or entirety, unless it manifestly appears from the tenor of the instrument, that it was intended to create an estate in joint-tenancy or entirety with the right of survivorship; but this provision shall not apply to mortgages or devises, or conveyances made in trust."

It is clear from the language of the deed that it was intended to create a joint tenancy and not tenants in common. More convincing language could not have been chosen, and from the entire language of the deed it is equally apparent that it was drawn by a lawyer or by one versed in legal phraseology. It must be assumed that the parties reduced to writing what they had in mind and what was intended when they chose this language. When a joint tenancy is created the right of survivorship follows as an incident thereto. A joint tenancy can be created only by the acts of the parties and as known at common law required unity of time, title, interest and possession.

Joint tenancies are not favored in Mississippi but such title has not been abolished. When it is intended to create such a title apt language must be chosen. Wolfe v. Wolfe, 207 Miss. 480, 42 So.2d 438; McAllister v. Plant, 54 Miss. 106; Doran v. Beale, 106 Miss. 305, 63 So. 647. In the Doran case the court held that a conveyance to two persons jointly was not sufficient as the language did not manifestly import an intent to create a joint tenancy. However in the Wolfe case it was held that it was not necessary to use the exact language of the statute and that where appropriate language was used, the court would not be justified in reading out of the deed any part of it. When the scrivener of the present deed used the words "as Joint Tenants, and not as Tenants in common", he made clear his meaning. Therefrom it manifestly appears that it was intended to create a joint tenancy with the right of survivorship. Many additional authorities outside the state could be cited in support of this holding but the Mississippi ones are controlling and suffice. An interesting case, however, is that of Mitchel v. Frederick, 166 Md. 42, 170 A. 733, 92 A.L.R. 1412, and contains an instructive announcement upon the question. Therefore upon the death of V. A. Stein the fee-simple title vested in Sarah Stein.

Plaintiffs urge that if a joint tenancy was created by the deed, it was severed by the conduct of the parties and particularly that of V. A. Stein during his lifetime. It is shown that for the years 1931, 1932 and 1933 V. A. Stein rented all the property to Lawrence Stein for $3000.00 per year and that Sarah Stein had nothing to do with the transaction. However, during all that time she was living on the place with V. A. and of course accepting all the privileges of it as a homestead and the support of her husband and made no objections to his leasing it as an entirety. It is also shown that V. A. Stein at one time executed a deed of trust covering the crops grown on Little Hope Plantation together with the implements and livestock on the place. Lawrence Stein substantiated the leasing arrangement with his father by bank statements and other memoranda and circumstances, but it definitely appears that he rented only the farming land and that V. A. and Sarah Stein continued to occupy the land and hold possession subject to the farming done under the lease. The lease was oral but valid under the law of Mississippi, being from year to year renewed. A verbal lease for one year is good. McCroy v. Toney, 66 Miss. 233, 5 So. 392, 2 L.R.A. 847. The property from 1928 through 1933 was assessed on the land rolls as "V. A. Stein Property." V. A. Stein made a will dated Nov. 26th, 1930, wherein he undertook to devise to his wife, Sarah, for her life, "All of my right, title and interest in and to all of my property, both real, personal and mixed" with the remainder in trust for his children and two named grandchildren. Shortly thereafter he made a codicil by which he bequeathed all his personal property not theretofore sold to Lawrence. Lawrence and Mrs. Gold were named as executors and trustees under the purported trust. They probated the will but there was no real estate left and very little personalty and Lawrence out of his own personal funds paid all the debts and funeral expenses and nothing further was done under the will as shown by the probate proceedings thereunder.

Council for plaintiffs contend that by this course of conduct by V. A. Stein there was a severance of the joint tenancy. Conduct and dealing of course under some circumstances can sever such an estate. In 48 C.J.S., Joint Tenancy, § 4, pp. 927, 928, it is said: "A joint tenancy may be terminated altogether by mutual agreement between the parties or by any conduct or course of dealing sufficient to indicate that all parties have mutually treated their interests as belonging to them in common."

Likewise Tiffany On Real Property (3rd Ed.), Sec. 425, Ch. 9, p. 208, states: "An agreement between joint tenants to hold as tenants in common will have this effect (to sever the joint tenancy), and such an agreement may be inferred from the mode in which the parties deal with the property."

However, 48 C.J.S., Joint Tenancy, § 4, p. 928, states: "The severance must take place before the death of the cotenant who has alienated his interest, and before the remaining cotenant has become the owner of the whole by virtue of his right of survivorship, and, hence, where a conveyance by a cotenant does not take effect until after his death, there is no severance. So,...