218 Mich. 446 | Mich. | 1922
Plaintiff filed this bill to partition certain real estate in Bay City in which she claimed an undivided one-half interest. Flora B. Snyder was made a defendant as well as the tenants occupying the real estate. Flora B. Snyder appeared and denied that plaintiff had any interest in the real estate. A hearing on the merits followed and convinced the chancellor that defendants’ position was the correct one and plaintiff’s bill was dismissed.
The facts out of which the question in controversy
Both parties concede that the deed made the parties joint tenants of the real estate. Plaintiff asserts that Mr. Root, as a joint tenant, had a right to convey his interest to plaintiff. Defendants contend that by reason of the stipulation in the deed that the property should go to the survivor or survivors, he could not alienate his joint interest.
Much time has been devoted by plaintiff to the question whether one joint tenant can alienate his joint interest. If the deed created a simple joint tenancy there is no question but Mr. Root could sever his interest. That question need not be further considered. The real question is, Does the addition of the words “survivor or survivors” change the rule that one joint tenant may sever the tenancy? Defendants rely upon the cases of Schulz v. Brohl, 116 Mich. 603, and Finch v. Haynes, 144 Mich. 352 (115 Am. St. Rep. 447), to sustain their contention that the tenancy cannot be severed.
The chancellor was of the opinion that these cases controlled the present one. In principle there is no distinction. Technically there is this distinction: In the Michigan cases cited the “survivorship” is at
“In this case we have to place a construction upon a clause in a will dated in 1840, shortly after the Wills act came into operation, and evidently drawn by a lawyer. Section 28 of the Wills act enacts ‘that when any real estate shall be devised to any person without any words of limitation such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dis*450 pose of by will in such real estate, unless a contrary intention shall appear by the will.’ Therefore it is said unless a ‘contrary intention appears by the will’ the effect must be to make the seven devisees joint tenants in fee; and in that case the joint tenancy in fee has been severed and put an end to owing to the conveyance of his share by one of the joint tenants. But it is urged on behalf of the plaintiff that when the whole clause is looked at, a ‘contrary intention’ does appear — an intention, that is, to make these persons, not joint tenants in fee, but tenants for life, with a contingent remainder in fee simple to the ultimate survivor; and that this is shewn by the use of the words ‘and to the survivor or longest liver of them, his, or her heirs and assigns forever’; and it was admitted on behalf of the defendants that, if this is not their true construction, these words must be regarded as not only inconsistent with the rest of the clause, but as useless. It is familiar law that effect should, if possible, be given to every word which the testator uses, and the interpretation suggested by the plaintiff does this. It gives effect to all the terms of the settlement, makes none of them nugatory, and places a plain and intelligible meaning on the words of the will. There is, therefore, good prima, facie reason for adopting it.”
We are of the opinion that the conclusion reached by the chancellor is right and should be sustained.
The decree is affirmed.
validity and effect of a deed by one co-tenant purporting to convey a parcel in severalty to a third person, see note in 47 L. R. A. (N. S.) 573.