Bloomfield v. Brown

• Decision Date: 16 March 1942
• Docket Number: No. 1590.,1590.
• Citation: 25 A.2d 354
• Parties: BLOOMFIELD et ux. v. BROWN et al.
• Court: Rhode Island Supreme Court

25 A.2d 354

BLOOMFIELD et ux.

v. BROWN et al.

No. 1590.

Supreme Court of Rhode Island.

March 16, 1942.

[Copyrighted material omitted.]

Appeal from Superior Court, Newport County; Patrick P. Curran, Judge.

Suit in equity by James Bloomfield and wife against Chester Brown and others, to enjoin Chester Brown from selling on execution the named complainant's interest in certain real estate. From a final decree dismissing the bill, complainants appeal.

Appeal sustained, decree reversed, and cause remanded for further proceedings.

Robert M. Franklin, of Newport, for complainants.

Hinckley, Allen, Tillinghast & Wheeler, and Harold A. Andrews, all of Providence, for respondents.

CAPOTOSTO, Justice.

By this bill in equity the complainants, James Bloomfield and his wife, Margaret Bloomfield, seek to enjoin the respondent, Chester Brown, a judgment creditor of the husband, from selling on execution the husband's right, title and interest in certain real estate in the town of Middletown. The bill alleges that the real estate in question is held by the complainants as tenants by the entirety. The respondents demurred to this bill and their demurrer was sustained by the superior court. A final decree was thereafter entered dismissing the bill, whereupon the complainants duly appealed to this court.

The following questions are raised in this cause: First, was an estate by the entirety ever recognized and allowed by the laws of this state? Second, if this question is answered in the affirmative, is the creation of such an estate prohibited by public laws 1798, pp. 272, 273, Sec. 8, now general laws 1938, chapter 431 § 1? Third, if the answer to the preceding question is in the negative, is an estate by entirety prohibited or affected in any way by G.L.1923, chap. 290, secs. 1, 13, now G.L.1938, chap. 417, §§ 1, 13, commonly known as the Married Women's Act?

The first question requires us to recall that an estate by the entirety was well known to the common law of England long before the settlement of Providence by Roger Williams in 1636, and of Portsmouth on the Island of Aquidneck, later called Rhode Island, by Anne Hutchinson and Dr. John Clarke in 1638. It is clear to us that the colonists, upon their emigration from the mother country, brought with them to this state the common law of England, so far as it was applicable to their condition and circumstances here.

The charter of King Charles II of England, dated July 8, 1663, which continued to be treated substantially as the organic law of this state until our present constitution became operative on the first Tuesday of May, 1843, created "a body corporate and politic, in fact and in name, by the name of the Governor and Company of the English Colony of Rhode Island and Providence Plantations, in New England, in America." Among the powers granted to that body politic was the power "to make, ordain, constitute or repeal, such laws, statutes, orders and ordinances, forms and ceremonies of government and magistracy, as to them shall seem meet, for the good and welfare of said Company * * * so as such laws, ordinances and constitutions, so made, be not contrary to and repugnant unto, but as near as may be, agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there * * *."

In public laws of Rhode Island 1767, at page 55, we find an act entitled: "An Act, regulating sundry Proceedings in the several Courts in this Colony", which provides: "That all the Courts in this Colony shall be held to, and governed by, the Statutes, Laws, and Ordinances of this Colony, and such Statutes of Parliament as are herein after mentioned". Immediately following the mention of certain specific statutes, not pertinent in this cause, the act then says: "And be it further Enacted by the Authority aforesaid, That in all Actions, Causes, Matters and Things, whatsoever, where there is no particular Law of this Colony, or Act of Parliament introduced, for the Decision and Determination of the same, then and in such Cases, the Laws of England shall be in force for the Decision and Determination of the same." See G.L.1938, chap. 306, § 1.

The early common law of England, as modified by applicable statutory changes by Parliament or the colonial general assembly, was in force in this state prior to the Revolution. Although the colonial legislature provided a system for the recording of deeds as early as 1714—P.L. of R.I., pp. 50, 51—we have found no act, and none has been called to our attention, which deals with the subject of land tenure or of the estates in which land might be held in this state before the Revolution.

This historical background in matters of law convinces us that the common law of England, with reference to the nature of the estates in which land might be held in this state and the attributes of any particular estate that might be created under that law, was adopted at the time of the Revolution and became a part of the common law of this state. We therefore conclude, in answer to the first question submitted to us, that an estate by the entirety as known to the English common law was recognized and allowed by the common law of Rhode Island.

The second question before us is whether an estate by the entirety, although permitted by the common law of this state, is prohibited by P.L. 1798, pp. 272, 273, sec. 8, now G.L.1938, chap. 431, § 1. The respondents contend that such an estate, if it ever existed in this state, was prohibited by our legislature through this statute, which originally read as follows: "Sec. 8. And be it further enacted, That all gifts, grants, feoffments, devises and other conveyances of any lands, tenements and hereditaments, which have been or shall be made, to two or more persons, *whether for years, for life, in tail or in fee, shall be taken, deemed and adjudged, to be estates in common, and not in joint tenancy, unless it is or shall be therein expressly said, that the grantees, feoffees, or devisees, shall have or hold the same lands, tenements or hereditaments, as joint tenants, or in joint tenancy, or to them and the survivor or survivors of them, or unless other words be therein used, clearly and manifestly shewing it to be the intention of the parties to such gifts, grants, feoffments, devises or other conveyances, that such lands, tenements and hereditaments, should vest and be holden as joint estates, and not as estates in common." (Asterisk ours.)

In the revision of 1822 the following words appear after the asterisk in the statute just quoted: "* * * whether they be husband and wife or otherwise." The original statute, with but slight changes in form only, has remained in force up to the present time.

The respondents argue that the obvious meaning of this statute is that all conveyances or devises coming within its scope "created either (1) tenancies in common, or (2) joint tenancies, and there is no room for a third class", meaning tenancies by the entirety. In substance, they contend that, by necessary implication, the original statute and its subsequent reenactments prohibited the creation of such a tenancy.

The rules of statutory construction are well known. Only summary mention need be made of the following rules to be applied in construing the statutes involved in this cause. It must be presumed that the means employed by the legislature to express its will are adequate to the purpose and do express that will correctly. If the language of a statute is plain, free from ambiguity and expresses a sensible meaning, that meaning is conclusively presumed to be the meaning which the legislature intended to convey. Such a statute must be literally construed. Blais v. Franklin, 31 R. I. 95, 77 A. 172; Kenyon v. United Electric Rys. Co., 51 R.I. 90, 151 A. 5. If the language of a part of a statute is not clear, the intent of the legislature is to be gathered from the statute taken as a whole so that all pertinent provisions may be given effect, if reasonably possible. Bijou Amusement Co. v. Toupin, 63 R.I. 503, 9 A.2d 852. In neither instance is the court free to substitute for the will of the legislature its own ideas as to the policy of the law.

It will also be presumed that, in enacting a statute, the legislature did not intend to make any alteration in the common law, unless the language used naturally and necessarily leads to that conclusion or, as this court expressed itself in State v. Shapiro, 29 R.I. 133, at page 139, 69 A. 340, 342, "unless the intent to alter it [the common law] is clearly expressed." This rule applies in construing both criminal and civil statutes. Langlois v. Dunn Worsted Mills, 25 R.I. 645, 649, 57 A. 910.

The application of these well-established rules of construction to the aforementioned provision of P.L. 1798, as amended in 1822, and of G.L.1938, clearly shows that it was not the intention of the legislature to prohibit an estate by the entirety in this state, as the respondents contend. The statute, in plain and unambiguous language, prescribes a rule of construction to be followed in interpreting a conveyance of land to two or more persons, whether they be husband and wife or otherwise. Unless it is declared in the instrument itself that the "tenancy is to be joint, or that the same is to such persons and the survivors or survivor of them * * * or unless the intention manifestly appears that such persons shall take as joint tenants and not as tenants in common", the conveyance "shall be deemed to create a tenancy in common and not a joint tenancy."

The statute in effect declares that it is the policy of the state to look with but little favor upon joint tenancies under modern conditions. The rule of construction prescribed by the statute is that, in construing a conveyance of land, an intention to create a tenancy in common will, if possible, be imported rather than an intention to create a joint tenancy; or, stating the same rule...