Cross v. Cross

• Decision Date: 07 April 1949
• Citation: 324 Mass. 186,85 N.E.2d 325
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WILLIAM F. CROSS & others v. THOMAS FRANK CROSS & others.

324 Mass. 186

85 N.E.2d 325

WILLIAM F. CROSS & others v. THOMAS FRANK CROSS & others.

Supreme Judicial Court of Massachusetts, Norfolk.

April 7, 1949

January 3, 1949.

Present: QUA, C.

J., LUMMUS WILKINS, SPALDING, & WILLIAMS, JJ.

Joint Tenants. Tenants in Common. Real Property, Joint tenancy, Tenancy in common. Devise and Legacy, What estate, Survivorship. Words "Share and share alike."

By a provision in the will of a father giving, subject to a life estate in certain realty to a daughter who survived him, all his property to two named sons, who both survived him "share and share alike, or to the survivor of them," the sons under G. L. (Ter. Ed.) c. 184, Section 7, became vested at the testator's death with a remainder in such realty as tenants in common in equal shares and not as joint tenants.

PETITION for partition, filed in the Probate Court for the county of Norfolk on January 7, 1948.

The case was heard by Reynolds, J. L. H. Miller, for the respondents, submitted a brief.

G. P. Love, Jr., (A.

R. Lucid with him,) for the petitioners.

WILKINS, J. This petition for partition of real estate presents the question whether a tenancy in common or a joint tenancy was created by the will of Patrick Cross. The will, after giving a life interest in the real estate to the testator's daughter Margaret, provides: "Seventh: To my son Thomas . . . and to my son William . . . share and share alike, or to the survivor of them, all of my estate whether the same be real, personal or mixed and wheresoever located, subject, however, to provision No. 6 . . . for my daughter Margaret." The testator died on April 23, 1928. William died intestate on March 12, 1933, leaving a widow and two children, who are the petitioners. Thomas died testate on November 3, 1940, devising his interest to four children, who are the respondents. Margaret died on September 10, 1947. The foregoing appears in a voluntary report of the material facts made by the judge, who ruled that, at the death of the testator, Thomas and William became vested with a remainder in equal shares as tenants in common. From a decree ordering partition by sale the respondents appealed, and filed a request for a report of the material facts under the statute. G. L. (Ter. Ed.) c. 215, Section 11, as amended by St. 1947, c. 365, Section 3. The judge, stating that he did so at the request of the respondents, amended his voluntary report of the material facts by adding: "No oral testimony was offered. All findings of facts, contained herein, were agreed to by the parties, and [the report] includes all evidence submitted to the Court." A decree was entered denying the request for a report, and the respondents again appealed. Sullivan v. Sullivan, 320 Mass. 114 .

The respondents have not argued the latter appeal. In any event they were not harmed. The amended report contains everything which was before the court, and is the equivalent of a report under the statute. The question open on the appeal from the decree for partition is whether on the findings reported, the decree was rightly entered. Jose v. Lyman, 316 Mass. 271 , 277, and cases cited.

It is provided in G. L. (Ter. Ed.) c. 184, Section 7: "A conveyance or devise of land to two or more persons . . . shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy." The purpose of this statute was to change the rules of construction of the language used in conveyances and devises of real estate, so that thereafter, where there was no expression of a contrary intent, the presumption was of the creation of a tenancy in common, instead of a joint tenancy as at common law. Hoag v. Hoag, 213 Mass. 50 , 52. Since 1785 in this Commonwealth a conveyance or devise to several always creates a tenancy in common unless the deed or the will expressly provides for a joint tenancy. St. 1785, c. 62, Section 4. Rev. Sts. c. 59, Sections 10, 11. Gen. Sts. c. 89, Sections 13, 14. Pub. Sts. c. 126, Sections 5, 6. R. L. c. 134, Section 6. Burnett v. Pratt, 22 Pick. 556, 557. "Joint tenancy and its doctrine of survivorship are not in harmony with the genius of our institutions, nor are they much favored in law." Park v. Parker, 216 Mass. 405 , 407. See Bernatavicius v. Bernatavicius, 259 Mass. 486 , 490; Pineo v. White, 320 Mass. 487 , 490. Nevertheless, when it plainly appears from the deed or will that the grantor or testator intended that the survivors should take the whole, effect will be given to such intention. Frost v. Courtis, 167 Mass. 251 , 253.

The respondents' contention is that the gift to the sons "share and share alike, or to the survivor of them" has substantially the same meaning as the statutory exception, "to them and the survivor of them." They argue that the testator's words are appropriate for the creation of a joint tenancy, and that at his death Thomas and William became vested with a remainder as joint tenants. We cannot adopt this argument. To begin with, the expression "share and share alike," standing alone, would create a tenancy in common. Emerson v. Cutler, 14 Pick. 108, 114. Shattuck v. Wall, 174 Mass. 167 , 169-170. Kruger v. John Hancock Mutual Life Ins. Co. 298 Mass. 124 , 129. Boston Safe Deposit & Trust Co. v. Doolan, 307 Mass. 233, 238. Jarman, Wills (7th ed.) 1768-1769. The general principle being that a will speaks as of the time of the testator's death (Ball v. Holland, 189 Mass. 369 , 373; McInnes v. Spillane, 282 Mass. 514 , 516; Bamford v. Hathaway, 306 Mass. 160 , 161; Mills v. Blakelin, 307 Mass. 542 , 544), we think that the purpose of the later words "or to the survivor of...