Taylor v. Taylor

• Decision Date: 20 February 1945
• Docket Number: No. 40.,40.
• Citation: 17 N.W.2d 745,310 Mich. 541
• Parties: TAYLOR v. TAYLOR.
• Court: Michigan Supreme Court

310 Mich. 541

17 N.W.2d 745

TAYLOR

v.TAYLOR.

No. 40.

Supreme Court of Michigan.

Feb. 20, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Dickinson County, in Chancery; Frank A. Bell, Judge.

Suit by Belle Taylor against Johannes E. Taylor to construe a deed and to confirm plaintiff's right to a one-fourth interest in certain real property wherein defendant filed a cross-bill. From a decree for plaintiff, defendant appeals.

Affirmed.

Before the Entire Bench.

Symonds & Rahm, of Iron Mountain, for defendant and appellant.

Ernest W. Brown, of Iron Mountain, for plaintiff and appellee.

BOYLES, Justice.

This is a bill of complaint to construe a deed and to confirm plaintiff's right in a one-fourth interest in certain real property. Defendant by cross bill seeks to have the deed construed so as to exclude plaintiff from such interest and to confirm his right to the entire property, as the survivor in a joint tenancy. The sole question for decision is whether a certain deed creates a tenancy in common, or a joint tenancy with the right of survivorship.

Esther M. Taylor, a widow, residing in Milwaukee, Wisconsin, was the owner in fee simple of certain real estate in Iron Mountain, Diskinson county, Michigan. On June 20, 1938 she executed and delivered, in Milwaukee, a warranty deed conveying this real estate to her two sons Gilbert M. Taylor and Johannes E. Taylor. Gilbert M. Taylor died in 1943 intestate and without issue, leaving surviving him as his heirs-at-law his widow Belle Taylor, the plaintiff herein, and Johannes E. Taylor, his brother, the defendant herein. Under the law of descent of real property plaintiff and defendant inherited his real property equally, subject to the rights of creditors. Accordingly, if Gilbert M. Taylor died seized of an undivided half interest in the real property in question as tenant in common, the plaintiff herein is the owner of an undivided one-fourth interest therein, and the defendant the owner of the remaining three fourths. The circuit judge held that the deed in question created a tenancy in common, and decreed that plaintiff held title to an undivided one-fourth interest in the property. Defendant appeals.

The opening paragraph of the deed in question reads as follows:

‘This Indenture made this 20th day of June, A.D. 1938, between Esther M. Taylor, a widow, party of the first part, and Gilbert M. Taylor and Johannes E. Taylor, jointly, parties of the second part.’

The granting clause states that the party of the first part ‘by these presents does give, grant, bargain, sell, remise, release, alien, convey and confirm unto the said parties of the second part, their heirs and assigns forever,’ the certain real property described therein.

The habendum clause of the deed is as follows:

‘To have and to hold the said premises as above described with the hereditaments and appurtenances, unto the said parties of the second part and to their heirs and assigns, forever.’

The warranty and possession covenant describes the parties the same as above.

The circuit judge, over objection by the defendant, admitted testimony of the circumstances surrounding the preparation and execution of the deed, to show the intent of the grantor. The defendant claims that the language of the deed is plain and unambiguous, and that this testimony was inadmissible. The only basis for this claim, in the deed itself, rests in the fact that the first or introductory paragraph of the deed recites that it is made between Esther M. Taylor as party of the first part and ‘Gilbert M. Taylor and Johannes E. Taylor, jointly,’ as parties of the second part. However, the granting clause does not purport to convey the property to the parties of the second part ‘jointly,’ nor does the habendum clause provide that they are to have and to hold the said premises ‘jointly.’ The granting and habendum clauses are consistent with plaintiff's theory that Gilbert and Johannes Taylor took the property as tenants in common.

‘Where there is a doubt as to the meaning of an instrument, the courts will consider the situation of the parties, the subject-matter, and the acts, conduct, and dealings of the parties with respect to the instrument.’ Negaunee Iron Co. v. Iron Cliffs Co. (syllabus), 134 Mich. 264, 96 N.W. 468.

‘Where a conveyance or deed to two or more persons does not state the interest of each, their estates are presumed to be equal: but the presumption may be rebutted by proof.’ Hill v. Reiner (syllabus), 167 Mich. 400, 132 N.W. 1031.

‘The general rule is that courts will follow the plain language in a deed in which there is no ambiguity. If, however, there is an ambiguity, or if the deeds fail to express the obvious intention of the parties, the courts will try to arrive at the intention of the parties and in accordance therewith grant or deny the relief asked Farabaugh v. Rhode, 305 Mich. 234, 240, 9 N.W.2d 562, 565.

The uncertainty is created by the use of the word ‘jointly’ after the grantees' names in the introductory paragraph. Nowhere in the deed do the words ‘joint tenants,’ ‘survivor,’ or ‘tenants in common’ occur. Due to the use of the word ‘jointly’ in the first paragraph, defendant would have the court read ‘jointly’ or ‘as joint tenants' into the granting and habendum clauses. If such was the intent of the grantor it is not apparent in the instrument itself. The testimony as to the intent of the grantor and the circumstances surroundingthe giving of the deed was properly admitted.

The defendant is not much aided by this testimony as to the circumstances under which the deed was given. Esther M. Taylor had also executed a will on the same day the deed was given, although the will has not been probated, the decedent having left no property which would pass under the will. The Milwaukee attorney who prepared the will and deed was sworn and testified. He was a worker in a defense plant who practiced part-time law. He had several times discussed with Mrs. Taylor her wishes with reference to the disposition of her property. He testified:

‘Q. What were her instructions with reference to her wishes? A. To make out papers for her, a will and any other papers to leave the property to Joe, Gilbert and Belle, to see that they were all taken care of. * * * After June 20, 1938, I had further talks with Esther Taylor with reference to those two instruments which she had executed. That was in the latter part of June, and in the latter part of August, 1938.

‘Q. And what was the nature of those conversations? A. Whether or not I made papers to protect Belle, Joe and Gilbert.

‘Q. Did she mention Belle's name to you in talking to you about preparing these papers? A. Yes, she did.

‘Q. And it was her wish, was it, that Belle be taken care of? A. That was her words, that they all be taken care of.’

Belle, who was to ‘be taken care of,’ is the plaintiff Belle Taylor, who was Gilbert Taylor's wife. The evidence is conclusive that Esther M. Taylor and her daughterin-law Belle were very friendly toward each other and there is nothing in the record to indicate that Esther M. Taylor had any reason to exclude Belle from a right to participate in her husband Gilbert's property. The will did not devise any real property to Gilbert M. Taylor and Johannes E. Taylor as joint tenants. It purports to devise and bequeath the testatrix' property, real and personal, to them by name, ‘to have and to hold unto them or their survivors absolutely share and share alike.’ Defendant construes ‘unto them or their survivors' to mean ‘unto them or their survivor’; but this construction would exclude Belle from participation, contrary to the apparent intention of Mrs. Taylor, shown by the instructions she had given the scrivener. It is plain that the scrivener used the term ‘their survivors' in the will in the same sense that ‘their heirs and assigns' was used in the deed. This conclusion is strengthened by testimony that the will was to be prepared the same as the deed. Some significance must also be attached to the use of ‘share and share alike’ in the will. This more aptly describes the interests of tenants in common, rather than that of joint tenants with the incident of survivorship. There is also a significant variation between that part of the will devising the real property to the two sons of the testatrix ‘to have and to hold unto them or their survivors absolutely share and share alike’ and the final paragraph in the will appointing ‘Gilbert M. Taylor and Johannes E. Taylor and or to the survivor of either’ as executors. The will was read to the testatrix before she signed it, and it is a fair inference that this variation was not unknown to or unnoticed by her, but that the words ‘to the survivor of either’ were intentionally omitted from other parts of the will and the deed.

A nephew of the grantor, an Illinois attorney, testified that his aunt had previously asked him to take care of the deeding of her property and that she said:

‘I want to have the property go to them or given to them so that whoever remains living the longest of the two boys will remain with the property.’

There is no direct testimony that Mrs. Taylor subsequently changed her mind, but the record does plainly show that such was not the instruction she later gave the scrivener who prepared the deed.

Defendant insists that if testimony as to circumstances and the intent of the grantor is held to be admissible, the intent of the grantor must be judged by Wisconsin law, inasmuch as all the parties were residents of Wisconsin, the deed was prepared by a Wisconsin attorney and executed in that state. Under our decisions, in a suit which relates to land only, a conveyance of real estate depends on the law of the state where it is situated. Duffy v. White, 115 Mich. 264, 73 N.W. 363;Stack v. Detour Lumber & Cedar Co., 151 Mich. 21, 114 N.W. 876, 16 L.R.A.,N.S., 616, 14 Ann.Cas. 112;George Realty Co. v. Gulf Refining Co., 275 Mich. 442, 266 N.W. 411. But in ascertaining the intent...