Clark v. Clark, No. 10617

• Docket Nº: No. 10617
• Citation: 143 Mont. 183, 387 P.2d 907
• Case Date: December 30, 1963
• Court: United States State Supreme Court of Montana

Page 907

387 P.2d 907 143 Mont. 183 In the Matter of the Termination of the Interest of Clyde E.
Clark in and to Property Owned by Clyde E. Clark and
Harriett Rutherford Clark as Joint Tenants with Right of
Survivorship and not as Tenants in Common.
Sheldon CLARK, Shirley T. Clark, Kenneth G. Clark, Carrie
Bayne, and Sadie Hill, Plaintiffs and Appellants,
v.
Harriett Rutherford CLARK, Defendant and Respondent. No. 10617. Supreme Court of Montana. Submitted Nov. 4, 1963.
Decided Dec. 30, 1963.

Page 908

[143 Mont. 184] Morrow & Nash, James H. Morrow, Jr. (argued), Bozeman, for appellants.

Lyman H. Bennett, Jr. (argued), Roy Keister, Bozeman, for respondent.

JAMES T. HARRISON, Chief Justice.

This is an appeal from a judgment of the district court following a trial at which two separate causes, both of which turn on the same issue, were consolidated. The several appellants, who will be designated as such in this opinion, are the brothers and sisters of the deceased Clyde E. Clark, who died October 14, 1962. The respondent, Harriett Rutherford [143 Mont. 185] Clark, was the wife of Clyde E. Clark until the matrimonial union was dissolved by divorce in 1960. The appellants appeared in the district court as plaintiffs in an action to quiet title to an undivided one-half interest in certain real estate in Gallatin County, Montana; the respondent entered the controversy by way of petition for a decree terminating an alleged joint tenancy in the same property.

The issue before us arises out of the following facts. On June 26, 1950, Clyde E. Clark and his wife, Harriett Rutherford Clark, acquired the property in question by deed 'as joint tenants with right of survivorship and not as tenants in common.' The grantees were divorced September 14, 1960, and Clyde E. Clark died, leaving as heirs the appellants, on October 14, 1962. While the appellants, at the trial below, attempted to establish the existence of an agreement between Harriett and Clyde Clark which changed the estate created by the deed to one of tenancy in common, the trial court found that such an agreement did not exist. This finding is overwhelmingly supported by the evidence and, though the appellants assert that it was erroneous, they advance no argument in support of their contention. Since the finding of the lower court respecting the alleged subsequent agreement is clearly supported by substantial evidence, we conclude that the estate initially created was not changed by any subsequent agreement of the parties.

The question remaining is whether the estate so created was that of joint tenancy or was an estate by the entireties. The appellants urge that the deed vested in Mr. and Mrs. Clark an estate by the entireties which, upon the divorce of the parties, was converted by operation of law into a tenancy in common. This argument is supported by citations of authority tending to establish that the conveyance would create an estate by the entireties in some jurisdictions, Jurewicz v. Jurewicz, 317 Mass. 512, 58 N.E.2d 832 (1945); Cullum v. Rice, 236 Mo.App. 1113, 162 S.W.2d 342 (1942); Hoyt v. Winstanley,[143 Mont. 186] 221 Mich. 515, 191 N.W. 213 (1922); and that a divorce will, in the majority of jurisdictions, recognizing the estate by the entireties, transform such an estate into a tenancy in common. Anno., 59 A.L.R. 718 (1929); Anno., 52 A.L.R. 980 (1928).

Whether the estate by the entireties is an accepted mode of ownership of property in Montana has been an open question. In In re Marsh's Estate, 125 Mont. 239, 243, 234 P.2d 459, 462 (1951), this court stated:

'The common law rule that a conveyance to a husband and wife created a tenancy

Page 909

by the entirety has been replaced by the statutory rule that such a conveyance creates an interest in common unless expressly declared to be a joint interest. A tenancy by the entirety could be created only when the intention to create such tenancy was clearly and unmistakably expressed.' However, that statement is not authority for the proposition that an estate by the entireties is a possible form of ownership in this state. This court merely assumed such fact, for the purpose of the decision, and held that the property in question, government bonds, could not be held in an estate by the entireties because of the right of either co-owner to sell the bonds and extinguish the other's interest. Following In re Marsh's Estate, supra, this court held that a husband and wife became vested with a joint tenancy under a conveyance to them as 'joint tenants'. Hennigh v. Hennigh, 131 Mont. 372, 309 P.2d 1022 (1957) (see note, 19 Mont.L.Rev. 69, Fall, 1957). The Hennigh case is significant in the present context because the language used is open to the interpretation that the common-law estate by the entireties has been supplanted in Montana by the estate of joint tenancy. However, such an interpretation cannot be regarded as the holding of this court because the issue was not directly considered and its resolution was not necessary to the disposition of the case.

Because the question remains unsettled and because of the [143 Mont. 187] importance of questions affecting real property titles, we will specifically consider whether the estate by the entireties is now, or should be declared by us to be, a recognized form of ownership in Montana.

The applicable statutes are herewith set forth in full:

'A husband and wife may hold real or personal property together, jointly or in common.' (R.C.M.1947, § 36-108.)

'The ownership of property by several persons is either:

'1. Of joint interests;

'2. Of partnership interests;

'3. Of interests in common.' (R.C.M.1947, § 67-307.)

'A joint interest is...