The following is a Maine case:
PALMER v. FLINT, ET AL., 156 Me. 103 (1960)
161 A.2d 837
ROXA B. PALMER vs. ALICE E. FLINT AND FEDERAL LAND BANK OF SPRINGFIELD
Supreme Judicial Court of Maine.
Opinion, May 19, 1960.
Joint Tenancies. Tenancies in Common. Vested and Contingent
Remainders. Life Estates.
Under statutes favoring the creation of tenancies in common but
not abolishing joint tenancies, it is generally held that any
language clearly indicating an intention to create a joint
tenancy will be sufficient regardless of where it appears in
In this state any joint interest in either real or personal
property is not recognized, except that of co-partner, tenants
in common, and joint tenants.
The use of the word "heirs" in the phrase "and the heirs of the
survivor forever" does not, without more, preclude a severance
of the property and thus create a life estate in the grantees
with a contingent fee in the survivor.
If the intention of the parties to create a joint tenancy,
clearly expressed in the deed, is in conflict with technical
rules of construction, then the intent take precedence.
This is a petition for declaratory judgment. The case is before
the Law Court upon appeal from a decree of a single justice.
Appeal allowed. Bill of Complaint sustained. Case remanded to
sitting justice for entry of decree in accordance with this
Donald S. Smith, for plaintiff.
Festus B. McDonough, for defendant, Alice E. Flint Philip G.
Willard, for Federal Land Bank of Springfield
SITTING: WILLIAMSON, C.J., WEBBER, TAPLEY, DUBORD, SIDDALL, JJ.
SULLIVAN, J., did not sit.
This is a petition for a declaratory judgment to determine the
right or status of the parties hereto in certain real estate
located in Yarmouth, Cumberland County, Maine. On August 1, 1940,
the Federal Land Bank of Springfield, one of the defendants,
conveyed this real estate to Nathan H. Palmer and his wife, Alice
E. Palmer (now Alice E. Flint), the other defendant. The granting
and habendum clauses in this deed, with the exception of
immaterial punctuation, both read as follows: "Unto the said
Nathan H. Palmer and Alice E. Palmer as joint tenants, and not as
tenants in common, to them and their assigns and to the survivor,
and the heirs and assigns of the survivor forever." The deed
contained a covenant of warranty, that the grantor, its
successors or assigns "shall and will warrant and defend the same
to the said grantees, their heirs and assigns forever." Alice E.
Palmer obtained a decree of divorce from Nathan H. Palmer on
September 27, 1951, and by quitclaim deed without covenant dated
September 29, 1951, she conveyed the premises to Nathan H.
Palmer. Nathan H. Palmer conveyed the property to Frank L. Palmer
who reconveyed to Nathan and his sister, Roxa B. Palmer, the
plaintiff herein, "as joint tenants and not as tenants in common,
to them and their heirs and assigns, and to the survivor of them,
and to the heirs and assigns of such survivor forever." Nathan H.
Palmer died on May 21, 1957. The plaintiff asked that the court
determine, (1) the rights or status of the parties in and to said
premises, (2) that if it should appear that said deed from the
Federal Land Bank of Springfield did not convey an estate of the
true character which the grantor intended to convey and the
grantees intended to receive, that the deed be reformed in
accordance with the true intention of the parties.
The single justice hearing the case found and decreed that the
parties in said deed did not purpose to grant or receive any form
of conveyance other than that utilized by them; that the
quitclaim deed of Alice E. Palmer to her former husband Nathan H.
Palmer was inoperative to convey her contingent remainder; that
the state of the title in the premises is an estate for the life
of Alice E. Flint in Roxa B. Palmer, remainder in fee to Alice E.
The real controversy in this case is between the plaintiff Roxa
B. Palmer and the defendant Alice E. Flint. We summarize the
contentions of these parties although the conclusions reached by
us make a discussion of all of them unnecessary.
The plaintiff contends:
(1) That the deed from the Federal Land Bank of Springfield
created in the grantees an estate in joint tenancy in fee
simple with all the common law incidents thereto.
(2) That it was the intention of the parties that the Federal
Land Bank of Springfield should create in them an estate
in joint tenancy in fee simple with all the common law
(3) In the event that it should be determined that the deed
created a joint life estate in the grantees with the
remainder over to the survivors, then such remainder is
vested and not contingent.
(4) That the deed from Alice E. Palmer to Nathan H. Palmer was
intended to convey and did convey all of her interest in
the premises in the remainder or otherwise and that Nathan
H. Palmer was thereby seized in fee simple of the entire
interest in said premises so that upon his death Alice E.
Flint acquired no interest therein.
The defendant contends:
(1) That the sitting justice was correct in his findings that
the parties to the deed did not purpose to grant or
receive any form of conveyance other than that utilized by
(2) That the conveyance from the Federal Land Bank of
Springfield conveyed a joint life estate to the grantees
with a contingent remainder in fee to the survivor.
(3) That the quitclaim deed of Alice E. Palmer to her former
husband was inoperative to convey to him her contingent
There is no doubt that the entire fee in the property was
conveyed by the Land Bank of Springfield. The necessary words of
inheritance for that purpose were used. The problem before us is
the determination of the respective estates of the grantees in
the fee conveyed.
Under the common law of England, joint estates were favored.
Conveyances to two or more persons were construed to create a
joint tenancy unless a contrary intent was apparent from the
wording of the instrument. With the substantial abolishment of
tenures, however, joint tenancies became disfavored, and as a
result statutes have been enacted in practically all of our
states, either abolishing or changing the common law rule. Our
state as early as 1821 enacted legislation modifying this rule.
The statute relating to conveyances to two or more persons, in
effect on the date of the deed in question, August 1, 1940, reads
"Conveyances to two or more. R.S., c. 78, Sec. 13.
Conveyances not in mortgage, and devises of land to two or
more persons, create estates in common, unless otherwise
expressed. Estates vested in survivors upon the principle of
joint tenancy shall be so held." R.S., 1930, Chap. 87, Sec.
This provision is now found in R.S., 1954, Chap. 168, Sec. 13.
We note that the 96th Legislature in 1953 (P.L., 1953, Chap.
301, now R.S., 1954, Chap. 168, Sec. 13) amended this statutory
provision by adding thereto the following:
"A conveyance of real property by the owner thereof to
himself and another or others as joint tenants or with the
right of survivorship, or which otherwise indicates by
appropriate language the intent to create a joint tenancy
between himself and such other or others by such conveyance,
shall create an estate in joint tenancy in the property so
conveyed between all of the grantees, including the grantor.
Estates in joint tenancy so created shall have and possess
all of the attributes and incidents of estates in joint
tenancy created or existing at common law and the rights and
liabilities of the tenants in estates in joint tenancy so
created shall be the same as in estates in joint tenancy
created or existing at common law."
Joint tenancies have been entirely abolished by legislative
action in some states, and courts in these states have at times
been obliged to set up an estate of a different character in
order to effectuate the intent of the parties to a deed to create
an estate in survivors. In many cases the right of survivorship
as a necessary element of a joint tenancy has been discussed
without reference to the principle of severance which seems of
primary importance in the instant case. In some cases the word
"survivor," without the use of the words "as joint tenants and
not as tenants in common," as used in this case, has been the
only indication of an intention to create a joint tenancy. In
some jurisdictions estates by the entireties are recognized.
Statutes modifying the common law differ in essential details in
respect to the creation of joint tenancies and in respect to the
necessity of the use of words of inheritance to create a fee. For
these reasons an extensive review of the decisions in other
jurisdictions is of little benefit. In the construction of the
terms of the deed in the instant case we are concerned
with factors, hereafter discussed, which appear to be peculiar to
our own problem.
We note, however, some of the divergent views taken by the
courts in the construction of deeds involving the issue of joint
In some jurisdictions a conveyance to two persons and the
survivor of them, in the absence of words of inheritance applying
to both grantees, or other circumstances indicating an intention
to create a fee simple in each, has been construed to create a
cotenancy in the grantees for their lives, with a contingent
remainder in the survivor. Tiffany on Real Estate, Sec. 191 (2nd
Ed.); 1 Washburn on Real Property, Sec. 866 (6th Ed). See also
Rowerdink v. Carothers, 334 Mich. 454, 54 N.W.2d 715,
containing a review of Michigan cases, among them the case of
Jones v. Snyder, 218 Mich. 446, 188 N.W. 505, in which the court
held that a deed to four persons "as joint tenants, and to their
heirs and assigns, and to the survivors or survivor of them, and
to the heirs and assigns of the survivor of them, forever"
created a joint tenancy for life in the grantees, with a
contingent remainder in fee simple to the survivor; Ewing's
Heirs v. Savany, 3 Bibb (Ky.) 235; Finch v. Haynes, 107 N.W. 910,
Many jurisdictions hold that where the language of a deed
evidences an intention to create a right of survivorship, the
deed will be given that effect, although it did not create a
common law joint tenancy by reason of the absence of one of the
four unities of interest, time, title, and possession. See
Annotation, 1 A.L.R. 2d 247.
In Therrien v. Therrien, 46 A.2d 538 (N.H.) a warranty deed
given by a wife to her husband recited in the granting clause
that the property was "to be held by him with this grantor in
joint tenancy with full rights of ownership vesting in the
survivor," and the habendum clause
contained the following language: "to him the said grantee as
joint tenant." In a petition for a declaratory judgment brought
by the surviving husband against the children of the deceased
wife and grantor, the court held that this language clearly
expressed an intention to create a joint tenancy, and it was so
construed. It is noted that the technicalities of real estate
conveyancing have been relaxed in New Hampshire, and this fact is
emphasized by the court's reference to the following quotation
from Dover, etc. Bank v. Tobin's Estate, 86 N.H. 209, 219,
166 A. 247, 248.
"`It is revolting to have no better reason for a rule of law
than that so it was laid down in the time of Henry IV. It is
still more revolting if the grounds upon which it was laid
down have vanished long since, and the rule simply persists
from blind imitation of the past.' Holmes, Collected Legal
Papers (1920) 187. `Even in the case of real estate, where
the common-law presumption as to joint tenancy has been
abolished by statute [R.L. c. 259, Sec. 17], the language
used * * * will be interpreted in the light of the
circumstances surrounding the transaction.' Dover, etc., Bank
v. Tobin's Estate, 86 N.H. 209, 210, 166 A. 247, 248."
In Hart v. Kanaye Nagasawa, 24 P.2d 815, (Cal.), a
conveyance was made to five grantees. The granting clause named
the grantees "and to their heirs and assigns forever." The
habendum clause after the names of the parties contained the
following language: "in joint tenancy, with full and absolute
title to his or her, the last survivor of the said parties of the
second part, and to the longest liver of the said parties of the
second part, and to his or her heirs, administrators or assigns
forever." In construing the deed the court said:
"We have no hesitancy in holding that the Harris deed
conveyed the fee in joint tenancy. The granting clause
purports to convey the fee-simple title to the five grantees
without limitation. The habendum
clause simply defines the estate granted as a joint tenancy,
with right of survivorship. . . . Giving the words used their
ordinary and usual meaning, they can be interpreted but one
way — that is, they create a joint tenancy, with the right of
survivorship expressly provided for. The estate contended for
by appellant — a joint life estate with contingent remainder
to the survivor — is of such an unusual nature that before a
court would be justified in holding such an estate had been
created, clear and unambiguous language to that effect would
have to be used. Here there is no ambiguity or uncertainty in
the words used. Nowhere in the deed did the grantors purport
to be retaining or reserving any estate in themselves;
nowhere in the deed is there any reference directly or
indirectly to an estate in remainder; nowhere in the deed is
there any reference at all to a life estate. Although not
perhaps conclusive, these factors are of some importance in
construing the words used. Another factor should be
mentioned. Section 1105 of the Civil Code provides: "A
fee-simple title is presumed to be intended to pass by a
grant of real property, unless it appears from the grant that
a lesser estate was intended." Nowhere in the deed her [sic]
involved is there any reference to any such lesser estate,
and so we must presume a fee was intended to pass."
In Hilborn v. Soale, et al., 44 Cal.App. 115, 185 P. 982, 983,
a deed of real estate to grantees, husband and wife "as joint
tenants with the right of survivorship," to have and to hold to
the said grantees" and to the survivor or [of] them forever," was
held to create a joint tenancy, and not a life estate in the
grantees and a contingent remainder in fee to the survivor. The
court also held that an execution sale of the interest of one of
the grantees severed the joint tenancy and left the purchaser at
the execution sale and the other grantee as tenants in common.
In Shepley v. Shepley, 324 Ill. 560, 155 N.E. 334, a conveyance
to grantees "with full rights of survivorship, and
not as tenants in common," was held to create an estate in joint
tenancy. In construing the Illinois statute, similar to our own,
modifying the common law rule favoring joint tenancy, the court
"It is not necessary to use the exact words of the statute,
in order to indicate an intention to create a joint tenancy.
It is sufficient if the language employed be such as to
clearly and explicitly show that the parties to the deed
intended that the premises were to pass in joint tenancy."
In Coudert, et al. v. Earl, 18 A. 220 (N.J.), the language used
in the deed was as follows — the purchases were described by name
"as joint tenants." The granting part of the deed contained the
following language: "as joint tenants, their heirs and assigns,"
and the habendum clause contained the following recitation, "in
joint tenancy, their heirs and assigns, to them and their proper
use." The court held that the language used was sufficient to
create an estate in joint tenancy without the use of the words
"and not an estate of tenancy in common."
Under statutes favoring the creation of tenancies in common but
not abolishing joint tenancies it is generally held that any
language clearly indicating an intention to create a joint
tenancy will be sufficient regardless of where it appears in the
deed. Sec 26 C.J.S. p. 968; 48 C.J.S. 918; 14 Am. Jur. p. 85, 86.
Difficulty arises, however, in those jurisdictions where such
intent conflicts with technical rules of construction,
particularly with reference to the creation of estates of
In this jurisdiction any joint interest in either real or
personal property is not recognized, except that of co-partners,
tenants in common, and joint tenants. Garland, Appellant, 126 Me. 84,
93, 136 A. 459. Tenancies in the entirety have not been
recognized since the enactment of the
statute authorizing married women to hold property. Robinson,
Appellant, 88 Me. 17, 33 A. 652. An estate in joint tenancy is
well recognized in this state. The statute does not abolish joint
tenancies, but the intent to create such an estate must be clear
and convincing. Garland, Appellant, supra. In the creation of
joint tenancies, four essential elements are necessary, to wit:
unity of time, unity of title, unity of interest, and unity of
possession. Strout, Admr. v. Burgess, 144 Me. 263, 268,
68 A.2d 241. The tenants must have one and the same interest,
accruing by one and the same conveyance, commencing at one and
the same time, and held by one and the same undivided possession.
One of the characteristics of a joint tenancy is the right of
survivorship. Strout, Admr. v. Burgess, supra. Another incident
of joint tenancy is the right of severance. Poulson v. Poulson,
145 Me. 15, 70 A.2d 868; Strout, Admr. v. Burgess, supra. Any
joint tenant may convey his interest and a conveyance to a
stranger destroys the unity of title, and also the unity of time,
and the grantee becomes a tenant in common with the other
co-tenant. If there are more than two joint tenants and one
conveys his interest to a third person, the grantee becomes a
tenant in common with the others although the others remain joint
tenants as between themselves. Tiffany, Real Property, 2nd. Ed.
Undoubtedly having this statute in mind, as well as the
technical nature of an estate in joint tenancy at common law, the
legal profession of this state for many years has utilized the
words "as joint tenants and not as tenants in common" when
desiring to effectuate a conveyance of property in joint tenancy.
In recent years this practice has become increasingly prevalent.
A high percentage of conveyances to husband and wife, or to
persons in close relationship, especially of residential
property, have contained these words in some part of the
instrument of conveyance. They have been placed in deeds with the
obvious intention of
creating an estate in joint tenancy with all of the well
recognized attributes and incidents of such an estate at common
law. Indeed, it may well be said that joint tenancies in this
jurisdiction, for many practical reasons, are now being looked
upon with favor rather than with disfavor. These deeds, if
possible, should be construed as joint tenancies in the entire
estate parted with by the grantor.
Does the use of the word "heirs" in the phrase "and the heirs
of the survivor forever," and in no other part of the granting or
habendum clauses of the deed, preclude a severance of the
property and thus create a life estate in the grantees with a
contingent fee in the survivor, as claimed by the defendant? We
believe not. The intention to create a joint tenancy, so clearly
expressed in this deed, carries with it the intent to endow such
tenancy with all of the well recognized incidents of a joint
tenancy at common law. If the intention of the parties to create
a joint tenancy, clearly expressed as in this deed, is in
conflict with technical rules of the common law in the
construction of deeds, then that intent takes precedence over and
overrides those technical rules which are attempted to be used to
justify the creation of such an unusual estate as that claimed by
the defendant. If the parties had desired to create the estate
claimed by the defendant, they could have indicated such intent
by apt language. They did not do so. The deed contained no
reference to a life estate, nor did it refer to any estate in
We hold that the elements of unity of time, title, interest,
and possession were present in the estate created by the deed,
and that the deed conveyed the entire estate disposed of by the
grantor, a fee, to the grantees as joint tenants with all of the
incidents and attributes of such tenancy at common law. If our
ruling in this respect be considered a departure from the
technical rules of the common law, let it be said that it is made
in the interest of the security of
property titles and in accordance with the intention of the
parties clearly expressed in the instrument of conveyance.
Reformation of the deed is unnecessary. The conveyance from the
defendant Alice L. Palmer (Flint) to Nathan H. Palmer disposed of
her entire interest in the property and he thereby became the
owner of the fee, which is now in the plaintiff.
The entry will be
Appeal allowed. Bill of complaint sustained. Case
remanded to sitting Justice for entry of a decree of
declaratory judgment for plaintiff in accordance with