Gagnon v. Pronovost

• Citation: 96 N.H. 154,71 A.2d 747
• Parties: GAGNON v. PRONOVOST et al.
• Decision Date: 06 December 1949
• Court: Supreme Court of New Hampshire

Page 747

71 A.2d 747

96 N.H. 154

GAGNON v. PRONOVOST et al.

Supreme Court of New Hampshire.

Dec. 6, 1949.

On Rehearing March 7, 1950.

Chretien & Craig, Manchester (Alfred J. Chretien, Manchester, orally), for the plaintiff.

Cooper, Hall & Cooper, Rochester (Mr. Burt R. Cooper, Rochester, orally), for the defendants.

LAMPRON, Justice.

This bill in equity to remove a cloud on title presents the question whether a joint tenancy or a tenancy in common was created by the deed. If the former, the plaintiff prevails and the appeal is dismissed; if the latter, the defendants prevail to the extent of an undivided one half interest in common and the appeal is granted. The controlling statute, R.L. c. 259, § 17, provides: 'Tenants in Common. Every conveyance or devise of real estate made to two or more persons shall be construed to create an estate in common and not in joint tenancy, unless it shall be expressed therein that the estate is to be holden by the grantees or devisees as joint tenants, or to them and the survivor of them, or unless other words are used clearly expressing an intention to create a joint tenancy.'

The purpose of the statute was to require that the intention to create a joint tenancy should be clearly expressed. Laws ed. 1830, p. 110; Stilphen v. Stilphen, 65 N.H. 126, 138, 23 A. 79. The use of the phrase 'and to the survivors of them' in the clause of the deed which recites the consideration and names the grantees is too sketchy and speculative to comply with the statutory requirement of a clear expression to create a joint tenancy. In no other clause of the deed are there words which suggest any estate other than a tenancy in common. It is difficult to believe that the quoted phrase can qualify as an expression that the estate is 'to be holden * * * (to the grantees) and the survivor of them.' At most it was an obscure and inaccurate use of the statutory language and consequently insufficient to come within the statute.

While we are not bound by technical common law rules of construction, Therrien v. Therrien, 94 N.H. 66, 46 A.2d 538, 166 A.L.R. 1023, we are not committed to a rule that may discourage the use of accurate and clear expressions in legal instruments. The phrase used in this case and its location in the deed is more indicative of lack of comprehension on the part of the draftsman as to the effect of the words used than it is indicative of an intent and purpose to create a joint tenancy. The deed created a tenancy in common and the order must be

Exceptions sustained.

JOHNSTON, C. J., and KENISON, J., dissented; the others concurred.

KENISON, Justice (dissenting).

The quoted statute as construed in this state is not a legislative expression of hostility to the creation of joint tenancies for 'the purpose of the statute is not to forbid or prevent the creation of estates in joint tenancy, but to make certain that effect is given to the intention of the grantor'. Roaf v. Champlin, 79 N.H. 219, 221, 107 A. 339, 340. If a joint tenancy is intended, it will be so construed even though it is contrary to common law rules of construction. Therrien v. Therrien, 94 N.H. 66, 46 A.2d 538, 166 A.L.R. 1023. 'It has been many years since the technicalities of real estate conveyancing have been much regarded here.' Newmarket Mfg. Co. v. Nottingham, 86 N.H. 321, 324, 168 A. 892, 895.

Upon analysis it appears that the statute provides three ways to create a joint tenancy. The first method is an express statement in the deed that the grantees shall take as joint tenant. The second method calls for express statement of the grantees 'and the survivor of them.' The third method is the use of any other words 'clearly expressing an intention to create a joint tenancy.' The deed in question is not within the first and third methods enumerated above. The question remains whether it is a substantial compliance with the second.

There is considerable authority for the proposition that the use of the word 'survivor' or 'survivors' in deeds and wills is sufficient to negative the statutory presumption of a tenancy in common. 2 Tiffany, Real Property, 3d ed., § 424; Blaine v. Dow, 111 Me. 480, 89 A. 1126; Weber v. Nedin, 210 Wis. 39, 242 N.W. 487, 246 N.W. 307, 686; Armstrong v. Hellwig, 70 S.D. 406, 18 N.W.2d 284; Slater v. Gruger, 165 Ill. 329, 46 N.E. 235; Michael v. Lucos, 152 Md. 512, 137 A. 287. 'There is no substantial difference between deeding or devising land to two persons, and the survivor of them, and deeding or devising land to two persons to be held in joint tenancy.' 4 Thompson, Real Property, Perm. Ed. § 1790. In Massachusetts, which has a statute similar to ours, it appears that words of survivorship in the singular or the plural will create a joint tenancy in the absence of other limiting or qualifying phrases. Stimpson v. Baterman, 5 Cush. 153, 59 Mass. 153; Cross v. Cross, 324 Mass. 186, 85 N.E.2d 325, 328. The recent case of Mulvanity v. Nute, 95 N.H. ----, 68 A.2d 536 is consistent with the cited cases in holding that such words of survivorship are an incident of a joint tenancy.

It may be conceded that the deed in dispute is not a model form to create a joint tenancy and that the notary public who prepared it was not a model draftsman. That is not fatal, however, if it can be fairly said that the intent was expressed in reasonably clear terms. 'If the intent to create a right of survivorship is expressed, it is to be given effect.' Burns v. Nolette, 83 N.H. 489, 496, 144 A. 848, 852, 67 A.L.R. 1051. The defendants argue that there can be no 'survivors' of two grantees and that this is not the singular use of the word provided by the statute. We are content with the construction placed upon the word by the Trial Court as a substantial compliance with the statutes. 'The law has outgrown its primitive stage of formalism when the principal word was the sovereign talisman, and every slip was fatal.' Cardozo, J. Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214. It is a well established rule in this state in considering written instruments and pleadings that their expressed intent will be enforced even though inarticulately worded. Geers v. Geers, 95 N.H. 316, 317, 63 A.2d 244.

Objection is made that the words of survivorship do not appear in other parts of the deed and are therefore ineffective. The relative weight to be given words appearing in different sections of the deed as developed at common law has never been followed in this jurisdiction. The intent of the grantor is to be gathered from all parts of the deed without resorting to presumptions of law in determining their effect. It is finally suggested that the construction placed upon this deed...