Taylor v. Lowencamp

• Decision Date: 28 March 1929
• Citation: 145 A. 329
• Parties: TAYLOR v. LOWENCAMP.
• Court: New Jersey Court of Chancery

145 A. 329

TAYLOR

v. LOWENCAMP.

Court of Chancery of New Jersey.

March 28, 1929.

(Syllabus by the Court.)

Suit by Edith M. Taylor against Bernard M. Lowencamp. Decree for defendant.

Carrick & Wortendyke, of Jersey City, for complainant.

Frank J. Reardon, of Jersey City, for defendant.

FIELDER, Vice Chancellor. Lands at Mountain Lakes were conveyed to John B. Taylor and Edith M. Taylor (husband and wife) "as joint tenants and not as tenants in common." They subsequently entered into a written contract to convey to the defendant herein, in fee, free from all incumbrances except a mortgage, and before the time arrived for delivering a deed, John B. Taylor died, leaving his wife, the complainant herein, surviving. This suit is brought to compel defendant to accept a deed from complainant pursuant to the contract. The sole dispute between the parties is as to the character of the estate held by complainant and her husband, complainant insisting that they held as tenants by the entirety and defendant contending that the estate was a joint tenancy, it being conceded by the parties that, if the tenancy was by the entirety, the lands were not subject to a transfer inheritance tax on the husband's death, while, if the estate was a joint tenancy such tax should be assessed and paid before complainant can convey title free from incumbrances.

Our statute (2 Comp. Stat. 1910, p. 1538, § 15) which converted estates theretofore held to be joint tenancies into tenancies in common does not affect the common-law estate of tenancy by the entirety. Thomas v. DeBaum, 14 N. J. Eq. 37; McDermott v. French, 15 N. J. Eq. 78. For the complainant it is urged that words in a deed which under the common law would create a joint tenancy between other persons as grantees will, in a deed to husband and wife, create a tenancy by the entirety, and Den ex dem. Hardenbergh v. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371, and Den ex dem. Wyckoff v. Gardner, 20 N. J. Law, 556, 45 Am. Dec. 388 (decided after the passage of the statute), are cited in support of such contention. Those cases hold "that the same words of conveyance which make two other persons joint tenants will make husband and wife tenants of the entirety"; but I think this expression of opinion must not be accepted literally. By the common law, a deed to two or more individuals, in which no words were used to define the estate conveyed, vested in the grantees an estate in joint tenancy, just as distinctly as a deed expressly declaring the intention of the grantor to create such an estate would do it (Boston, etc., Co. v. Condit, 19 N. J. Eq. 394; Den ex dem. Berdan v. Van Riper, 16 N. J. Law, 7; Sentliffer v. Jacobs, 84 N. J. Law, 128, 86 A. 929), and it was to relieve against the hardship, surprise, and unanticipated consequences of the doctrine of survivorship that the statute was enacted (Den v. Hardenbergh, supra). With the common-law rule in mind, I believe that the opinion the learned justice intended to express in Den v. Hardenbergh and Den v. Gardner is merely that a similar form of deed to husband and wife would, at the common law, vest in the grantees an estate in the entirety and not an estate in joint tenancy. The reasoning applied in Den v. Hardenbergh and Den v. Gardner is applicable with equal force to a conveyance to husband and wife as tenants in common, yet it has been held that a husband and wife may, by express words, be made tenants in common by a deed to them during coverture (McDermott v. French, su...