Mulvanity v. Nute.
| Decision Date | 03 October 1949 |
| Citation | 68 A.2d 536 |
| Parties | MULVANITY v. NUTE. |
| Court | New Hampshire Supreme Court |
James F. Mulvanity, Sr., sued Mary E. C. Nute for partition of realty which had been devised by a testatrix to the plaintiff's grantor and to the defendant as joint tenants with the desire that they should have right and privilege of occupying the premises during their lifetime, and with title to vest in survivor on the decease of one of them.
The trial court, Lampron, J., on an agreed statement of facts reserved and transferred without ruling questions whether deed to plaintiff created in him an undivided one-half interest in fee as tenant in common with the defendant, and whether the defendant became the owner in fee of the other untivided half interest as a tenant in common.
The Supreme Court, Johnston, J., answered the questions in the affirmative.
Petition, for partition of certain real estate situate in the city of Nashua. This had been devised by the following clause of the will of Nora S. Mulvanity of Nashua: Said will was probated February 27, 1945 in the Probate Court for the County of Hillsborough. April 6, 1948 the son James F. Mulvanity deeded to his father James F. Mulvanity, Sr., all his rights, title and interest in the devised premises.
In advance of a hearing on the petition, the Court, Lampron, J., on an agreed statement of facts reserved and transferred without ruling the following questions of law:
John D. Wilcox, Nashua, for plaintiff.
John D. Warren, Nashua, for defendant.
Because of the language used, it is certain that the testamentary clause under consideration did not create an estate in common. R.L. c. 259, § 17.
An estate in joint tenancy in fee with the right or incident of survivorship was established unless the devise should be construed as a gift to the son and the sister as joint tenants for life, with remainder in fee to the survivor. Burns v. Nolette, 83 N.H. 489, 496, 144 A. 848, 67 A.L.R. 1051; 48 C.J.S., Joint Tenancy, § 4, page 929; 33 Am.Jur. 467, 468.
The language of Mrs. Mulvanity's will and the fact that the second and the third attesting witnesses were lawyers indicate that the draftsman was familiar with the meaning of the words ‘Joint Tenants' and other legal terms. Therrien v. Therrien, 94 N.H. 66, 46 A.2d 538, 166 A.L.R. 1023. The formal wording of the devise states that the real estate is given to the son and the sister ‘as Joint Tenants,’ without any limitation for life or any other limitation whatsoever. R.L. c. 259, § 17....
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Baker's Estate, In re
...v. Klajbor, 1950, 406 Ill. 513, 94 N.E.2d 502, 504; Berry v. Berry's Estate, 1949, 168 Kan. 253, 212 P.2d 283, 286; Mulvanity v. Nute, 1949, 95 N.H. 526, 68 A.2d 536, 538; Ball v. Mann, 1948, 88 Cal.App.2d 695, 199 P.2d 706, 708; Hammond v. McArthur, 1947, 30 Cal.2d 512, 183 P.2d 1, 2, 3; K......
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Albro v. Allen
...cannot be affected by a conveyance of the life estate, 48A CJS, Joint Tenancy, Sec. 19, p 352. See also Mulvanity v. Nute, 95 N.H. 526, 527-528, 68 A.2d 536 (1949). In Spurlock v. Commercial Banking Co, 138 Ga.App. 892, 897, 227 S.E.2d 790 (1976), aff'd 238 Ga. 123, 231 S.E.2d 748 (1977), t......
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Gagnon v. Pronovost
...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 con......
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Allaire Estate, In re
...intent is reasonably ascertainable. North Hampton School District v. Hampton Society, 97 N.H. 219, 220, 84 A.2d 833; Mulvanity v. Nute, 95 N.H. 526, 68 A.2d 536. In Gagnon v. Pronovost, 96 N.H. 154, 71 A.2d 747, it was held that a joint tenancy was not created where the only phrase so indic......