Estate of Vadney, Matter of

• Decision Date: 20 May 1993
• Citation: 598 N.Y.S.2d 357,193 A.D.2d 994
• Parties: In the Matter of the ESTATE of Catherine H. VADNEY, Deceased. Peter J. Vadney, Appellant; Paul J. Vadney et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 357

598 N.Y.S.2d 357

193 A.D.2d 994

In the Matter of the ESTATE of Catherine H. VADNEY, Deceased Peter J. Vadney, Appellant Paul J. Vadney et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

May 20, 1993.

Shanley & Shanley (Donald J. Shanley, of counsel), Troy, for appellant.

Stephen J. Waite & Associates (Theresa L. Egan, of counsel), Albany, for respondents.

Before WEISS, P.J., and LEVINE, MERCURE, MAHONEY and CASEY, JJ.

MERCURE, Justice.

Appeal from a decree of the Surrogate's Court of Albany County (Marinelli, S.), entered June 16, 1992, which dismissed petitioner's application to construe a deed.

The facts are largely uncontested. On June 13, 1985, Catherine H. Vadney (hereinafter decedent) executed a deed conveying her property at 17 Bohl Avenue in the City of Albany to herself and her son, petitioner (Peter J. Vadney), without using words of survivorship; the grantees were merely designated as "Catherine Vadney * * * [ ] and Peter J. Vadney [ ]". On the same day, she executed her last will and testament which, inter alia, distributed the residue of her estate to her four children in equal shares. Decedent died on February 28, 1988 and her June 1985 will was admitted to probate. Letters testamentary were issued to petitioner.

Petitioner thereafter commenced a proceeding under SCPA 1420 to, inter alia, construe the deed to the Bohl Avenue property, claiming that decedent intended to create a joint tenancy with him and that the deed should be reformed accordingly. Respondents' answer denied any need to construe the deed and claimed that a tenancy in common had been created. Following discovery and a trial, Surrogate's Court found that the deed created a tenancy in common rather than a joint tenancy, with decedent's share to be distributed according to the residuary clause of her will. Petitioner appeals.

We reverse and grant the petition. "A disposition of property to two or more persons creates in them a tenancy in common, unless expressly declared to be a joint tenancy" (EPTL 6-2.2 [a]. Thus, there is a heavy presumption that the absence of an express declaration that the grantees are joint tenants results in a tenancy in common and not a joint tenancy (see, Overheiser v. Lackey, 207 N.Y. 229, 100 N.E. 738; Matter of Wachs, 50 Misc.2d 565, 568-569, 270 N.Y.S.2d 865), which may be rebutted (see, Matter of Levinsky, 23 A.D.2d 25, 258 N.Y.S.2d 613, lv. denied, 16 N.Y.2d 484, 264 N.Y.S.2d 1026, 211 N.E.2d 654; Belfanc v. Belfanc, 252 App.Div. 453, 456, 300 N.Y.S. 319, aff'd, 278 N.Y. 563, 16 N.E.2d 103; Turano, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 17B, EPTL 6-2.2, at 22), but a correspondingly high order of evidence is required to overcome the presumption (see, Chimart Assocs. v. Paul, 66 N.Y.2d 570, 574, 498 N.Y.S.2d 344, 489 N.E.2d 231; Slutzky v. Gallati, 97 A.D.2d 561, 468 N.Y.S.2d 87, lv. denied, 61 N.Y.2d 602, 472 N.Y.S.2d 1025, 460 N.E.2d 231; Matter of Walker, 277 App.Div. 811, 97 N.Y.S.2d 82).

It clearly and convincingly appears from the record here that decedent intended to create a joint tenancy so that the property would pass to petitioner upon her death....