Hennigh v. Hennigh
| Decision Date | 10 April 1957 |
| Docket Number | No. 9333,9333 |
| Citation | 309 P.2d 1022,131 Mont. 372 |
| Parties | George W. HENNIGH and Genevieve Hennigh Atterberry, Plaintiffs and Appellants, v. Marian HENNIGH and Marian Hennigh, as Administratrix of the Estate of Charles D. Hennigh, deceased, defendant and Respondent. |
| Court | Montana Supreme Court |
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.
This is an action to quiet title to two-thirds of one-half of certain real property located in Townsend, Montana.
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 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.
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; 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:
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 of real property made in joint tenancy or to tenants in estates by entirety, where the right of survivorship is contained in the grant of such conveyance, the right of survivorship is hereby expressly declared to exist by virtue of such grant.'
Such was the status of our laws at the time of the execution of the deed in question herein.
The legal effect of this enactment was to provide that the right of survivorship exists in those classes of conveyances covered by it, whether made to joint tenants or to tenants in estates by entirety, but does not purport to exclude the right of survivorship in other types of conveyances.
Appellant contends that the opinions of this court in Butte & Boston Consol. Mining Co. v. Montana Ore Purchasing Co., 25 Mont. 41, 63 P. 825, and Ayotte v. Nadeau, 32 Mont. 498, 81 P. 145, hold that the right of survivorship as an incident to joint tenancy was taken away by the Act of February 8, 1865, supra, and has never been restored. With this contention we do not agree.
After adoption of present sections 67-307 and 67-308, R.C.M.1947, in 1895, all the incidents of joint tenancy that existed under the common law unless in derogation of these enactments would come into force. These incidents at common law were a single estate in property, real or personal, owned by two or more persons, under one instrument or act of the parties, an equal right in all to share in the enjoyment during their lives, and on the death of a joint tenant, the property descends to the survivor or survivors and at length to the last survivor.
In the Butte & Boston Consol. Mining Co. case, 25 Mont. at page 70, 63 P. at page 827, supra, this court recognized the right of survivorship as an essential incident of joint tenancy when it said:
All that this case does is to hold that section 1 of the 1865 Act converted joint tenancies, while it was in effect, into tenancies in common because it removed the right of survivorship. It further held as to section 2 of the 1865 Act, before its amendment in 1899 (now R.C.M.1947, § 93-2829), that it gave tenants in common and joint tenants certain rights and remedies which did not exist at common law. The case of Ayotte v. Nadeau, supra, merely reiterated what had been said in the Butte & Boston Consol. Mining Co. case with regard to section 2 of the 1865 Act.
What we have said have disposes of specifications of error Nos. 1, 2 and 4.
Considering now the third specification of error, that the court failed to construe all parts of the deed. Herein appellants contend that a proper construction of the deed does not show the creation of, or of any intention to create by the deed, a right of survivorship in the survivor. In support of this they call attention to the use of the words 'Joint Tenants' in the caption, and the use of the word 'their' in the granting, habendum and warranty clauses so that they read 'their heirs and assigns'.
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Witzel v. Witzel
...although 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' w......
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...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 joint......
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Anderson v. Baker
...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, 1025. The cases reflect two divergent views as to the effect of the ownership interest of a joint tenant. One view hol......
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