Hughes v. Fairfield Lumber & Supply Co.

• Decision Date: 23 May 1956
• Court: Connecticut Supreme Court
• Parties: Jeanette H. B. HUGHES et al. v. The FAIRFIELD LUMBER and SUPPLY COMPANY et al. Supreme Court of Errors of Connecticut

Page 195

123 A.2d 195

143 Conn. 427

Jeanette H. B. HUGHES et al. v. The FAIRFIELD LUMBER and SUPPLY COMPANY et al.

Supreme Court of Errors of Connecticut.

May 23, 1956.

David R. Lessler, Bridgeport, with whom was Robert N. Hunziker, Bridgeport, for appellant (defendant Ruth M. Clark).

Philip Y. Reinhart, Fairfield, for appellant (named defendant).

John Keogh, Jr., So. Norwalk, with whom, on the brief, was John J. Relihan, Bridgeport, for appellees (plaintiffs).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

O'SULLIVAN, Associate Justice.

The plaintiffs instituted this action against seven defendants to obtain a judgment declaring that the named plaintiff is the owner of certain realty free and clear of attachments standing of record against the right, title and interest which, the defendants claim, the estate of Harry B. Hughes has in the property. The plaintiffs also sought equitable relief. The court, although denying the latter, rendered a declaratory judgment in the plaintiffs' favor and two of the seven defendants have appealed.

The finding, which is not subject to any correction of advantage to the defendants relates the following facts: On October 16, 1943, William B. Bradley conveyed by warranty deed a parcel of realty in Westport to Harry B. Hughes and Jeanette B. Hughes, husband and wife, 'and to the survivor of them and to the heirs and assigns of such survivor.' Hughes died on November 19, 1952. His widow is the executrix under his will. In the case at bar she appears as plaintiff both in that capacity and individually. The defendants are creditors of the deceased. Before his death they attached his interest in the realty. None of their claims are based on services rendered or materials delivered to the attached realty. No creditor had obtained judgment against Hughes before he died. On December 23, 1952, the Probate Court for the district of Westport, which has jurisdiction over his estate, declared it insolvent. ¹

The first question presented by this appeal is whether the attachment of the interest of a grantee in realty which has been conveyed to him and his wife 'and to the survivor of them and to the heirs and assigns of such survivor' is extinguished by his death, or, to express the problem in a different way, whether the surviving wife, upon the death of her husband, acquires the entire fee in the realty free and clear of the lien of an attachment placed, before the husband died, upon his interest under a deed conveying the realty to him and his wife 'and to the survivor of them and to the heirs and assigns of such survivor.'

In recent years the legal profession has made increasing use of the species of deed employed in the case at bar and commonly called a survivorship deed. Lyman, 'Survivorship Deeds,' 38 Yale L.J. 605. So extensive had their use become by 1937 that the real estate committee on uniform practice of the State Bar Association drafted a form for such a deed and incorporated it in the various uniform standards subsequently adopted by the association on October 15 of that year. 12 Conn.B.J. 113. Since then, the adopted form has been generally utilized in this state whenever realty is placed in the name of husband and wife. This type of deed creates an estate suigeneris. It sets up in each grantee an interest in the land, provides for the termination of the interest of the grantee first dying, and, upon his or her death, vests the entire fee in the survivor. The effect of the deed is not unlike one which creates a life estate in each grantee with remainder over contingent upon survivorship. No vital end is to be served, therefore, by giving a label to Hughes' interest, such as, for example, that of joint tenancy with an express right of survivorship annexed, or of a tenancy in common with a similar annexed right. For the purposes of this case, it is unnecessary to go further than to hold that, upon the death of Hughes, his interest in the realty ceased to exist. Whatever interest he had, when alive, was extinguished by his death, for such was the inevitable result of the provision for survivorship. See Zeigler v. Bonnell, 52 Cal.App.2d 217, 219, 126 P.2d 118; Spikings v. Ellis, 290 Ill.App. 585, 593, 8 N.E.2d 962; Eder v. Rothamel, 202 Md. 189, 195, 95 A.2d 860; Musa v. Segelke & Kohlhaus Co., 224 Wis. 432, 436, 272 N.W. 657, 111 A.L.R. 168; Power v. Grace, [1932] Ont. 357, 358, 2 D.L.R. 793. It follows, from what we have said, that any lien against the interest of Hughes arising from attachment lost, upon his death, whatever value it may previously have had.

But, it is urged, survivorship has been repudiated in this state. That is correct, but only to the extent of repudiating it as a necessary incident of a joint tenancy. Alsop v. Russell, 38 Conn. 99, 102; Phelps v. Jepson, 1 Root 48, 49. We have never held that a grantor may not make express provision for survivorship, whatever may be the estate to which he wishes to attach it. On the contrary, we have frequently approved the right of a grantor to annex the provision to a joint tenancy. State Bank & Trust Co. v. Nolan, 103 Conn. 308, 317, 130 A. 483; Mahoney v. Mahoney, 98 Conn. 525, 531, 120 A. 342; White v. Smith, 87 Conn. 663, 676, 89 A. 272, L.R.A.1917D, 596; Allen v. Almy, 87 Conn. 517, 524, 89 A. 205. When the grantor has properly expressed himself, we have always recognized the right of survivorship, not as an incident of the estate created, but solely by virtue of the conveyance. Houghton v. Brantingham, 86 Conn. 630, 636, 86 A. 664; see Hartford-Connecticut Trust Co. v. Gowdy, 141 Conn. 546, 551, 107 A.2d 409.

Nor do §§ 7095 and 7096 of the General Statutes ² preclude the conclusion to...