Buttonow, In re

• Decision Date: 01 February 1966
• Citation: 267 N.Y.S.2d 740,49 Misc.2d 445
• Parties: In re BUTTONOW. Application of Seymour KAGAN, as Committee of the Person and Property of Josephine Buttonow, also known as Josephine Katherine Buttonow, an incompetent person and an inmate of Central Islip State Hospital, to sell certain real property belonging to said incompetent person.
• Court: New York Supreme Court

Page 740

267 N.Y.S.2d 740

49 Misc.2d 445

In re BUTTONOW.

Application of Seymour KAGAN, as Committee of the Person and

Property of Josephine Buttonow, also known as Josephine

Katherine Buttonow, an incompetent person and an inmate of

Central Islip State Hospital, to sell certain real property

belonging to said incompetent person.

Supreme Court, Special Term, Queens County.

Feb. 1, 1966.

Alexander M. Buttonow, in pro. per.

Louis J. Lefkowitz, Atty. Gen. of State of New York, New York City (Marie Beary, Jamaica, of counsel), for State of New York.

Norman E. Klipp, County Registrar, Suffolk County, Riverhead.

JOSEPH M. CONROY, Justice.

This is a proceeding instituted by the Committee of an incompetent, Josephine Buttonow, to dispose of the proceeds of the sale of two parcels of real property in which said incompetent had an interest.

In the absence of controversy, the proceeds from the sale of the first parcel, which was appraised at $1,800, go to the incompetent. The disposition of the proceeds of sale of the second parcel, however, requires further discussion.

On November 13, 1952, the mother of the incompetent, Anelia M. Bakowski, deeded that parcel to 'Anelia M. Bakowski, widow and Josephine Katherine Buttonow, married to Alexander and Alexander M. Buttonow, married to Josephine Katherine, Jointly, all of Port Jefferson Station, Long Island, New York'. On April 28, 1957, the mother died and by her last will and testament devised her interest, if any, in the premises to the incompetent. The will was admitted to probate on August 15, 1957. The marriage of the incompetent was annulled on July 30, 1964, and the Committee petitions to sell her interest in the property.

The question presented in this proceeding is what interest the incompetent has in the proceeds of the sale of the subject real property.

The resolution of this question depends on the construction of the deed of November 13, 1952.

The husband argues that the deed dated November 13, 1952, created a joint tenancy among the mother, the husband and the wife and that therefore upon the death of Anelia M. Bakowski the husband and wife became joint tenants in the entire parcel and, upon the annulment of the marriage, the joint tenant relationship became a tenancy in common and that therefore at that time the husband became owner of a one-half interest in the real property as tenant in common.

The Committee of the incompetent argues that the deed created as to two-thirds of the parcel a joint tenancy between the husband and the wife and, as to the remaining one-third, a tenancy in common was created.

This court holds, however, for the reasons stated below, that the conveyance under consideration gave a one-half interest to the incompetent and her husband as tenants by the entirety and a one-half interest to the mother as tenant in common, which interest passed, upon the mother's death, to her daughter, thereby giving the daughter, upon the annulment of her marriage, a three-fourths share of the property.

The intent of the parties as manifested in the language of the deed is the critical factor in determining its meaning. (Lipton v. Bruce, 1 N.Y.2d 631, 154 N.Y.S.2d 951, 136 N.E.2d 900; Schwab v. Schwab, 280 App.Div. 139, 112 N.Y.S.2d 354.)

The language contained in the deed under consideration, however, is subject to conflicting interpretations. It can be argued that the designating therein of Alexander M. Buttonow and Josephine Buttonow as husband and wife is indicative of an intention to vest in them a tenancy by the entirety since such a designation is held probative of such an intent. The language contained in the deed is also susceptible to the interpretation that the separation of the gifts to Anelia and the gift to her daughter and son-in-law by the word 'and' indicates an intention to apply the term 'jointly' only to the gift of the latter two.

The husband argues that the use of the word 'jointly' in the deed obligates this court to hold that a joint tenancy was created between the three grantees. This court does not agree. The courts of this state have held that the use of the word 'jointly' in a deed is not in and of itself sufficient to create a joint tenancy. For example, in Matter of Traynor's Will, 34 Misc.2d 399, 226 N.Y.S.2d 304, the court construed a devise to 'Mrs. Catherine Frances Hornbuckle and Mrs. Harriett C. Bickerton' of the decedent's 'interest in property on the corner of Prince and Mercer Street in New York City jointly' to create a tenancy in common. The court found that the word 'jointly' was used in its common untechnical meaning to express the grantor's desire for some type of concurrent ownership rather than to create a joint tenancy with a right of...