Bruce v. Dyer

• Decision Date: 01 September 1986
• Docket Number: No. 73,73
• Citation: 524 A.2d 777,309 Md. 421
• Parties: , 67 A.L.R.4th 217, 55 USLW 2703 Nancy Lee BRUCE v. Linda Lee DYER, Pers. Rep. of the Estate of Horace Allen Bruce. ,
• Court: Maryland Court of Appeals

Page 421

309 Md. 421

524 A.2d 777, 67 A.L.R.4th 217, 55 USLW 2703

Nancy Lee BRUCE v. Linda Lee DYER, Pers. Rep. of the Estate of Horace Allen Bruce.

No. 73, Sept. Term, 1986.

Court of Appeals of Maryland.

May 5, 1987.

Peyton Paul Phillips, Frederick, for appellant.

Alan D. Massengill (Laurie R. Gitajn, on the brief), Gaithersburg, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and MARVIN H. SMITH, Associate Judge of The Court of Appeals of Maryland (retired), Specially Assigned.

MARVIN H. SMITH, Judge, Retired, Specially Assigned.

Here a separation and property settlement agreement provided that certain real property of the parties held as tenants by the entireties should be sold and the proceeds divided between the estranged spouses. We shall hold that it created an enforceable interest in that real property which formed part of the estate of the spouse who unexpectedly died prior to any sale's being negotiated. The facts are not in dispute.

On October 11, 1984, Horace Allen Bruce and Nancy Lee Bruce, husband and wife, executed a voluntary separation and property settlement agreement. It first stated that the parties had separated. It then said:

"It is the mutual desire of the parties in this agreement to formalize their voluntary separation and to settle all questions of ... their respective rights in the property or estate of the other, and in property owned by them jointly or as tenants by the entireties, and in marital property, and all other matters of every kind and character arising from their marital relationship."

Paragraph 6 of the agreement recited that the parties owned their marital home as tenants by the entireties. The paragraph continued:

"The parties shall sell the Home putting it up for sale and putting it on the market by October 15, 1984, either directly or through a broker of their choice, at a price agreed upon by the parties, or, if they are unable to agree, at a price determined by a broker selected by Husband and Wife or their counsel. The parties shall execute any contract to make a sale of the Home and any deed and/or other document necessary to consummate the sale under contract and in accordance with this Paragraph. If for any reason either party does not, within 21 days of delivery to him, execute any listing contract or contract to make a sale of the Home, in accordance with the provisions of this Paragraph, or any deed, instrument or other such document, then the other party may execute the same on his or her behalf as his or her agent pursuant to any agency coupled with an interest, and each party hereby irrevocably appoints the other with the full power of an attorney-in-fact for him or her to execute, acknowledge and deliver any and all necessary or desirable contracts, deeds, releases, mortgages, instruments or documents for the purpose of listing, conveying, clearing or waiving any interest or right in the Home as fully as he could do personally, with full power of substitution and confirming all that the agent and attorney-in-fact or substitute may do or cause to be done. Upon the sale of the Home in accordance herewith, the net proceeds of sale shall be divided 55% to Husband and 45% to Wife."

The agreement concluded, "As to these covenants and promises, the parties hereto severally bind themselves, their heirs, personal representatives and assigns."

The husband died on December 14, 1984, as a result of injuries sustained in an automobile accident. At that time no divorce had been obtained and the home had not been sold.

The wife brought a suit in the Circuit Court for Frederick County in which she alleged that the personal representative of the estate of the husband had made claim for a 55% interest in the parcel. She requested the court to pass an order declaring her to be the sole owner of the entire parcel of real estate. The widow maintained that the tenancy by the entireties never terminated during the lifetime of the parties and that sole ownership of the land in question thus vested in her upon her husband's demise. The personal representative, on the other hand, posited that no right of survivorship existed because the separation agreement converted the tenancy by the entireties into a tenancy in common. Following oral argument on the personal representative's motion for summary judgment, the trial judge ruled in favor of the estate:

"There's no question, in my mind, anyway, that the tenancy, the estate can be terminated by contractual agreement between the parties. It's clear that the intent of the parties by the agreement was to, in effect, terminate the tenancy by the entireties; that they each spelled out their respective rights in the estate, fifty-five/forty-five percent, as shown; and contractually, I see no reason, by reference to any of the cases, why the parties cannot terminate the estate by a valid contract.

"And for that reason I will find that the estate was terminated by the valid contract between the parties, and that Mrs. Bruce did not take the entire property by operation of law upon the death of Mr. Bruce, while they were still married; and I will grant the motion for summary judgment filed by the defendant."

In Bruce v. Dyer, 67 Md.App. 499, 503, 508 A.2d 510, 512 (1986), the Court of Special Appeals determined that execution of the separation and property settlement agreement did not convert the tenancy by the entireties into a tenancy in common. As a result, "on the death of her co-tenant by the entireties, [Nancy Lee Bruce] gained sole legal title to the property." The court went on to hold, however, that the wife's contractual obligation with respect to the property did not terminate upon the husband's death. In other words, the personal representative was entitled to compel a sale of the property and division of the proceeds in accordance with the terms of the agreement. Id. at 507, 508 A.2d at 514.

We granted cross petitions for a writ of certiorari. In this Court the personal representative insists that the separation and property settlement agreement converted the tenancy by the entireties into a tenancy in common. Thus, she argues, the Court of Special Appeals "achieved the correct result, but by an incorrect theory." The widow, on the other hand, does not take issue with the first portion of the intermediate court's holding. Rather, she argues that her husband's death operated to terminate the separation and property settlement agreement, thereby "eliminating any cause of action in the husband's heirs to enforce said agreement to sell real property as against the wife."

I

Although some states have either abolished or significantly altered the estate of tenancy by the entireties, see, e.g., Columbian Carbon Co. v. Kight, 207 Md. 203, 207, 114 A.2d 28, 30 (1955), Maryland retains the estate in its traditional form. Id. at 208, 114 A.2d at 31; accord Arbesman v. Winer, 298 Md. 282, 468 A.2d 633 (1983) (discussing at length the nature of the estate and reviewing cases illustrative of its continuing validity in Maryland). 2 H. Tiffany, The Law of Real Property § 430 (B. Jones 3d ed. 1939 & Supp.1987) defines tenancy by the entireties as

"the tenancy by which husband and wife at common law hold land conveyed or devised to them by a single instrument which does not require them to hold it by another character of tenancy. The title of both husband and wife arises out of the instrument, whether deed, devise or gift, by virtue of which they become seized of the estate. A tenancy by the entirety cannot be created unless the four essential common law unities, namely, interest, title, time and possession, co-exist. Some districts may require the concurrence of a fifth unity, 'person.' A tenancy by the entirety, though differing from a joint tenancy in some particulars, as seizin, possibility of severance and the nature of the survivor's interest, is essentially a form of joint tenancy, modified by the common-law theory that husband and wife are one person. This unity is, it has been said, the distinctive feature of the estate. There are no moieties in a tenancy by the entirety, as each party holds the entire estate. Thus, neither spouse owns an undivided half interest in entirety property; the whole entirety estate is vested and held in each spouse and continues in the survivor." (Footnotes omitted.)

The "unities" mentioned by Tiffany have reference to the creation of the estate. They consist of requirements that the tenants enjoy identical interests; enjoy identical, undivided possession; and that the tenancy commence at the same time via the same instrument. Alexander v. Boyer, 253 Md. 511, 519, 253 A.2d 359, 364 (1969) (quoting 2 American Law of Property § 6.1, at 4 (J. Casner ed. 1952)); 2 Tiffany, supra, § 418.

Maryland law is in accord with the principles set forth in Tiffany. In Marburg v. Cole, 49 Md. 402 (1878), Judge Alvey said for the Court:

"By the common law of England, which is the law of this State, except where it has been changed or modified by statute, a conveyance to husband and wife does not constitute them joint tenants, nor are they tenants in common. They are, in the contemplation of the common law, but one person, and hence they take, not by moieties, but the entirety. They are each seised of the entirety, and the survivor takes the whole. As stated by Blackstone, 'husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.' 2 Bl. Com. 182." 49 Md. at 411, quoted in Arbesman, 298 Md. at 286-87, 468 A.2d at 635.

A tenancy by the entireties may be terminated or severed while both spouses are alive. In that event, the estate becomes a tenancy in common, and, among other things, the...