135 A.3d 311
Del. Ch.2016Background
- David and Russell Banks co-owned 15 Sussex County parcels; deeds conveyed each parcel to them "as joint tenants with right of survivorship."
- Russell died testate in 2012; David petitioned to quiet title claiming full ownership by survivorship.
- Respondent Mackie H. Banks, executrix for Russell's estate, filed inventories asserting the estate holds a 50% interest, claiming the deeds created tenancies in common under 25 Del. C. § 701.
- Parties cross-moved for judgment on the pleadings; the sole dispute is the legal effect of the deed language under § 701.
- § 701 requires estates in joint tenancy to be "expressly granted... to be held as joint tenants and not as tenants in common;" the question is whether explicit negative wording is required.
Issues
| Issue | Plaintiff's Argument (Banks) | Defendant's Argument (Mackie/Executrix) | Held |
|---|---|---|---|
| Does the phrase "joint tenants with right of survivorship" satisfy 25 Del. C. § 701? | The phrase unambiguously creates a joint tenancy WROS; negative language is unnecessary because survivorship is incompatible with tenancy in common. | § 701 requires both positive language and an explicit negation ("not as tenants in common"); omitting it fails the statute. | The court held the phrase is sufficient; deeds created joint tenancies WROS. |
| If statutory language is deficient, how should the deed be construed? | At minimum, interpretable as life estates with contingent remainder to survivor, so the estate gets nothing now. | The deed fails to meet § 701, so the estate retains a 50% interest as tenant in common. | Court rejected construing to avoid WROS by imposing life estates; instead enforced the clear survivorship intent. |
| Is Delaware precedent requiring exact statutory wording? | Not argued as separate point—Banks contends common usage suffices. | Relies on cases and textualist reading to urge strict requirement. | Court found no Delaware authority mandating the exact statutory phrasing; clear intent controls. |
| Are attorneys' fees recoverable? | Seeks fees from the estate. | Opposes fee-shifting; acted in good faith. | Fees were denied; each party bears its own costs (no bad faith). |
Key Cases Cited
- Short v. Milby, 64 A.2d 36 (Del. Ch. 1949) (states that statutory wording is safest but not absolutely essential if intent is clear)
- Bullen v. Davies, 209 A.2d 81 (Del. 1965) (tracks § 701 in holding that creation of joint tenancy requires express words)
- Townsend Corp. of America v. Davidson, 181 A.2d 219 (Del. Ch. 1962) (discusses negative language under statute in dictum; not directly on point)
- Slater v. Gruger, 46 N.E. 235 (Ill. 1897) (holds similar statute does not demand particular phraseology where instrument clearly manifests survivorship)
- In re Ellingsworth, 266 A.2d 890 (Del. Ch. 1970) (explains straw-man conveyance as a method to sever joint tenancy)