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 .
590, 32 L. R. A. 700, Hiles v. Fisher, 144 N. Y. 313, 43 Am. St. Rep. 762, 30 L. R. A. 305; Miner v. Brown, 133 N. Y. 312, 31 N. E. 24: Stolcup v. Stolcup, 137 N. Car. 305, 49 S. E. 210; Holloway v. Green (N. Car.) 83 S. E. 243; Blease v. Anderson, 241 Pa. 198, 88 Atl. 365.
11. Highsmith v. Page, 158 N. Car. 226, 73 S. E. 998; Eason v. Eason, 159 N. Car. 539; 75 S. E. 797; Blease v. Anderson, 241 Pa. 198, 88 Atl. 365.
12. Haak Lumber Co. v. Croth-ers. 146 Mich. 575, 109 N. W. 1066.
In Hoag v. Hoag, 213 Mass. 50. Ann. Cas. 1913E, 886, 99 N. E. 521, it was held that under a conveyance to husband and wife, expressed to be to them as joint tenants, they took as tenants by the entireties, on the theory that the same words which make others joint tenants make husband and wife tenants by the entireties.
[Sec. 194 decided that in such case they take by such several and distinct rights, not depending on their relation of husband and wife, that there is no justification for regarding them as tenants by entireties, a class of tenancy the existence of which appears, as above indicated, to be based on a presumption of an intention to that effect on the part of the grantor or testator.13 In one state on the other hand they are regarded as holding in such case as tenants by entireties.14
This tenancy may be created even when the husband and wife are not the only grantees in the conveyance or beneficiaries of the devise, as when it is to a man and his wife and another person, in which case the husband and wife would, prima facie, take a one-half interest only, which they would hold by entireties, while the third person would take the other half; and a like rule, that the husband and wife together take but one share, would apply, whatever the number of cotenants.15 This rule, however, that the husband and wife take together but one share, like the rule that they take as tenants by entireties, is, it appears, merely a rule of construction, and must give way to evidence of a contrary intention.16 And as a rule of construction it has been regarded as in force in spite of the abolition of tenancy by entireties.16a
In two states it has been decided that a conveyance by a husband in terms to himself and his wife made them tenants in common and not tenants in entireties, on
13. Knapp v. Windsor, 6 Cush. (Mass.) 157; Brown v. City of Baraboo, 90 Wis. 151, 30 L. R. A. 320.
14. Gillam's Ex'rs v. Dixon, 65 Pa. St. 395.
15. Litt. Sec. 291; 4 Kent, Comm. 363; Jupp v. Buckwell, 39 Ch. Div. 148; West Chicago Park Comm'rs v. Coleman, 108 111. 591; Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302; Hardenbergh v. Hardenburgh,
10 N. J. 42, 18 Am. Dec. 371; Barber v. Harris, 15 Wend. (N. Y.) 615; Johnson v. Hart, 6 Watts & S. (Pa.) 319, 40 Am. Dec. 565; Thornton v. Thornton, 3 Rand. (Va.) 179.
16. In re March, Mander v. Harris, 27 Ch. D. 166.
16a. In re March, Mander v. Harris, 27 Ch. D. 166; In re Jupp, Jupp v. Buckwell, 39 Ch. D. 148.
Sec. 194 ] been given such effect.25 In a few jurisdictions the doctrine of tenancy by entireties has, without reference to any particular statutory provisions, been repudiated as not in harmony with the usages of the community, or as based on a conception of the marriage relation which no longer obtains.26-27
Co-Ownership the theory apparently that the conveyance as to himself was invalid, since one cannot convey to oneself, and that there was consequently in effect merely a conveyance of an undivided half interest to the wife.17 It has however been argued,18 with considerable force, that in analogy to the common law rule that, in the case of a conveyance to two or more persons as joint tenants, which fails as to one person, the others take the whole,19 the wife should he regarded as taking the whole in this case to the exclusion of the husband.
Although the effect of a conveyance to husband and wife is to make them tenants by entireties at law, nevertheless, if the purchase money is paid exclusively by the wife, there is a resulting trust in her favor to the extent of the whole beneficial interest,20 while if the purchase money is paid by both, but a greater proportion is paid by the wife than by the husband, there will be a resulting trust to that extent in her favor.21
In case land is held by husband and wife by enIt has been decided that the fact that a conveyance or devise to a man and his wife and to others is expressly to them "as tenants in common" does not affect the presumption that the man and wife are intended together to take but one share. 2 Jarman, Wills, 1116; Warrington v. Warrington, 2 Hare, 54. Contra, Hilton v. Bender, 69 N. Y. 75.
17. Pegg v. Pegg, 165 Mich. 228, 130 N. W. 617, 33 L. R. A. (N. S.) 166, Ann. Cas. 1912 C. 925; Wright v. Knapp, 183 Mich. 656, 150 N. W. 315; Michigan State Bank of Eaton Rapids v. Kern, 189 Mich. 467, 155 N. W. 502; In re Klatzl's Estate, 216 N. Y. 83, 110 N. E. 181. See Lang v. Wilmer, 131 Md. 215, 101 Atl. 706.
18. See editorial note in 28 Harv. Law Rev. at p. 631, 29 Id. 201. Compare note in 15 Columbia Law Rev. at p. 694.
19. Ante Sec. 191, note 20.
20. Noble v. Morris, 24 Ind. 478; Hudson v. Wright, 204 Mo. 412, 103 S. W. 8; Burnett v. Campbell County, 1 Tenn. Ch. App. 18.
21. Moss v. Ardrey, 260 Mo. 595, 169 S. W. 6; Deer v. Deer's Estate (Mo. App.) 180 S. W. 572. That such is the case when a conveyance is made to two persons, not husband and wife, who contribute unequally to the purchase price, but take the legal title as joint tenants, see ante Sec. 191, note 6a. In the Missouri case first above cited, it was decided that while such a resulting trust could have been established in betireties, timber cut thereon is regarded as held by them in the same manner.2la
- To what extent recognized. The various state statutes abolishing joint tenancy or the right of survivorship, or declaring that two or more grantees shall, in the absence of an express declaration to the contrary, take an estate in common, have ordinarily been held not to apply to tenancy by entireties,22 though some such statutes have been construed to apply thereto.23 Likewise, what are known as the "Married Women's Property Acts" have usually been held not to abolish tenancy by entireties,24 though in some jurisdictions they have half of the wife, it could not he established in behalf of the heirs of the husband as against the surviving wife.