Estate of Childress, Matter of, 89-CA-0796

• Decision Date: 18 September 1991
• Docket Number: No. 89-CA-0796,89-CA-0796
• Parties: In the Matter of the ESTATE OF Ester Louie CHILDRESS, Deceased. Dotsy C. NEWTON v. Rodney Wayne LONG.
• Court: Mississippi Supreme Court

Page 192

588 So.2d 192

18 A.L.R.5th 980

In the Matter of the ESTATE OF Ester Louie CHILDRESS, Deceased.

Dotsy C. NEWTON v. Rodney Wayne LONG.

No. 89-CA-0796.

Supreme Court of Mississippi.

Sept. 18, 1991.

J.W. Kellum, Sumner, for appellant.

John W. Whitten, Jr., Breland & Hilburn, Sumner, for appellee.

EN BANC.

DAN M. LEE, Presiding Justice, for the Court:

This is an appeal by Ms. Dotsy C. Newton from the Tallahatchie County Chancery Court, Second Judicial District. In Ms. Newton's capacity as the executrix of the estate of her deceased father, Ester Louie Childress, an uncertainty arose over title to fifty-six acres of land located in Tallahatchie County.

In the Final Account and Petition to Close Estate, Ms. Newton indulged the court's assistance in determining ownership and quieting title to this property. Summonses were issued to several interested persons who might claim any interest in this land. Mr. Rodney Wayne Long, grandson of the decedent, filed an Answer to the Final Account and Petition acknowledging that he had no interest in the estate of Ester Louie Childress, but rather Mr. Long claimed that he owned a one-half interest in the fifty-six acres which should not be considered an asset of the estate. Ms. Newton filed an Answer and Cross Complaint in her individual capacity alleging that she was the sole owner of the entire fifty-six acres.

After a hearing on January 17, 1989, the chancellor entered a Final Decree which adjudged Rodney Wayne Long as the owner of an undivided one-half interest in this property. Being aggrieved by this judgment, Ms. Dotsy C. Newton in her individual capacity has appealed to this Court.

As the facts will reveal, this appeal requires this Court to answer a very specific question which has not been previously addressed in this factually analogous context.

I. DOES MISSISSIPPI REQUIRE A JOINT DEED BY BOTH HUSBAND AND WIFE OWNING PROPERTY AS TENANTS BY THE ENTIRETY IN ORDER TO SEVER THE ESTATE AND CREATE A REMAINDER INTEREST IN A THIRD PERSON; OR, CAN SEPARATE, INDIVIDUAL

DEEDS WHICH WERE EXECUTED, ACKNOWLEDGED AND RECORDED AT THE SAME TIME AND PLACE BE USED TO ACCOMPLISH THIS END?

We hold that separate deeds may be used to sever an estate in the entirety under a narrow range of circumstances whereby both spouses act in concert pursuant to a common purpose and without derogation of the other's right of survivorship. Therefore, we affirm the chancellor's decree adjudging Rodney Wayne Long as the owner of an undivided one-half interest to fifty-six acres of land in Tallahatchie County.

FACTS

Ester Louie and Florene Childress acquired approximately fifty-six acres of land in Tallahatchie County in 1944 as an estate in the entirety ¹ with right of survivorship and not as tenants in common. The Childresses occupied this fifty-six acres as their homestead for a number of years. However, their marriage began to deteriorate, and Ester Louie moved away from the property, which had been their homestead, with no intention to return. ² At some time prior to January 1971, Ester Louie and Florene reached an agreement whereby Florene would sue for divorce, and Ester Louie would relinquish his interest in this property. Furthermore, the couple agreed that Florene would have a life estate in the property, and upon her death, the estate would pass to their grandson, Rodney Wayne Long.

On January 15, 1971, Rodney Wayne Long drove Florene to the law office of Mr. John W. Whitten, Jr., in Sumner, where they met Ester Louie. The purpose of this meeting was to prepare the necessary deeds in order to give effect to the prior agreement that Ester Louie and Florene had reached. The grandson waited in the reception area while Ester Louie and Florene met with the attorney. According to Mr. Whitten's affidavit which is contained in this record, the agreement was that Florene was to have the undisturbed use and occupation of the fifty-six acre tract for her lifetime; and upon her death it was their wish that the entire fifty-six acres would succeed to their grandson, Rodney Wayne Long. Mr. Whitten concluded that the best way to accomplish this was by the execution of two separate warranty deeds.

The first warranty deed contained a conveyance of Ester Louie's interest to his wife for the term of her natural life with a remainder interest to the grandson.

I, ESTER LOUIE CHILDRESS do hereby sell, convey, warrant and deliver unto FLORENCE (sic) WALKER CHILDRESS, my wife, for the term of her natural life, with remainder as hereinafter recited, my undivided interest in and to the following described real property....

* * * * * *

At the death of the said Florence (sic) Walker Childress, my said undivided interest ... shall go to my grandson, Rodney Wayne Long.

This deed was executed on the 15th day of January, 1971, and was recorded on January 25, 1971, at 1:50 p.m. The second I, Florence [sic] Walker Childress, do hereby convey, warrant and deliver unto my grandson, RODNEY WAYNE LONG, subject to the reservation of a life estate as hereinafter recited, my undivided one-half interest in and to the following described real property....

warranty deed was executed and acknowledged at the same time and bears a recordation time of five minutes later on January 25, 1971, at 1:55 p.m. This second deed was a conveyance by Florene Childress as grantor of an undivided one-half interest to Rodney Wayne Long but with a reservation of a life estate in the grantor.

* * * * * *

But reserving unto myself, the said Florence [sic] Walker Childress, a life estate in said property.

On the same day that the deeds were recorded, January 25, 1971, Florene filed her Bill for Divorce against Ester Louie who had since become a Florida resident. Therefore, the ownership arrangement regarding the property was clearly a division of the marital property in anticipation of the impending divorce. Ester Louie entered a waiver of process and did not contest the divorce action, and a divorce was granted approximately four months later on May 11, 1971.

The next key date in this scenario occurred eight years later on April 26, 1979, when the appellee, Rodney Wayne Long, executed a quitclaim deed of one-half of his remainderman interest in the fifty-six acres back to his grandfather.

I, ... Rodney Wayne Long, hereby remise, release and forever quit-claim to Ester Louie Childress one-half of my right, title and interest....

Subsequent to his divorce from Florene in 1971, Ester Louie remarried and died testate on May 27, 1981. Ester Louie named his daughter, Dotsy Clark, appellant, as his executrix. Through a residuary clause in his will, Ester Louie named six devisees, all being his children, who would succeed to any interest that he still owned in this property at his death; Wilma Bledsoe, Hugh Allen Childress, Lacy Biles Childress, Stacy Giles Childress, Dotsy Clark Newton (appellant) and Louie Wesley Childress. Ester Louie's widow relinquished all of her right, title and claim to her deceased husband's estate by a quitclaim deed executed by her in February of 1988, to the six residuary devisees named in her husband's will.

Four years following the death of her ex-husband, Florene Childress quitclaimed all of her right, title and interest in the fifty-six acres to her daughter, Dotsy C. Newton. This deed was executed and recorded on July 30-31, 1985. Although the record is not developed on this fact, the briefs of counsel inform the Court that Florene Childress died in 1987. Upon Florene's death, any remainder interest that Rodney Wayne Long might own became present possessory subject to the rights of possible cotenants from the last will of Ester Louie Childress. Hence, Mr. Long's claim of a one-half interest in this property is in direct conflict with Ms. Newton's claim of complete ownership of the entire fifty-six acre estate.

DISCUSSION

The question raised on this appeal hinges on the validity of the two separate deeds executed by Mr. and Mrs. Childress in 1971, while husband and wife, in an attempt to sever the estate in the entirety. Specifically, the question before us is whether or not both spouses are required to sign as grantors in the same deed in order to sever an estate in the entirety; or can separate deeds by both spouses revealing mutual consent be used as a means to accomplish the same result. As an introduction to this discussion, a brief summary of the positions advanced by both parties is helpful.

Dotsy C. Newton argues that in order for a husband and wife to sever an estate in the entirety, both husband and wife must join in the same deed. This argument is rooted in the common law recognition that in an estate by the entirety, each spouse is seised of the whole or entirety and not a divisible part. 41 Am.Jur.2d Husband & Wife Sec. 55 (1968). Thus, the legal fiction is that there is but one estate held by only one "person"--the marriage itself. Therefore, any conveyance to a third party interest by one spouse alone would fail for the absence of a necessary grantor, recognizing that the grantor must consist of both husband and wife. Since the Childresses executed separate deeds in 1971 to Rodney Wayne Long rather than a joint deed, Dotsy C. Newton contends that the estate in the entirety was never severed and that the execution of separate deeds was a nullity. This left the right of survivorship intact; ³ and when Florene Childress survived Ester Louie, she became possessed of the whole. Consequently, Dotsy C. Newton claims that she is the successor in interest to this property as grantee of a quitclaim deed from her mother in July of 1985.

The appellee, Rodney Wayne Long, has a simple response. He argues that it would be ridiculous and foolish to require Florene Childress to join in a deed to herself in order to sever the entirety. Mr. Long argues that an estate in the entirety can be severed by the consent of both spouses to terminate the relationship just as joint tenancies can be...