Fekkes v. Hughes
| Decision Date | 08 May 1968 |
| Citation | 354 Mass. 303,237 N.E.2d 19 |
| Parties | Harry FEKKES et al. v. Harold B. HUGHES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
David B. Cole, Hyannis, for respondent.
Robert J. Donahue, Hyannis, for petitioners.
Before WILKINS, C.J., and WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ. WHITTEMORE, Justice.
Two married couples, the older the parents of the wife of the younger man, hold about fifty-eight acres of land with a dwelling house thereon in Sandwich, under a deed describing the owners and the tenancy as follows: 'Harold B. Hughes and Dorothy Ann Hughes, husband and wife, and Harry Fekkes and Dorothy D. Fekkes, husband and wife, all as joint tenants.'
After marital discord had developed between the Hughes (the younger couple), the Fekkes and Mrs. Hughes filed in the Probate Court a petition for partition of the property. The judge found that the estate could not be advantageously divided and decreed partition into four equal shares. He appointed a commissioner with authority to sell for not less than $35,000, ordered him to pay from the proceeds an outstanding mortgage (about $17,000 in amount) and to divide the net proceeds. Hughes appealed.
The judge was right in ruling (as the decree for division necessarily does) that a joint tenancy was created and not, as Hughes contends, two tenancies by the entirety. It is well established that a conveyance to husband and wife as joint tenants will create a tenancy by the entirety unless the contrary intent appears on the face of the instrument. Maddams v. Maddams, 352 Mass. 32, 223 N.E.2d 519. But here the circumstance of the four grantees and the use of the word 'all' expressed an intent that the joint tenancy should exist without qualification between all of the grantees and overcame any ambiguity that might otherwise have existed. Thus after the death of any one owner all of the survivors would own the entire interest in the property in equal shares. But if each couple held their joint interests by the entirety there would be two estates each primarily in the husband (Bernatavicius v. Bernatavicius, 259 Mass. 486, 487, 156 N.E. 685, 52 A.L.R. 886; Pineo v. White, 320 Mass. 487, 490, 70 N.E.2d 294) and, as to each estate, on the death of either spouse the surviving spouse would be the sole owner.
The issue did not arise in Fulton v. Katsowney, 342 Mass. 503, 174 N.E.2d 366. There we held that a deed to X, being unmarried and to Y and Z, husband and wife, 'as joint tenants and not as tenants in...
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