G. Kevin Powell v. Estate of Gary Powell
14 N.E.3d 46
Ind. Ct. App.2014Background
- In 1995 Lawrence Powell executed a warranty deed conveying real estate to his sons, G. Kevin Powell and Gary L. Powell, describing them "as tenants by the entireties."
- Gary died in 2013; Kevin survived. The Estate of Gary Powell sued for declaratory relief seeking a declaration that the deed created a tenancy in common.
- Kevin counterclaimed that the deed created a joint tenancy with right of survivorship, so he became sole owner on Gary’s death.
- The trial court granted summary judgment to the Estate, holding the "tenants by the entireties" designation was a nullity (since the grantees were brothers) and that the deed created tenancy in common.
- On appeal, the Indiana Court of Appeals considered whether the deed’s wording manifested an intent to create a survivorship estate such that it qualifies as joint tenancy under Ind. Code § 32-17-2-1(c)(2).
- The court concluded that the phrase "tenants by the entireties" manifests an intent to create a survivorship estate and therefore established a joint tenancy with right of survivorship; it reversed and remanded to enter summary judgment for Kevin.
Issues
| Issue | Plaintiff's Argument (Estate) | Defendant's Argument (Kevin) | Held |
|---|---|---|---|
| Legal effect of a conveyance to two non-spouses labeled "tenants by the entireties" | The phrase is a scrivener’s error; absent express joint-tenancy language the statutory presumption makes the grant tenancy in common | The deed’s wording manifests an intent to create survivorship rights, so it should be treated as a joint tenancy with right of survivorship | Held: The designation "tenants by the entireties" manifests intent to create survivorship; deed created joint tenancy with right of survivorship, not tenancy in common |
Key Cases Cited
- Pennsylvania Bank & Trust Co. v. Thompson, 247 A.2d 771 (Pa. 1968) (phrase "tenants by the entireties" construed to manifest intent to create survivorship)
- Coleman v. Jackson, 286 F.2d 98 (D.C. Cir. 1960) (invalid marital status does not negate the survivorship intent of an "entireties" designation)
- Sams v. McDonald, 160 S.E.2d 594 (Ga. Ct. App. 1968) ("tenants by the entireties" treated as creating joint tenancy with survivorship)
- McManus v. Summers, 430 A.2d 80 (Md. 1981) (use of "tenants by the entirety" signifies intent for right of survivorship)
- Mitchell v. Frederick, 170 A. 733 (Md. 1934) (tenancy by the entirety language equates to declaring a right of survivorship)
- Morris v. McCarty, 32 N.E. 938 (Mass. 1893) (survivorship is the distinguishing incident of joint tenancy/entireties)
- Wood v. Wood, 571 S.W.2d 84 (Ark. 1978) (instrument’s wording created a survivorship estate despite invalid marriage)
- Baker v. Cailor, 186 N.E. 769 (Ind. 1933) (recognizing survivorship as central incident of tenancy by the entirety)
- Rennaker v. Gleason, 913 N.E.2d 723 (Ind. Ct. App. 2009) (deed interpretation aims to effectuate parties’ intent and harmonize deed language)
- Perez v. Gilbert, 586 N.E.2d 921 (Ind. Ct. App. 1992) (overview of concurrent ownership forms: joint tenancy, tenancy in common, tenancy by entirety)