Hennigh v. Hennigh, 9333

Docket NºNo. 9333
Citation309 P.2d 1022, 131 Mont. 372
Case DateApril 10, 1957
CourtUnited States State Supreme Court of Montana

Page 1022

309 P.2d 1022
131 Mont. 372
George W. HENNIGH and Genevieve Hennigh Atterberry,
Plaintiffs and Appellants,
Marian HENNIGH and Marian Hennigh, as Administratrix of the
Estate of Charles D. Hennigh, deceased, defendant
and Respondent.
No. 9333.
Supreme Court of Montana.
April 10, 1957.
As Amended on Denial of Rehearing May 3, 1957.

Page 1023

[131 Mont. 373] Patrick F. Hooks and Frank T. Hooks, Townsend, for appellants.

Frank T. Hooks, Townsend, argued orally for appellants.

Fred W. Schmitz, Townsend, Toomey & Hughes, Helena, for respondent.

Fred W. Schmitz, Townsend, and Michael J. Hughes, Helena, argued orally for respondent.

HARRISON, Chief Justice.

This is an action to quiet title to two-thirds of one-half of certain real property located in Townsend, Montana.

[131 Mont. 374] Respondent and Charles D. Hennigh were married at Dillon in 1931. They had no children, but by a previous marriage Charles D. Hennigh had two children, the appellants herein.

Respondent and her husband lived at Livingston, Montana, from 1931 to 1944 when they moved to Townsend. In Livingston they had a joint bank account, and there respondent operated a beauty parlor in the same location as her husband operated a barber shop. At Townsend, she and her husband operated the Mint and both of them worked in the business.

On October 18, 1944, with funds from their joint bank account, respondent and her husband purchased the property in question and received the ordinary printed form of warranty deed wherein as grantees they were described as 'Charles D. Hennigh and Marion [sic] E. Hennigh, as Joint Tenants of Townsend, Montana.' In the granting clause was typed the word 'their' so that said clause read 'to their heirs and assigns.' The same situation with regard to the word 'their' appears in the habendum and warranty clauses.

Charles D. Hennigh died intestate on June 27, 1948. Respondent was appointed administratrix of his estate, and as such she filed an inventory and appraisement of his property, but omitted therefrom the property involved in this action as she claimed to own the same as surviving joint tenant of her deceased husband. An application was made in the probate court by the appellants to compel the administratrix to include this real estate in the inventory as a part of the decedent's estate, which application was denied.

On August 10, 1949, appellants commenced this action. The matter was tried before the court, and a judgment of dismissal was entered on June 3, 1953, from which judgment this appeal was taken.

By specifications of error, the appellants contend: (1) that the court did not give sufficient consideration to controlling statutes; (2) and decisions; (3) applied a common-law rule in reaching its decision which has been abrogated; (4) failed to construe all parts of the deed; and (5) improperly admitted [131 Mont. 375] testimony of the respondent concerning the handling of property between respondent and her deceased husband.

Appellants admit that the sole issue in the case is whether the deed of October 18, 1944, created the right of survivorship in respondent.

Section 1 of an Act entitled, 'An Act Concerning Joint Rights and Obligations', approved February 8, 1865 (Bannack Statutes, p. 454), provided:

'If any partition be not made between joint tenants, the property of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or transmissible to execution or administration, and be considered to every intent and purpose in the same view as if such deceased joint tenants had been tenants in common.'

Appellants contend that such Act abolished the right of survivorship in joint tenancy in Montana.

Page 1024

This section of the Territorial Act was carried forward into the Laws of 1871-1872, and the Compiled Statutes of 1877 without change. However, when the Code of 1895 was adopted it was not re-enacted, and for all intents and purposes it was repealed so it then ceased to be the law of Montana.

'When a statute abrogating a rule or principle of the common law is repealed, the common-law principle or rule is ipso facto revived, unless there is something to show a contrary intent on the part of the legislature.' 15 C.J.S., Common Law, § 12, p. 621; Burleigh County v. Rhud, 23 N.D. 362, 136 N.W. 1082; Johnson v. Olson, 92 Kan. 819, 142 P. 256, L.R.A.1915E, 327; State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676; Beals v. Ares, 25 N.M. 459, 185 P. 780.

In the absence then of any statute abrogating it, the common-law incident of the right of survivorship applying to a joint tenancy would again be the law of Montana. However, the Legislature did adopt laws with regard to tenancies in property being section 1104, Code of 1895, now R.C.M.1947, § 67-307; section 1105, Code of 1895, now R.C.M.1947, § 67-308; [131 Mont. 376] section 1106, Code of 1895, now R.C.M.1947, § 67-311; section 1107, Code of 1895, now R.C.M.1947, § 67-312; section 1108, Code of 1895, now R.C.M.1947, § 67-313.

R.C.M.1947, § 67-307, provides:

'The ownership of property by several persons is either:

'1. Of joint interests;

'2. Of partnership interests;

'3. Of interests in common.'

The legislature by this enactement recognized joint interests.

R.C.M.1947, § 67-308, provides:

'A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants.'

Thus the Legislature defined a joint interest to be one owned by several persons in equal shares, by a title created by a single transfer, when expressly declared in the transfer to be a joint tenancy.

R.C.M.1947, § 67-313, further provides:

'Every interest created in favor of several persons in their own right, including husband and wife, is an interest in common, unless acquired by them in partnership, for partnership purposes, or unless declared in its creation to be a joint interest, as provided in section 67-308.'

So, in 1895 the Legislature again recognized the difference between joint interests and interests in common and left parties free to contract in either pattern. None of these enactments abrogated the common-law right of survivorship as incidence of joint tenancy.

In 1943 the Legislature adopted what is now R.C.M.1947, § 67-310, which provided:

'In all conveyances...

To continue reading

Request your trial
11 cases
  • Witzel v. Witzel, 3154
    • United States
    • United States State Supreme Court of Wyoming
    • 29 Octubre 1963
    ...Montana at one time abolished joint tenancies with right of survivorship, the same was later restored, and in Hennigh v. Hennigh, 131 Mont. 372, 309 P.2d 1022, the court there said the use of the words 'joint tenants' created a joint tenancy although the words 'heirs and assigns' were also ......
  • Marans v. Newland, 10251
    • United States
    • Montana United States State Supreme Court of Montana
    • 10 Octubre 1962
    ...or devised to executors or trustees as joint tenants.' This court fully discussed the incidents of joint tenancy in Hennigh v. Hennigh, 131 Mont. 372, 377, 309 P.2d 1022, 1025, and therein we 'After adoption of present sections 67-307 and 67-308, R.C.M.1947, in 1895, all the incidents of jo......
  • Anderson v. Baker, 80-420
    • United States
    • Montana United States State Supreme Court of Montana
    • 24 Marzo 1982
    ...that the effect of that statute is to include all of the incidents of a joint tenancy estate under common law. Hennigh v. Hennigh (1957), 131 Mont. 372, 377, 309 P.2d 1022, The cases reflect two divergent views as to the effect of the ownership interest of a Page 1044 joint tenant. One view......
  • Clark v. Clark, 10617
    • United States
    • Montana United States State Supreme Court of Montana
    • 30 Diciembre 1963
    ...court held that a husband and wife became vested with a joint tenancy under a conveyance to them as 'joint tenants'. Hennigh v. Hennigh, 131 Mont. 372, 309 P.2d 1022 (1957) (see note, 19 Mont.L.Rev. 69, Fall, 1957). The Hennigh case is significant in the present context because the language......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT