Carrie G. Stewart v. Louis Bleau's Estate

• Decision Date: 06 November 1929
• Citation: 147 A. 692,102 Vt. 273
• Parties: CARRIE G. STEWART v. LOUIS BLEAU'S ESTATE
• Court: Vermont Supreme Court

147 A. 692

102 Vt. 273

CARRIE G. STEWART v. LOUIS BLEAU'S ESTATE

Supreme Court of Vermont

November 6, 1929

October Term, 1929.

Divorce---Effect on Estate by Entirety.

Divorce a vinculo converts tenancy by entirety into a tenancy in common.

APPEAL from decision of probate court for the district of Bennington, holding that real estate owned by husband and wife as an estate by entirety while marriage was in force notwithstanding their subsequent divorce, upon death of husband passed to such divorced wife by right of survivorship; and striking from the inventory of property of deceased's estate such item of property. Carrie Galipeau Stewart, a creditor, appeals. The opinion states the case.

Judgment reversed, and cause remanded with direction that there be included in the assets of deceased's estate an undivided one-half interest in the property in question. Let the result be certified to the probate court.

Theriault & Hunt for the appellant.

Present WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

SLACK

This is an appeal from a decree of the probate court striking from the inventory of the property of deceased's estate an item of $ 3,500, the appraised value of certain real estate. This property was formerly owned by the deceased and Josephine Bleau, his wife, by the entirety. At some time the date not appearing, Josephine procured an absolute divorce from the deceased, but no order or decree respecting such property was then made; nor was any step taken thereafter during his lifetime to determine its status. Josephine survived the deceased. The property was first treated as part of deceased's estate but later the probate court, on the petition of his executrices, held that Josephine, by the right of survivorship, became vested with the entire title thereto upon his death, and ordered the same dropped from the inventory of his property. The appellant who has a substantial claim against the deceased's estate which is thereby rendered worthless, in whole or in part, claims that at the time of his death, he and Josephine held such property as tenants in common, and consequently that an undivided one-half interest therein belongs to his estate.

This presents for the first time, in this State, the question of the effect of an absolute divorce on the status of property held by the parties by the entirety at the time such divorce is granted.

The only reference to the subject in our decisions, so far as we are aware, is in Corinth v. Emery, 63 Vt. 505, 22 A. 618, 25 Am. St. Rep. 780, which is relied upon to support the ruling below. To be sure, it is there said, among other things, "Divorce a vinculo does not destroy the estate, and the jus accrescendi takes effect upon the death of the one first dying." But this is mere dictum, since the question now before us was in no way involved in that case. We have other cases which recognize the peculiar characteristic of an estate by the entirety, among which are Richardson v. Daggett, 4 Vt. 336; Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517; Citizens' Savings Bank & Trust Company v. Jenkins, 91 Vt. 13, 99 A. 250; George v. Dutton's Estate, 94 Vt. 76, 108 A. 515, 8 A.L.R. 1014; and Corey v. McLean, 100 Vt. 90, 135 A. 10; but none of these shed any light on the matter.

This is not a new question, however, in many jurisdictions. While the cases do not all support the appellant's contention, it is undoubtedly the prevailing rule that by a divorce a vinculo the estate by the entirety is converted into a tenancy in common. Among the cases so holding are Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510, 13 L.R.A. 325, 26 Am. St. Rep. 475; Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685, 52 A.L.R. 886; Donegan v. Donegan, 103 Ala. 488, 15 So. 823, 49 Am. St. Rep. 53; Harrer v. Wallner, 80 Ill. 197; Lash v. Lash, 58 Ind. 526; Meyers v. East End Loan & Savings Association, 139 Md. 607, 116 A. 453; Russell v. Russell, 122 Mo. 235, 26 S.W. 677, 43 Am. St. Rep. 581; Sbarbaro v. Sbarbaro, 88 N.J.Eq. 101, 102 A. 256; Hayes v. Horton, 46 Ore. 597, 81 P. 386; Whitley v. Meador, 137 Tenn. 163, 192 S.W. 718, L.R.A. 1917D, 736; Davis v. Bass, 188 N.C. 200, 124 S.E. 566; Doherty v. Russell, 116 Me. 269, 101 A. 305; Thorley v. Thorley, L. R. (1893) 2 Ch. 229. See, also, Freeman on Cotenancy and Partition (2d ed.) § 444; 2 Bishop on Marriage, Divorce and Separation, § § 1650, 1651. The only decisions to the contrary which have come to our attention are: In re Appeal of Nellie Lewis, 85 Mich. 340, 48 N.W. 580, 24 Am. St. Rep. 94; Alles v. Lyon, 216 Pa. 604, 66 A. 81, 10 L.R.A. (N.S.) 463, 116 Am. St. Rep. 791, 9 Ann. Cas. 137; and O'Malley v. O'Malley, 272 Pa. 528, ...