McManus v. Summers

Smith, J., delivered the opinion of the Court. We shall here hold that under the facts and circumstances of this case a conveyance to two persons described in that deed as husband and wife, which conveyance purported to be to them as tenants by the entirety, created a joint tenancy if the grantees in fact were not legally married. The genesis of this dispute was a trip to Texas by Dollie Collins Smith in 1952. Her daughter claimed this trip was "to procure a divorce under threats that, if she did not do so, O. Thaxter Smith would seek a divorce on his own in another jurisdiction and deprive Dollie Smith of any and all financial support.” The divorce was obtained.

He then married Mary Sampson Smith. Thereafter they purchased real estate in Montgomery County. The deed referred to the "parties of the second part” as "O. THAXTER SMITH and MARY R. SMITH, his wife ....” The land in question was conveyed "unto the said parties of the second part, in fee simple, as TENANTS BY THE ENTIRETY ....” 1 Mr. Smith died testate many years later, leaving his estate to his children. The children filed a declaratory judgment action against Mary Sampson Smith.

Upon her subsequent death her personal representative was substituted as a party defendant. The petition alleges that they are the devisees and legatees of their father; his death; that they are the surviving children of Dollie Collins Smith; that Dollie Collins Smith and 0. Thaxter Smith were legally married; that Dollie C. Smith obtained a divorce a vinculo matrimoni from O. Thaxter Smith in Texas "although ⁴¹⁰ neither were domiciliaries of the State of Texas, nor were they Bona Fide residents of the State of Texas for more than One (1) year nor residents for six (6) months in the County prior to the time that said divorce was obtained”; that Dollie C. Smith was a domiciliary of Washington, D.C. "who for purposes of obtaining the divorce was in Texas for only a short period of time and then had no present intention of making Texas her home and who immediately after obtaining said divorce, returned to the realty she owned in Washington, D.C., where she remained until she departed this life on February 20, 1973”; that O. Thaxter Smith "was a domiciliary of Washington, D.C. and was not present for any portion of the divorce proceedings in the State of Texas,” which proceedings were ex parte; that O. Thaxter Smith did not personally appear in or in any way participate in the divorce proceedings; that the divorce in Texas was null and void; the subsequent marriage between 0.

Thaxter Smith and Mary Sampson Smith; the acquisition of the property in question to which they "purportedly took said title as husband and wife as Tenants by the Entirety although they were not validly married”; and that O. Thaxter Smith "bequeathed all his property, real, personal and mixed, to the Plaintiffs herein, absolutely and in fee.” They sought a declaration that the Texas divorce is "a nullity and of no legal consequence,” that the land in question was owned by O. Thaxter Smith and Mary R. Smith as tenants in common, and that the plaintiffs should inherit their father’s interest in that property. Each side moved for summary judgment. Affidavits were filed by both sides, including one by one of the Smith daughters which would clearly give rise to the inference that her mother was not domiciled in Texas at the time of the divorce action. The trial judge (Cahoon, J.) granted the defendant’s motion for summary judgment.

He said: For the Plaintiffs to have any interest in the subject property their testator had to hold the property in a cotenancy which did not constitute a joint tenancy with Mary Smith. The deed of . conveyance manifestly created a joint tenancy. ⁴¹¹ He pointed out that there were "no suggestions in the record of fraud relating to the deed, nor of any circumstances of severance of the unities of joint tenancy.” He found trial unnecessary, saying in relevant part, "I am unable to discern any asserted facts from which an intention not to create a joint tenancy could be inferred. The disputed facts relate to the capacity of the grantees to take a tenancy by the entirety not their intention to do so.” (Emphasis in original.) Accordingly, the property in question was "declared to be owned solely by Mary R. Smith or her heirs, devisees, or legatees as the survivor of 0. Thaxter Smith . ...” The decree specified that the Smith children "are not entitled to inherit any interest in the real property . ...” The Smith children appealed to the Court of Special Appeals.

We granted the writ of certiorari prior to consideration of the case by that court. The Smith children argue, "In the absence of an express provision creating a right of survivorship, a failed tenancy by the entirety should become a tenancy in common.” They rely upon Code (1974) § 2-117, Real Property Article, and Donnelly v. Donnelly, 198 Md. 341 , 84 A.2d 89 (1951), which case we shall discuss later. This Court has had occasion many times to consider the predecessor to § 2-117, most recently found as Code (1957, 1973 Repl. Vol.) Art. 21, § 5-117, and previously as Code (1957) Art. 50, § 9.

The statute now reads: No deed, will, or other written instrument which affects land or personal property, creates an estate in joint tenancy, unless the deed, will, or other written instrument expressly provides that the property granted is to be held in joint tenancy. The revisor’s note indicates that it is but stylistically changed from the predecessor statute. It appears to have been unchanged from its original enactment by Chapter 162 of the Acts of 1822 until the style changes were made. In an application of this statute Judge Alvey said for the Court in Marburg v. Cole, 49 Md. 402 (1878); ⁴¹² By the common law of England, which is the law of this State, except where it has been changed or modified by statute, a conveyance to husband and wife does not constitute them joint tenants, nor are they tenants in common.

They are, in the contemplation of the common law, but one person, and hence they take, not by moieties, but the entirety. They are each seised of the entirety, and the survivor takes the whole. [Id. at 411.] The Code, Art. 49, sec. 12, being the codification of the Act of 1822, ch. 162, provides that no instrument of conveyance shall be construed to create a joint tenancy, unless it is expressly provided that the property shall be held in joint tenancy. But, as we have seen, the estate conveyed to husband and wife in a deed like the one before us, is not to them as joint tenants at the common law, and hence the statute just referred to does not affect or apply to such an estate as that conveyed to husband and wife. This has been expressly so held by this court, in Craft v. Wilcox, 4 Gill. 504. [Id. at 412.] As put in Kepner, The Effect of an Attempted Creation of an Estate by the Entirety in Unmarried Grantees, 6 Rutgers L. Rev. 550 , 554 (1952), "It is uniformly agreed that a tenancy by the entirety cannot be established unless the grantees are legally married.” He cites for this 2 Tiffany, The Law of Real Property 220 (3d ed., Jones, 1938).

Asimilar statement was made by this Court in Mitchell v. Frederick, 166 Md. 42, 48 , 170 A. 733 (1934), citing an earlier edition of Tiffany. It is true that under the predecessor of § 2-117 joint tenancies have been viewed with disfavor. See, e.g., Williams v. Dovell, 202 Md. 351, 358 , 96 A.2d 484 (1953). See also 4 G. Thompson, Commentaries on the Modern Law ⁴¹³ of Real Property, § 1775 at 11 (J. Grimes Repl.

Vol. 1961). Although viewed with disfavor, it must be remembered that as to the formula for creation of joint tenancies Chief Judge Bond observed for the Court in Marshall v. Security Storage Co., 155 Md. 649, 652-53 , 142 A. 186 (1928), "The [statutory] requirement is only one of clear manifestation of intention, not one of particular words,” citing Craft v. Wilcox et al., 4 Gill. 504 (1846); Fladung v. Rose, 58 Md. 13, 25 (1882); and Michael v. Lucas, 152 Md. 512 , 137 A. 287 (1927). We shall have more to say about Michael later. Judge Sloan said for the Court in Schilbach v. Schilbach, 171 Md. 405, 407 , 189 A. 432 (1937), "A tenancy by the entireties is essentially a joint tenancy, modified by the common law theory that the husband and wife are one person.” Accord Mitchell v. Frederick, 166 Md. 42, 48 , 170 A. 733 (1934).

Professor Kepner states, "One of the most articulate adherents to this point of view is the Maryland court,” citing Schilbach. Id. at 553. Professor Kepner, op. cit., states in commenting on the effect of a conveyance to parties as husband and wife who are not legally married: The question is not necessarily one of deceit on the part of the grantees. Actually, no less than the five following possibilities may exist with respect to the status of the parties.

They are as follows: 1. Both parties know that they are not married. Either or both may have a prior undissolved marriage. The parties may or may not undergo a formal ceremony to create the impression that they are married.

Perhaps they have property transferred to them as husband and wife to conceal their true status. 2. One person conceals the fact that he has been a party to a valid subsisting marriage. The innocent party honestly believes that he is legally married. ⁴¹⁴ 3. One of the spouses disappears and remains unaccounted for during a long period of time.

Believing that his wandering partner is dead, the abandoned spouse remarries in good faith. The lost spouse then reappears. 4. A husband or wife goes to another jurisdiction and obtains a divorce. Returning to his original domicile, the divorcing party enters into another marriage, relying on the divorce decree.

The domiciliary state decrees the foreign divorce to be null and void. The second marriage is necessarily invalid. 5. Property is conveyed to married parties. The marriage is subsequently annulled.

Since the marriage is voided, the parties are in the same position as if they had never gone through the marriage ceremony. [Id. at 554-55.] See also Annot., 83 A.L.R.2d 1051 (1962), and the cases collected in its later case service. Professor Kepner’s analysis should be borne in mind as we later examine the Maryland cases. He further stated: An analysis of the cases involving an attempt to create a tenancy by the entirety to unmarried parties reveals that they involve conveyances with granting clauses that describe the grantees in one of four different manners: 1. The grantor conveys to A and B. The instrument does not describe the parties as husband and wife, although they and the grantor may believe this to be the true status. 2.

A seller transfers to A and B as husband and wife. 3. The conveyance runs to A and B as tenants by the entirety. ⁴¹⁵ 4. A and B are named as tenants by the entirety with the right of survivorship. [Id. at 555-56.] Of the third category, in which this case falls, he says: A conveyance to two persons as tenants by the entirety is the third type of transfer construed by the courts. Reasoning that the parties intended to provide for survivorship when they executed an instrument identifying the grantees as tenants by the entirety, courts have concluded that a joint tenancy comes nearest to achieving this result.

In Maryland, Massachusetts and Pennsylvania cases have been adjudicated in accordance with this theory. [Id. at 557.] Mitchell, 166 Md. 42 , which we shall later discuss, is the Maryland case he cites. Professor Kepner concludes by stating: Despite that fact that the common law concept of a tenancy by the entirety has been substantially modified in many jurisdictions, in at least two respects it remains unaltered. In the first place, the right of survivorship remains an incident of this type of concurrent ownership. Secondly, an estate by the entirety may only exist between a husband and wife.

In the event a grantor attempts to create a tenancy by the entirety in grantees ostensibily husband and wife but who actually are not married, the interest acquired will depend on the language of the granting clause. The results are as follows: 1. A grant to two unmarried parties by name will create a tenancy in common. 2. A conveyance to two unmarried parties as tenants by the entirety will establish a joint tenancy.

The cases holding otherwise ignore that parties’ implied preference for survivorship. ⁴¹⁶ 3. A transfer to unmarried parties as tenants by the entirety with the right of survivorship will constitute the grantees joint tenants. 4. A deed running to unmarried parties as husband and wife transfers to each a tenancy in common, notwithstanding the parties’ belief that they are married and despite the fact that a right of survivorship