Squire's Will, In re
| Decision Date | 15 July 1955 |
| Citation | 208 Misc. 856,142 N.Y.S.2d 925 |
| Parties | In re SQUIRE'S WILL. Application of Addie L. Downs for a Determination as to the Validity, Construction or Effect of the Disposition of Property contained in the Last Will and Testament of Edwin Squires, Deceased. Surrogate's Court, Suffolk County |
| Court | New York Surrogate Court |
George W. Percy, Southampton, for petitioner Addie L. Downs.
Syrena H. Stackpole, Riverhead, for residuary legatees under Will of Frank Downs, Deceased.
HAZLETON, Surrogate.
The executrix under this will brings this proceeding to determine the effect of the provisions of paragraph 'Third' of the will in so far as they relate to the title of the real property therein set forth. Said paragraph reads:
'Third: I give and bequeathe all of my real estate consisting of my farm at Wickapogue near the Village of Southampton, to my daughter Addie L. Downs and her husband Frank Downs equally share and share alike, Subject however to the provisions named in the first part of paragraph Two above set forth, and also to the payment of my just debts and funeral expenses, and also upon condition that should the said Frank Downs die before his wife, the said Addie L. Downs, then in that event his share of said real estate is to go to his wife the said Addie L. Downs & her heirs forever.'
The reference to paragraph 'Two' of this will pertained to certain life benefits provided for Jemima J. Squires, widow of the testator, who survived him but died in 1922, thus terminating the life interest. Frank Downs died in February, 1955, and his demise brought to the fore the question here presented, which deals with the nature of the title acquired by Addie L. Downs and by her husband, Frank Downs, by virtue of the language employed in the above quoted paragraph. Did they become tenants by the entirety in the property devised, by reason of their relationship as husband and wife, or was their ownership that of tenants in common?
The law is clear that in the absence of a contrary expression of intent, a grant or devise of real property made to a husband and wife vests in them a tenancy by the entirety. However, in this case it appears that a contrary intent exists. The use by the testator of the words 'equally share and share alike', standing alone, might be deemed insufficient to remove this devise from the application of the general rule. But when these words are coupled with the express condition that the prior death of Frank Downs shall vest his share in Addie Downs,...
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Buttonow, In re
...as husband and wife, there is a strong presumption that the conveyance of land creates a tenancy by the entirety. (Matter of Squire's Will, 208 Misc. 856, 142 N.Y.S.2d 925.) The operation of these two principles indicates that as to that part of the grant which contains a gift to the daught......
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