This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Tenancy by entireties (or by the entirety), is the tenancy by which husband and wife at common law hold land conveyed or devised to them by a single instrument, which does not require them to hold it by another character of tenancy. It is essentially a joint tenancy, modified by the common law theory that husband and wife are one person.99
The most important incident of tenancy by entireties is that the survivor of the marriage, whether the husband or the wife, is entitled to the whole, which right cannot be defeated by a conveyance by the other to a stranger, as in the case of a joint tenancy,1 nor by a sale under execution against such other.2
99. Litt. Sec. 291; Challis, Real Prop. 376, note; Pray v. Stebbins, 141 Mass. 219, 55 Am. Rep. 462, 4 N. E. 824; Morris v. McCarty, 158 Mass. 11, 32 N. E. 938; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266; Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517.
The cases upon the subject of tenancy by entireties, previous to 1896, are conveniently collected in 30 L. R. A. at p. 305, note to Hiles v. Fisher.
That a gift to husband and wife was for their lives was regarded as an express declaration of intention to create a right of survivorship within a statute requiring such a declaration for the purpose, McCallister v. Folden's Assignee, 110 Ky. 732, 62 S. W. 538. See ante Sec. 191 note 18a.
1. Blackst. Comm. 182; 1 Preston, Estates, 131; 4 Kent, Comm. 362: Branch v. Polk. 61 Ark. 388, 30 L. R. A. 324, 54 Am. St. Rep.266, 33 S. W. 424; Simpson v. Pearson, since, even at common law, if persona who have previously acquired joint interests become husband and wife, they do not become tenants by the entirely, there is evidently nothing in the relation of husband and wife to prevent their acquisition of property as joint tenants or tenants in common. The result of this view is that the existence of a tenancy by entireties is a question purely of intention, though an intention on the part of the grantor to create such a tenancy is presumed, in the absence of an expression of a contrary intention. In other words, there is a rule of construction that, in case of a conveyance to husband and wife, the language prima facie means that they are to hold by the entireties.
31 Ind. 1. 99 Am. Dec. 577; Rogers v. Grider, 1 Dana (Ky.) 242; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266; Varnum v. Abbot, 12 Mass. 478, 7 Am. Dec. 87; Pray v. Stebbins, 141 Mass. 219, 55 Am. St. Rep. 462, 4 N. E. 824; Wyckoff v. Gardner, 20 N. J. L. 556, 45 Am. Dec. 388; Hiles v. Fisher, 144 N. Y. 306, 30 L. R. A. 305, 43 Am. St. St. Rep. 762, 39 N. E. 337; Need-ham v. Branson, 28 N. C. 26, 44 Am. Dec. 45; Fairchild v. Chas-telleux, 1 Pa. St. 176, 44 Am. Dec. 117; Ames v. Norman, 4 Sneed (Tenn.) 683, 70 Am. Dec. 269; Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517; Ketchum v. Wais-worth, 5 Wis. 95, 68 Am. Dec. 49. 2. Simpson v. Pearson, 31 Ind. 1, 99 Am. Dec. 577; Beach v. Hol-lister, 3 Hun (N. Y.) 519; French v. Mehan, 56 Pa. 286; Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517; Ketchum v. Walsworth. 5 Wis. 95, 68 Am. Dec. 49.
A holding by entireties is ordinarily in fee simple, but it may be in fee tail special,3 or for the life of the survivor of the two tenants,4 for the life of one of them who is named,5 or for years.6
- Mode of creation. Tenancy by entireties can exist only in case the persons to whom the title passes are husband and wife at the time the instrument conferring title takes effect, and it is not created by a conveyance or devise to persons who subsequently marry.7 Consequently, if a conveyance is made to two persons under the mistaken impression that they are husband and wife, they would take as tenants in common rather than as tenants by entireties,8 except as the intention that they shall hold as tenants by the entireties may be regarded as effective to create a joint tenancy, which more closely resembles a tenancy by the entireties.9
While a conveyance or devise to a husband and wife will ordinarily create a tenancy by entireties, the authorities are generally to the effect that an intention, clearly expressed in the instrument, that they shall take as tenants in common or as joint tenants, will be effective,10 the argument in favor of this view being that
3. 2 Preston, Abstracts, 39 et seq.
4. Purefoy v. Rogers, 2 Saund. 386b; Doe d. Dormer v. Wilson, 4 Barn. & Ald. 303; Wentworth v. Remick, 47 N. H. £26, 90 Am. Dec. 573; Torrey v. Torrey 14 N. Y. 430; McRoberts v. Copeland, 85 Term. 211; Irvin v. Stover, 66 W. Va. 356, 67 S. E. 1119.
5. Thomas v. DeBaum, 14 N. J. Eq. 37.
6. Hales v. Petit, 1 Plowd. 259; Goelet v. Gori, 31 Barb. (N. Y.) 320; Rezabek v. Rezabek, 196 Mo. App. 673, 192 S. W. 107.
7. Co. Litt. 187b; Holt v. Wilson, 75 Ala. 58; Morris v. McCarty, 158 Mass. 11, 32 N. E. 938; Hardenbergh v. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371; Stuckey v. Keefe's Ex'rs., 26 Pa. St. 397.
8. Wright v. Kayner, 150 Mich. 7, 113 N. W. 779; McKee v. Bevins, 138 Term. 249, 197 S. W. 563.
9. Morris v. McCarty, 158 Mass. 11, 32 N. E. 938.
10. 1 Preston, Estates, 132; 4 Kent, Comm. 363; Hunt v. Blackburn, 128 U. S. 464, 32 L. Ed. 488; Thornburg v. Wiggins, 135 Ind. 178, 41 Am. St. Rep. 422, 22 L. R. A. 42; Baker v. Stewart, 40 Kan. 442, 2 L. R. A. 434, 10 Am. St. Rep. 213, 19 Pac. 904; Fladung v. Rose, 58 Md. 13; McDermott v. French, 15 N. J. Eq. 78; Fulper v. Fulper, 54 N. J. Eq. 431, 55 Am. St. Rep.
It has been held that the presumption of an intention to create a tenancy by entireties is rebutted by the fact that the conveyance is in terms of a specific fractional interest to each,11 and what is in terms a conveyance to husband and wife does not make them tenants by entireties if its legal effect is merely that of a release.12
At common law, under the rule of primogeniture, property could not pass to husband and wife from a common ancestor, but in this country this may occur, and the question has arisen whether in such case they take as tenants by entireties. In two states it has been