PRESENT: All the Justices
BARBARA A. MAITLAND
OPINION BY
v. Record No. 031224 JUSTICE G. STEVEN AGEE
APRIL 23, 2004
WILBERT C. ALLEN, ET AL.
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
Leslie M. Osborn, Judge
In this appeal, we consider whether one of two life tenants
may compel partition of real property against the other life
tenant and the remaindermen. The Circuit Court of Lunenburg
County, citing Carneal v. Lynch, 91 Va. 114, 20 S.E. 959 (1895),
held the life tenant could compel partition as to her co-life
tenant. Citing Whitby v. Overton, 243 Va. 20, 413 S.E.2d 42
(1992), the trial court held partition could not be compelled by
the life tenant as to the remaindermen. For the reasons
discussed below, we will affirm, in part, the judgment of the
trial court and remand the case for further proceedings.
I. BACKGROUND AND PROCEEDINGS BELOW
The relevant facts are undisputed. Barbara A. Maitland
("Maitland") (then Barbara Allen) and her husband, Wilbert C.
Allen ("Allen"), executed five deeds of gift in 1997 conveying
separate parcels of land to each of their five adult children
(collectively, the "children"). The deeds reserved a joint life
estate for Maitland and Allen in the parcels conveyed with the
remainder vested in the named children. Maitland and Allen were
later divorced and Maitland filed a bill of complaint in the
trial court seeking to compel partition of the parcels of land
she and Allen previously had conveyed to the children.
Allen and the children answered and filed a motion for
summary judgment, arguing this Court's decision in Whitby barred
partition of the parcels by Maitland as a life tenant. Maitland
responded by asserting that the owner of a joint life estate may
compel partition against the co-tenant and the remaindermen
pursuant to this Court's decision in Carneal.
The trial court denied summary judgment for Allen, ruling
that Maitland may compel partition as to him as a joint life
tenant. However, the trial court granted summary judgment for
the children, ruling that Maitland could not force partition
against the remaindermen. On appeal to this Court Maitland
assigns error to the trial court’s ruling denying partition
against the remaindermen. Allen and the children assign cross-
error to the trial court’s ruling allowing partition as to the
life estate.
II. ANALYSIS
A. Partition by Life Tenant as to the Remaindermen
Partition is governed by statute in Virginia. Code § 8.01-
81 provides that "[t]enants in common, joint tenants, executors
with the power to sell, and coparceners of real property . . .
shall be compellable to make partition and may compel
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partition." Tenants in common can thus compel partition and are
compellable to partition under the statute. But as we
recognized in Whitby, “the statute does not explicitly authorize
a life tenant to compel partition.” 243 Va. at 22, 413 S.E.2d
at 43.
Recognizing this fact, Maitland argues that her status as a
tenant in common with Allen as to the life estate in all the
real property is sufficient to compel partition of the whole
estate under our decision in Carneal. We disagree.
The case at bar is factually indistinguishable from that
before us in Whitby. The party seeking partition of the
remainder interest in Whitby was the surviving joint life
tenant. 243 Va. at 21, 413 S.E.2d at 42. While Maitland does
have a joint life tenant in esse (Allen), this is a distinction
without a difference. Maitland is not a tenant in common with
the remaindermen, and it is only that relationship which
determines whether partition may lie as to the remainder.1
1
A deed to one of the parcels of real property conveyed to
one of the children reflects that child owned an undivided
interest in that property at the time Maitland and Allen
conveyed the remainder interest to him of the portion they
owned. That child’s ownership interest could create a tenancy
in common with Maitland, as to that parcel, and distinguish it
from the other remainder interests as to the right of partition.
However, no such argument was pled by Maitland or presented to
the trial court. No assignment of error is made as to this
parcel based on the child’s fee simple ownership of a portion.
Accordingly, we do not consider the foregoing in the resolution
of this appeal. See Rule 5:25; Rule 5:17(c).
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Distinguishing Carneal, we reviewed and answered this issue in
Whitby:
[I]n the present case, unlike Carneal, the life
tenant seeks to establish a tenancy in common
between the life tenant and the remaindermen in
the life tenant’s undivided moiety. . . . Here,
the remaindermen have no right to hold and occupy
the land in question because the surviving life
tenant has not died. In Carneal, both the life
tenant and the fee simple owners of the other
undivided moiety had the right to hold and occupy
the land because there existed two separate
undivided moieties in the property and the title
to each was held by different owners. In order
for a life tenant to be a tenant in common with
other owners of the property there must be
coequal rights of occupancy, and such rights are
not present in this case.
Because this life tenant is not a tenant in
common with the remaindermen, it follows that he
has no right to compel partition of the property
against the owners of the remainder interest
. . . .
Whitby, 243 Va. at 24, 413 S.E.2d at 44.
The Supreme Court of Colorado recently reached the same
conclusion in Beach v. Beach, 74 P.3d 1 (Colo. 2003), holding
that partition could not lie by a life tenant against the
remaindermen:
[P]artition applies only to concurrent interests,
meaning interests that are held simultaneously in
time. Thus, a present life estate cannot be
partitioned from a future remainder interest
because the holders of the two interests possess
the property successively, rather than
concurrently.
. . . .
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By definition, the holder of a present life
estate and the holder of a future remainder
interest do not own concurrent interests because
each holder uses the property exclusively during
her respective time of possession. Although the
holders of the life estate and successive
remainder interest do share a common interest in
the property, “this variety of simultaneously
existent interests does not constitute the
concurrent ownership, the splitting of which is
the function of partition.”
Id. at 3 (citation omitted).
Because Maitland and the children as remaindermen hold the
successive estates of a life tenancy and a remainder interest,
they are not tenants in common and thus partition does not lie.
Carneal is not authority to the contrary and is limited to its
specific facts. Accordingly, the trial court did not err in
granting summary judgment to the children.
B. Partition Between Life Tenants
Allen and the children assign cross-error to the trial
court’s denial of summary judgment for him and the ruling that
Maitland may have partition as to their joint life estate. The
trial court’s judgment as to partition of Maitland and Allen’s
life estate is not a final order and no appeal was taken under
Code § 8.01-670.1. No final order on the issue of the cross-
error is before us and thus we do not address it.2 Code § 8.01-
670.
2
The order granting summary judgment in this case expressly
dismissed the action as against the children as the holders of
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III. CONCLUSION
For the reasons enumerated in Whitby, we will affirm the
judgment of the trial court granting summary judgment to the
children. In the absence of a final order, we do not consider
the cross-appeal and that portion of the trial court’s judgment
denying summary judgment for Allen. Therefore, we will remand
the case for such further proceedings as may be required to
complete the cause with regard to partition among the joint life
tenants, Allen and Maitland.
Affirmed in part and remanded.
the remainder interests in the subject properties. Because
their interests, and the grounds upon which the action was
dismissed as to them, are separate and distinct from issues in
the remaining claims against Allen, the other life tenant, the
disposition as to the children is appealable under the
"severable" interest rule. See Dalloul v. Agbey, 255 Va. 511,
515 n. *, 499 S.E.2d 279, 282 n. * (1998); Leggett v. Caudill,
247 Va. 130, 134, 439 S.E.2d 350, 352 (1994); Wells v. Whitaker,
207 Va. 616, 628-29, 151 S.E.2d 422, 432-33 (1966). See also
Hinchey v. Ogden, 226 Va. 234, 236-37 & n.1, 307 S.E.2d 891, 892
& n.1 (1983).
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