David L. Banks v. Mackie H. Banks

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DAVID L. BANKS, )
)
Petitioner, )
)
v. ) C.A. No. 10934-VCG
)
MACKIE H. BANKS, individually and )
as Executrix of THE ESTATE OF )
RUSSELL V. BANKS, and THE )
ESTATE OF RUSSELL V. BANKS, )
)
Respondents. )

OPINION

Date Submitted: December 17, 2015
Date Decided: March 31, 2016

William M. Kelleher and Phillip A. Giordano, of GORDON FOURNARIS &
MAMMARELLA, P.A., Wilmington, DE, Attorneys for Petitioner.

Charles T. Armbruster, III, of TOMASETTI LAW, LLC, Fenwick Island, DE,
Attorney for Respondents.

GLASSCOCK, Vice Chancellor
 At common law, real property transferred equally to two or more persons

jointly was presumed to be held thereafter by those persons as joint tenants with

right of survivorship, unless the documents of transfer provided explicitly that the

property would be held as tenants in common.1 The primary difference between

these types of joint estates is the treatment of ownership following the death of a

joint tenant: in the case of the former, the decedent‘s interest automatically vests in

the surviving joint tenant; in the latter case, the fractional interest held by the

decedent passes through his estate. By the end of the 18th century, the feudal

concerns that led to this presumption had lost potency, and the harsh results often

worked on heirs by the presumption, together with the recognition that full

alienability of property maximized its value, made the common-law presumption

socially undesirable. 2 Legislatures in jurisdictions in this country have since

1
2 Tiffany Real Prop. § 421 (3d ed. 2015). See Cookman v. Silliman, 2 A.2d 166, 167 (Del. Ch.
1938) (citing 2 Bl.Com. 194); see also Durant v. Hamrick, 409 So. 2d 731, 733 (Ala. 1981) (―At
English common law, joint tenancies rather than tenancies in common were favored. . . . As a
matter of law, where a deed conveyed property to two or more persons jointly, the common law
presumed that the interest created in the grantees was that of a joint tenancy. . . . In order to
create a tenancy in common, it was necessary that the conveyance be specific and affirmatively
provide language to confirm the grantor's intent to create a tenancy in common.‖) (citat ions
omitted); Mette v. Feltgen, 27 N.E. 911 (Ill. 1891), aff’d, 36 N.E. 81 (1894) (―Where an estate
was conveyed to a plurality of persons, without adding any restrictive, exclusive, or explanatory
words, such conveyance, at common law, was held to constitute the grantees joint tenants, and
not tenants in common, and, in order to create a tenancy in common by deed, it was necessary to
add exclusive or explanatory words, so as to expressly limit the estate to the grantees to hold as
tenants in common, and not as joint tenants.‖).
2
See generally John V. Orth, The Perils of Joint Tenancies, 44 Real Prop. Tr. & Est. L.J. 427
(Fall 2009) [hereinafter Orth, Joint Tenancies]; see also Sheldon F. Kurtz, Moynihan‘s
Introduction to the Law of Real Property 278–79 (5th ed. 2011) [hereinafter Kurtz, Moynihan‘s
Introduction]; Overheiser v. Lackey, 100 N.E. 738, 739 (N.Y. 1913) (explaining that legislation
1
curbed and even eliminated3 the estate of joint tenancy with right of survivorship

(―joint tenancy WROS‖).4

Precisely two hundred years ago, the Delaware General Assembly

eliminated, not the estate itself, but the presumption in its favor. By act of

February 16, 1816, the legislature provided that ―any law, usage or custom to the

contrary notwithstanding,‖ no estate in real property shall be created ―unless the

premises therein mentioned shall be expressly granted, devised or conveyed to

such persons to be held as joint tenants and not as tenants in common.‖5 This has

remained our law, with almost exactly the same statutory language controlling

today; the current statute disallows creation of a joint tenancy WROS in real

property by grant, devise, or conveyance ―unless the premises therein mentioned

hostile to joint tenancies WROS was enacted throughout the Union because ―the political policy
has been to encourage the distribution of land among the people.‖) (internal quotation and
citation omitted); Smith v. Cutler, 623 S.E.2d 644, 646 (S.C. 2005) (―Courts began favoring
tenancies in common over joint tenancies because the harsh results of survivorship rights often
encumbered the land and defeated the intention of the grantor.‖).
3
See, e.g., Tenn. Code Ann. § 66-1-107 (2004) (―In all estates, real and personal, held in joint
tenancy, the part or share of any tenant dying shall not descend or go to the surviving tenant or
tenants, but shall descend or be vested in the heirs, executors, or administrators, respectively, of
the tenant so dying, in the same manner as estates held by tenancy in common.‖) (emphasis
added); Alaska Stat. § 34.15.130 (1970) (abolishing joint tenancies with right of survivorship);
Nunn v. Keith, 268 So. 2d 792, 794–97 (Ala. 1972) (noting that the Alabama legislature
abolished the joint tenancy with right of survivorship in the early 1800s, but then revived it in
1945, for those cases where the parties had clearly expressed their intent to create a joint tenancy
with right of survivorship).
4
The term ―joint tenancy‖ implies (though perhaps not conclusively) an estate with right of
survivorship. See infra note 34. For purposes of clarity, in light of the arguments here, I use the
ugly and unwieldy term ―joint tenancy WROS‖ to mean a joint tenancy, as opposed to a tenancy
in common or other estate in land.
5
5 Del. Laws 174 (1816).
2
are expressly granted, devised or conveyed to such persons, to be held as joint

tenants and not as tenants in common.‖6 The case before me poses a simple

question, which remarkably has not been directly addressed in the two hundred

years that this language has controlled the conveyance of realty: what words are

required to ―expressly‖ convey property ―to be held as joint tenants and not as

tenants in common?‖ Is a recitation of the precise verbiage of the statute required

to create the disfavored estate? If not, is an explicit negation of a tenancy in

common required? Or is it sufficient for the drafter to employ language leaving no

doubt that the estate is to be held as a joint tenancy WROS, and thus not as a

tenancy in common?

For two hundred years careful draftsmen intending to create a joint tenancy

WROS have created instruments that quoted the statutory language; 7 this case

involves a less-careful—or perhaps bolder—draftsman, who used language making

clear that the estates intended were joint tenancies WROS and not tenancies in

common, but who eschewed or neglected the incantation of the statutory language.

Nonetheless, I find that the statute is satisfied where the language used is

consistent only with a joint tenancy WROS, and that the instruments in question

6
25 Del. C. § 701.
7
See Cookman, 2 A.2d at 167 (addressing a determinable fee with a possibility of reverter, but
observing that ―I believe the uniform opinion of the bar always has been . . . that certainly the
safest way, and therefore the best one to follow in practice, to create an estate in joint tenancy is
to embody the exact language of the statute.‖).
3
here created such estates.

I. BACKGROUND

The pertinent facts can be stated briefly. Petitioner David L. Banks is the

brother of Russell V. Banks,8 who died testate on July 4, 2012.9 Before Russell‘s

death, the brothers together owned fifteen parcels of real estate (the ―Properties‖)

in Sussex County, Delaware.10 The granting language of the deed to each parcel

states that the property was conveyed to David and Russell as ―joint tenants with

right of survivorship.‖11 The Petitioner contends this language granted joint

tenancies WROS, and that upon Russell‘s death, the Properties passed to him in

full.

Respondent Mackie H. Banks serves as the executrix of the Estate of Russell

V. Banks.12 Mackie filed an Inventory for Russell‘s Estate on December 26, 2013;

an Amended Inventory on August 11, 2014; and a Second Amended Inventory on

March 18, 2015 (the ―Inventory‖) with the Register of Wills of the State of

Delaware in and for Sussex County.13 The Inventory asserts, contrary to

Petitioner‘s claim that he owns the Properties in full, that Russell‘s Estate holds a

8
Petition ¶ 3.
9
Answer ¶ 3. The Petition incorrectly states the date of Russell‘s death as July 4, 2006. See
Petition ¶ 3. It is clear from the submissions of both parties, however, that the former date—July
4, 2012—is correct.
10
Petition ¶¶ 6–21.
11
Id. at ¶ 24. I use the parties‘ first names throughout this Opinion for the sake of clarity. No
disrespect is intended.
12
Id. at ¶ 3.
13
Id. at ¶ 29.
4
50% ownership interest in the Properties.14 That is, the Respondents assert that the

Properties were conveyed to the brothers not as joint tenants WROS, but as tenants

in common.

The Petitioner filed a Petition to Quiet Title on the Properties on April 22,

2015, and filed an Amended Verified Petition to Quiet Title (the ―Petition‖) on

May 5, 2015. The Petitioner seeks a declaration that the Properties were conveyed

to David and Russell as joint tenants WROS, and that the Estate holds no interest

in the Properties; an order requiring the Estate to file a corrected Inventory

reflecting that it has no interest in the Properties; and an award of damages, costs,

and attorneys‘ fees.

On August 3, 2015, the Petitioner filed a Motion for Judgment on the

Pleadings. The Respondents filed a Cross-Motion for Judgment on the Pleadings

on September 9, 2015. After briefing, I heard oral argument on the cross-motions

on December 3, 2015, and asked for supplemental briefing, which is complete.15

This Opinion resolves those motions.

II. ANALYSIS

A. Legal Standard

The standard for judgment on the pleadings is well settled. Court of
14
Id.
15
Following oral argument, I asked the parties to submit supplemental letters to the Court
addressing whether the ability to break a joint tenancy through a ―straw-man conveyance‖ under
the common law arose before or after the earliest version of the language now included in 25
Del. C. § 701 was first adopted by the Delaware General Assembly.
5
Chancery Rule 12(c) provides that, ―[a]fter the pleadings are closed but within

such time as not to delay the trial, any party may move for judgment on the

pleadings.‖16 A motion for judgment on the pleadings may be granted only where

no material issue of fact exists, and where the moving party is entitled to judgment

as a matter of law.17 ―When there are cross-motions for judgment on the pleadings,

the [C]ourt must accept as true all of the non-moving party's well-pleaded factual

allegations and draw all reasonable inferences in favor of the non-moving party.‖18

A judgment on the pleadings ―is a proper framework for enforcing unambiguous

contracts,‖19 like those before the Court here, because there is ―no need to resolve

material disputes of fact.‖20

B. The Parties’ Contentions

The parties do not dispute any underlying facts regarding the Properties;

they disagree only as to the proper interpretation of 25 Del. C. § 701, and its

resulting effect on the parties‘ ownership interests in the Properties. Section 701

reads in full:

No estate, in joint tenancy, in lands, tenements or hereditaments shall
be held or claimed by or under any grant, devise or conveyance made

16
Ct. Ch. R. 12(c).
17
OSI Sys., Inc. v. Instrumentarium Corp., 892 A.2d 1086, 1090 (Del. Ch. 2006).
18
Id. (citation omitted). The Court may ―consider the unambiguous terms of exhibits attached to
the pleadings, including those incorporated by reference.‖ Id. (citation omitted).
19
Id. (quoting NBC Universal, Inc. v. Paxson Commc’ns Corp., 2005 WL 1038997, at *5 (Del.
Ch. Apr. 29, 2005)).
20
Cooper Tire & Rubber Co. v. Apollo (Mauritius) Holdings Pvt. Ltd., 2013 WL 5787958, at *3
(Del. Ch. Oct. 25, 2013) (quoting Lillis v. AT&T Corp., 904 A.2d 325, 329–30 (Del. Ch. 2006)).
6
 to any persons, other than to executors or trustees, unless the premises
therein mentioned are expressly granted, devised or conveyed to such
persons, to be held as joint tenants and not as tenants in common.21

Specifically at issue is whether or not Section 701 should be read to require that the

document of conveyance either quote the statutory language or, at minimum, recite

both positive language, granting the property in joint tenancy, and negative

language, stating that the property is not conveyed in tenancy in common, in order

to create a joint tenancy WROS.

The Petitioner argues that the Respondents mistakenly claim an interest in

the Properties by their assertion that the brothers owned the Properties as tenants in

common. By contrast, the Petitioner contends that, because the deeds expressly

state that Russell and David took the Properties as ―joint tenants with right of

survivorship,‖ the deeds unambiguously created joint tenancies WROS, and not

tenancies in common. He asserts that redundant negative language disavowing a

tenancy in common is not required—that is, that a ―right of survivorship‖ is so

clearly incompatible with a tenancy in common that Section 701, and the policy

behind it, is satisfied by the language in the deeds to the Properties. In the

alternative, the Petitioner contends that, regardless of whether the language ―joint

tenants with right of survivorship‖ is sufficient under Section 701 to create a joint

tenancy WROS instead of a tenancy in common, the ―survivorship‖ language

21
25 Del. C. § 701 (emphasis added).
7
cannot be ignored. Accordingly, the Petitioner asks the Court, at the least, to

interpret the deeds as conferring a tenancy in common for life, followed by a

contingent remainder in fee simple to the survivor. In either case, the Estate would

take no interest in the Properties.

The Respondents, on the other hand, argue that Delaware case law

demonstrates that both positive and negative language is required under Section

701 and that, even if such an interpretation leads to a result contrary to the parties‘

express intent, any change to the requirements of Section 701 is for the legislature,

not the judiciary, to initiate. Finally, the Respondents point out that ―joint

tenancy‖ is a term of art that implies a right of survivorship; they argue that the

General Assembly‘s requirement that documents of conveyance express that an

estate be held ―as joint tenants and not as tenants in common‖ necessarily requires

both positive and negative language to create a joint tenancy WROS. To not

require negative language, the Respondents contend, effectively reads the words

―not as tenants in common‖ out of the statute.

I address the parties‘ contentions below.

C. The Properties Were Conveyed to David and Russell as Joint Tenants
with Right of Survivorship

I look first to the explicit language of Section 701, and then to the policy

behind it, and find that the statute does not require both positive and negative

language where it is clear from the conveying language the type of tenancy the
8
parties intend to create. I then turn to the case law addressing Section 701 and find

no persuasive authority mandating the use of both positive and negative language

under this statute. For both of these reasons, I determine that the language in the

deeds conveying the Properties to the brothers ―as joint tenants with right of

survivorship‖ is sufficient under Section 701 to create joint tenancies WROS.

1. The Language of Section 701 Does Not Indicate that the General
Assembly Required Particular Words or an Explicit Negation of a
Tenancy in Common in Order to Create a Joint Tenancy with Right of
Survivorship

Section 701 provides that no estate in joint tenancy is created ―unless the

premises . . . are expressly granted, devised or conveyed . . . , to be held as joint

tenants and not as tenants in common.‖22 The statute could, but does not, include

required language within quotation marks or otherwise direct that specific statutory

language be used.23 Further, nothing on the face of the statute expressly requires

that the language of conveyance include an explicit rejection of a tenancy in

common in order to create a joint tenancy WROS. The statute simply requires that

the language ―expressly‖ convey the property in a way demonstrating that the

estate created is to be held in joint tenancy WROS, and not as a tenancy in

common.

22
Id.
23
See, e.g., id. at § 2221 (requiring deeds conveying condominium units to contain a specific
quoted provision included in the statute).
9
 2. The Policy Behind Section 701 is Not Served by Requiring Both
Positive and Negative Language

Relevant to this analysis are two types of joint ownership: joint tenancies

WROS and tenancies in common. Under a joint tenancy WROS, property is held

jointly by two or more persons, each ―regarded as the tenant of the whole for

purposes of tenure and survivorship, while for purposes of alienation and forfeiture

each has an undivided share only.‖24 ―Upon the death of one of the joint tenants

his interest does not descend to his heirs or pass under his will; the entire

ownership remains in the surviving joint tenant(s).‖25 To create a joint tenancy,

four ―unities‖ are required: unity of time, title, possession, and interest.26 A

cotenant may break a joint tenancy WROS by disturbing the unities of title and

time through a ―straw-man‖ conveyance, thereby creating a tenancy in common.27

A tenancy in common, by contrast, requires only the unity of possession;

each cotenant holds an equal right to possess the jointly held premises, so long as

24
2 Tiffany Real Prop. § 418 (3d ed. 2015).
25
Kurtz, Moynihan‘s Introduction, supra note 2, at 281.
26
E.g., Farmers Bank of State of Del. v. Howard, 258 A.2d 299, 301 (Del. Ch. 1969), aff'd in
part sub nom., Howard v. Farmers Bank , 268 A.2d 870 (Del. 1970). That is, ―joint tenants 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.‖ 2 Tiffany Real Prop. § 418 (3d
ed. 2015) (citations omitted).
27
A joint tenant WROS can disturb the unities of title and time, thereby breaking the joint
tenancy, through a straw-man conveyance: the original owner conveys her interest in the
property to a straw man, who then conveys the property back to the original owner; the result is a
tenancy in common. See, e.g., In re Ellingsworth, 266 A.2d 890, 891 (Del. Ch. 1970) ; see also
Kurtz, Moynihan‘s Introduction, supra note 2, at 282–83.
10
that possession is not to the exclusion of the other cotenants. 28 Unlike with a joint

tenancy WROS, ―since [the cotenants] hold separate interests, [they] need not have

equal shares in the property,‖ and need not obtain their titles simultaneously.29

Additionally, as tenancies in common do not include a right of survivorship, a

cotenant in common can leave her share to any beneficiary upon death.30

At common law, a transfer consistent with the four unities created a joint

tenancy WROS, unless the language of transfer specified a tenancy in common.31

However, by act of 1816, the Delaware General Assembly enacted a statute, which

contained the language that exists, near-verbatim, in current Section 701, and

which reversed the historical presumption from joint tenancies WROS to tenancies

in common.32 This shift reflected a general policy of the era to discourage

ownership under a form of tenancy—the joint tenancy WROS—that places

unpalatable restrictions on the alienability of property.33 To my mind, the

28
2 Tiffany Real Prop. § 426 (3d ed. 2015).
29
Id. (citation omitted).
30
Id. at § 427.
31
See supra note 1.
32
See Short v. Milby, 64 A.2d 36, 52 (Del. Ch. 1949) (―[J]oint tenancies are not favored and can
only be created by clear and definite language not reasonably capable of any different
construction.‖) (citations omitted).
33
See Orth, Joint Tenancies, supra note 2, at 428. I note, however, that it was possible, at the
time the earliest predecessor statute to Section 701 was established, to break a joint tenancy
through a straw-man conveyance. See id. (―A statute enacted during the reign of King Henry
VIII made joint tenancies partitionable by either joint tenant, making the interest of each joint
tenant alienable, although not inheritable or devisable because of the right of survivorship.‖)
(citing 31 Hen. 8, c. l (1539) (Eng.)). Because Delaware inherited English law as it existed at the
time of the Declaration of Independence, Claudio v. State, 585 A.2d 1278, 1291 (Del. 1991)
11
legislative intent is clear. By 1816, joint tenancy of estates in real property, with

survivorship, was disfavored; the intent of the legislature, expressed in the statute,

was to provide that, where there is ambiguity as to the type of joint estate created

by a deed or other instrument, the conveying language should be interpreted as

forming a tenancy in common, and not a joint tenancy WROS. The statute, I

presume, reflected an intent to reduce the incidence of creation of joint tenancies

WROS, and, importantly, to prevent the inadvertent creation of such an estate, by

default and to the unintended detriment of the heirs. However, in cases where the

language of the conveyance leaves no ambiguity as to the type of joint estate

intended by the parties, the legislative will as expressed by statute permits parties

to create a joint tenancy WROS. In such a case, where the language otherwise

unambiguously conveys a joint tenancy WROS, the legislative intent is satisfied,

and redundant language disclaiming a tenancy in common serves no function; the

parties have opted, as permitted by statute, for the more restrictive type of joint

ownership.

The conveying language here is unambiguous; the deeds convey the

Properties to Russell and David as ―joint tenants with right of survivorship.‖ All of

the parties acknowledge that tenancies in common do not allow for a right of

survivorship; of the two estates, that characteristic exists only with a joint tenancy

(citing Del. Const. art. 25 (1776)), the joint tenancy WROS has always been breakable as a
matter of Delaware law.
12
WROS. From a policy perspective, no legislative purpose is advanced by

requiring both positive and negative language, as it is clear from the language here

employed that the parties intended to create a joint tenancy WROS and not a

tenancy in common.

The Respondents make an argument based on the language of the statute.

They point out that the term ―joint tenancy‖ is understood to encompass a right of

survivorship incompatible with a tenancy in common.34 They argue that, by

requiring that conveying language express that an estate is to be held ―in joint

tenancy and not as tenants in common,‖ the General Assembly must have intended

to require both positive and negative language to create a joint tenancy WROS—

otherwise, the phrase ―and not as tenants in common‖ is mere surplusage. I note,

however, that the statute is in derivation of a common-law presumption in favor of

tenancies in common. The most likely explanation for the inclusion of the

language ―as joint tenants and not a tenants in common‖ is to provide clarity in this

departure from common law.35 Tellingly, the Respondents have provided no

explanation as to how the legislative purpose would be served by their proposed

statutory construction, the result of which would be that a clear expression of intent

34
See, e.g., Black‘s Law Dictionary 1313 (5th ed. 1979) (stating that a ―[j]oint tenancy‖ is ―[a]n
estate . . . arising by purchase or grant to two or more persons. . . . The primary incident of joint
tenancy is survivorship‖) (emphasis omitted).
35
In fact, the court in Cookman describes the language now embodied in Section 701 as a simple
reversal of the language recommended by Blackstone to negate the common-law presumption in
favor of joint tenancy WROS. Cookman, 2 A.2d at 167.
13
to form a joint tenancy WROS should fail, where the drafter neglected to include

what the Respondents themselves see as redundant negative language.36 In other

words, nothing in the language of the statute convinces me that explicit language

of negation is required where, as here, the language of conveyance leaves no doubt

that survivorship is intended and that the estates meant to be conveyed are joint

tenancies WROS and not tenancies in common.

I note further that the Respondents‘ reading of the statute would lead to an

absurd result here, inimical to the legislative intent as I understand it and have

expressed it above. In interpreting a contract, the Court must attempt to give effect

to all its terms, rendering no portion null or superfluous.37 Here, even were I to

find that the requirements of Section 701 have not been satisfied, I would still need

to read the deeds to give effect, if possible, to the phrase ―with right of

survivorship.‖ Such a reading—supposing that I find that the parties cannot have

intended a statutorily impermissible joint tenancy WROS—would indicate that the

36
The Petitioner advances its own argument based on the fact that ―joint tenancy‖ implies the
right of survivorship. In Davis v. Smith, discussed below, our Superior Court found a grant to
cotenants ―jointly, their heirs and assigns forever‖ insufficient to create a joint tenancy WROS
under the statute. 4 Del. 68, 68 (Del. Super. 1843). The Petitioner nonetheless posits that
because the term ―joint tenancy‖ implies a right of survivorship, operative language stating only
that the Properties were conveyed to the brothers ―as joint tenants‖ would be enough to satisfy
Section 701; the Petitioner argues that ―joint tenancy‖ is ―a long-standing term of art used
exclusively to refer to joint tenancies with the inherent right of survivorship, and never to refer to
tenancies in common.‖ In light of the actual language of conveyance here, I need not reach this
issue.
37
See, e.g., Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) (―[C]ourts must
read the contract in its entirety and give effect to all of its terms and provisions . . . .‖).
14
language of the deeds likely must be construed as creating concurrent life estates,

with contingent remainders in the survivor.38 This construction would create a

property interest that would appear permissible under Section 701, and that gives

effect to the provision ―with right of survivorship.‖ Creation of such an estate

based on the language here, however, would likely frustrate the very purpose of the

legislature: to discourage creation of an estate with limited alienability, but at the

same time, to allow parties to create such an estate where their intent is clear. A

life estate with contingent remainder implicates the same concerns as to

alienability and devisability as does a joint tenancy WROS, and creation of such an

estate is contrary to the intent expressed in the deeds. Such a result, so clearly at

odds with the policy behind Section 701, could not have been the intent of the

legislature in drafting this statute. Rather, the more sensible interpretation of the

―with right of survivorship‖ language is as I have determined above—that the

deeds instead convey a joint tenancy WROS.

38
See Kurtz, Moynihan‘s Introduction, supra note 2, at 279–80 (―Considerable litigation has
arisen where a conveyance does not track the statutory language, but it is claimed that the
language used manifests an intention to create a joint tenancy. Thus, if O conveys Blackacre to
‗B and C and to the survivors of them, his heirs and assigns‘ do B and C and take as joint tenants
in fee, or do B and C take a life estate as tenants in common with vested cross-remainders for
life, with a contingent remainder in fee in the survivor? Or, what if O conveys Blackacre ‘to B
and C as joint tenants and to the survivor of them, his heirs and assigns.’ Do B and C take as
joint tenants in fee, or as joint tenants for life with a contingent remainder in fee in the survivor?
Different answers have been given by the courts to these questions. The language of the
applicable statute may be controlling; but in the absence of controlling statutory language the
principal issue is whether the provision for survivorship in the conveyance expresses an intention
to create a joint tenancy or a contingent remainder in the survivor.‖) (emphasis added) (internal
citations omitted).
15
 3. Delaware Case Law Does Not Require Both Positive and Negative
Language Under Section 701

Neither party has presented any controlling case law addressing both the

precise language at issue in this case—―as joint tenants with right of

survivorship‖—and whether that language is sufficient under Section 701 to create

a joint tenancy WROS. After surveying the cases that apply Section 701 (or the

near-identical predecessor statutes thereto) to other conveying language, I do not

find any convincing authority for Respondents‘ position that Section 701 requires

both positive and negative language to create a joint tenancy WROS.

In Short v. Milby,39 this Court found that a conveyance to two individuals

―jointly and not as common tenants their Heirs and Assigns, forever‖ created a

joint tenancy. While this case involved both positive language—―jointly‖—and

negative language—―and not as common tenants‖—the Court indicated its view

that negative language is not necessarily required to establish a joint tenancy

WROS.40 Specifically, the Court expressed in dictum that, ―[i]t may be safer to use

the words of the statute . . . , but that is not absolutely essential if the grantor's

intent to create a [joint tenancy WROS] clearly appears from the language used.‖41

In a more recent decision by the Bankruptcy Court in In re Kelly,42 the court came

39
64 A.2d 36 (Del. Ch. 1949).
40
Id. at 38.
41
Id. (citations omitted).
42
289 B.R. 38 (Bankr. D. Del. 2003), aff'd, 316 B.R. 629 (D. Del. 2004) (emphasis added)
(citations omitted).
16
to a similar conclusion, finding that ―Delaware law mandates that the creation of a

joint tenancy be expressly stated or that the granting instrument ‗negatively state‘

that the persons holding the property are not tenants in common.‖43 While the

latter case is not binding authority here, I find the Bankruptcy Court‘s

interpretation sound in light of the discussion above concerning the policy behind

Section 701.

The cases proffered by the Respondents do not persuade me that Section 701

requires both positive and negative language. In Bullen v. Davies,44 for example,

the Delaware Supreme Court found that the deed in question, transferring property

to ―Dan L. Davies and Elsie M. Davies, his wife, George H. Bullen, Jr., and

Patricia D. Bullen, his wife‖ did ―not comply with 25 Del. C. § 701, prohibiting the

creation of a joint tenancy except by express words conveying as joint tenants and

not as tenants in common.‖45 The statement in Bullen simply tracks the statute,

without elucidation, and the holding is consistent with my decision here.

The Respondents also cite two Superior Court cases declining to find that a

joint tenancy WROS had been created as pertinent here. First, in Davis v. Smith,46

the Superior Court held that a devise to two individuals ―jointly, their heirs and
43
Id. at 42 (emphasis added). See also 2 Tiffany Real Prop. § 424 (3d ed. 2015) (―[I]t is not
necessary to use the exact words of the statute in order to show an intention to create a joint
tenancy. It is sufficient if the language employed be such as to show clearly and explicitly that
the parties intend that the lands are to pass in joint tenancy.‖) (citation omitted).
44
209 A.2d 81 (Del. 1965).
45
Id. at 83.
46
4 Del. 68 (Del. Super. 1843).
17
assigns forever‖ created a tenancy in common, and not a joint tenancy WROS.47

Second, in Doe ex dem. Hearn v. Cannon,48 the Superior Court recited the

language of the predecessor statute to Section 701, and found that a devise to two

individuals ―to be equally divided between them‖ was insufficient to create a joint

tenancy WROS.49 Both of these cases are distinguishable on the operative,

conveying language; here, the addition of ―with right of survivorship‖ makes

abundantly clear the type of tenancy being conveyed, unlike the simple

conveyances of property ―jointly‖ or ―to be equally divided‖ as at issue in Davis

and Hearn. Moreover, I note that neither of these cases expressly state that

negative language is required; in Davis, the court simply finds, without

lucubration, that the language of the devise creates a tenancy in common, and the

Hearn court only quotes the statute in reaching its result, and cites to Davis.50

Neither case directly addresses whether the statute requires negative language to

create a joint tenancy WROS. The holdings of these cases are not inconsistent

with my rationale here, for reasons expressed above.

The Respondents cite only two cases that state that both positive and

negative language are required to create a joint tenancy WROS under Section 701.

47
Id. at 68.
48
9 Del. 20 (Del. Super. 1869).
49
Id. at 25.
50
In Hearn, the court notes that the language that the parties there employed would not have
created a joint tenancy WROS, even under the common law. Id.
18
First, in Townsend Corp. of America v. Davidson,51 this Court considered a deed

conveying stock to a husband and wife ―as joint tenants,‖ and was charged with

deciding whether the property was conveyed as a joint tenancy WROS or as a

tenancy by the entireties.52 After noting that the statutory policy behind Section

701 was ―inapplicable‖ to the case before it, because the matter did not concern

tenancies in common, the Court then stated that ―[i]t is true that negative language

is called for by the statute in situations where there is a desire to create a joint

tenancy as opposed to a tenancy in common in real estate.‖53 The Court cited no

authority for the latter contention, which I note was dictum not pertinent to the

issue before it.

51
181 A.2d 219 (Del. Ch. 1962).
52
A tenancy by the entireties ―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.‖ 2 Tiffany Real Prop. § 430 (3d ed. 2015) (citations omitted).
Like a joint tenancy WROS, a tenancy by the entireties ―cannot be created unless the four
essential common law unities, namely, interest, title, time and possession, coexist.‖ Id. (citations
omitted). That is, a tenancy by the entireties ―though differing from a joint tenancy in some
particulars, as seizin, possibility of severance and the nature of the survivor's interest, is
essentially a form of joint tenancy [WROS] , modified by the common-law theory that husband
and wife are one person.‖ Id. (citations omitted). The most important of these distinctions
between joint tenancies WROS and tenancies by the entireties is that, in the case of the latter,
―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, nor by a sale under execution against such other.‖ Id. (citations omitted). Courts have
generally held that a conveyance to husband and wife that satisfies the four unities will create a
tenancy by the entireties, unless there is ―an intention, clearly expressed in the instrument, that
they shall take as tenants in common or as joint tenants.‖ Id. at § 431 (citing Godman v. Greer,
105 A. 380 (Del. Orphans‘ Ct. 1918) (holding that ―a devise of land to two persons then married
as tenants in common by express words makes them tenants in common and not tenants by the
entireties‖)).
53
Id. at 221.
19
 Similarly, in Pagliaro, Inc. v. Zimbo,54 the Superior Court considered a deed

to three individuals, two of whom were a married couple, ―as Joint Tenants with

Right of Survivorship, and not as Tenants in Common.‖55 Again, the issue was

whether, with respect to the couple, a tenancy by the entireties was created. The

Pagliaro court stated that ―[a]lthough the law requires negative language to create

a joint tenancy as opposed to a tenancy in common in real estate, . . . such negative

language is not required when creating a joint tenancy as opposed to a tenancy by

the entireties.‖56 In neither Pagliaro nor Townsend Corp. was Section 701 directly

at issue. Because neither court was required to carefully assess, as this Opinion

attempts to do, the language of or policy behind Section 701 as it applies to a

conveyance of realty as either a joint tenancy WROS or tenancy in common, I

decline to follow these cases.

D. Courts in Other Jurisdictions Have Arrived at the Same Conclusion as I
Do Here

Courts in other states, interpreting similar statutes, have adopted reasoning

consistent with mine here to arrive at the same result. The Supreme Court of

Illinois in Slater v. Gruger57 addressed, and rejected, a contention precisely like

that advanced by the Respondents here—that in order to create a joint tenancy

54
1987 WL 10275 (Del. Super. Apr. 16, 1987).
55
Id. at *2.
56
Id. (emphasis added).
57
46 N.E. 235 (Ill. 1897).
20
WROS, the Illinois statute (similar to our Section 701)58 required a deed to contain

both positive and negative language. The court found that the statute reflected the

legislature‘s disfavor of the right of survivorship, and that the object of the statute

is to require a clear and explicit showing that the property was not intended to pass

in tenancy in common, in order to create a joint tenancy WROS. Where the

intention to create a joint tenancy WROS is made clear by the language of the

instrument, the Slater court found, ―the particular phraseology employed‖ to

manifest this intention is not important.59 The deed at issue contained a granting

clause stating that the conveyance to the grantee was made ―in joint tenancy‖ and

defined the grantee as husband and wife ―and the survivor of them.‖60 The court

held that, by expressly stating that the conveyance was made ―in joint tenancy‖ and

by connecting that conveyance to a right of survivorship—a right that cannot exist

in a tenancy in common—the instrument had as ―completely negatived the creation

of an estate in tenancy in common as any words that could have been employed.‖61

Consistent with Slater, the New Jersey Court of Chancery, interpreting

58
Both 765 Ill. Comp. Stat. § 1005/1 and its predecessor—the statutes in question in Slater—
provide that no estate in joint tenancy shall be claimed under any conveyance ―unless the
premises therein mentioned shall expressly be thereby declared to pass not in tenancy in
common but in joint tenancy.‖ (emphasis added).
59
Slater, 46 N.E. at 237. Subsequent cases have followed Slater in reaching a similar result.
See, e.g., Engelbrecht v. Engelbrecht, 153 N.E. 827, 829 (Ill. 1926); Overheiser, 100 N.E. at 739;
McGrane v. Wiener, 49 N.Y.S.2d 23, 24 (N.Y. App. Div. 1944).
60
Slater, 46 N.E. at 236.
61
Id. at 237.
21
statutory language similar to our Section 701,62 reached the same conclusion: the

statute does not require explicit negation of a tenancy in common to create a joint

tenancy WROS. In Coudert v. Earl,63 the court reasoned that the purpose of the

statute was to prevent joint tenancies WROS from being inferred from the context

of the conveyance, and therefore required a ―direct and express assertion‖ to create

such an estate.64 However, the statute ―does not undertake to prescribe any

particular mode of language‖ to create a joint tenancy WROS.65 Accordingly,

language unambiguously conveying a joint tenancy WROS was sufficient to that

purpose under New Jersey law.66

For all the foregoing reasons, I find that the Properties were held by David

and Russell as joint tenants with right of survivorship.

E. The Parties Must Bear Their Own Legal Fees

The Petitioner seeks to shift his attorneys‘ fees to the Respondents. Under

the prevailing American Rule, parties bear their own costs of litigation.67 An

exception to that rule is that, where litigation is brought or conducted in bad faith,
62
N.J. Stat. Ann. § 46:3-17, and the predecessor statute thereto, both provide that
no estate shall be considered and adjudged to be an estate in joint tenancy, except
it be expressly set forth in the grant or devise creating such estate that it was or is
the intention of the parties to create an estate in joint tenancy and not an estate of
tenancy in common, any law, usage, or decision theretofore made, to the contrary
notwithstanding.
(emphasis added).
63
18 A. 220 (N.J. Ch. 1889).
64
Id. at 220.
65
Id.
66
Id.
67
Beck v. Atl. Coast PLC, 868 A.2d 840, 850 (Del Ch. 2005).
22
equity supports a shifting of fees from the innocent to the vexatious party.68 The

decision whether or not to shift attorneys‘ fees rests in the sound discretion of the

Court.69 Here, I do not find that Mackie, as executrix, acted in bad faith in seeking

to enforce a statutory right on behalf of Russell‘s Estate. The law surrounding

Section 701, as described at length above, was unsettled at the time this action was

brought; it was not only appropriate, but required in equity, for Mackie to attempt

to assemble and distribute the Estate in a way consistent with the law, and for the

benefit of the Estate‘s beneficiaries, even if that distribution was contrary to the

apparent intent of the parties to the deeds in question. Therefore, because I find no

special circumstances warranting a shifting of fees, each party bears its own costs

of litigation.

III. CONCLUSION

For the foregoing reasons, I find that language conveying property as ―joint

tenants with right of survivorship‖ is sufficient to create a joint tenancy WROS,

and not a tenancy in common, under 25 Del. C. § 701. Accordingly, the

Petitioner‘s Motion for Judgment on the Pleadings is granted, and the

Respondents‘ Cross-Motion for Judgment on the Pleadings is denied. The parties

should supply an appropriate form of order.

68
Id. at 850–51 (―The bad faith exception to the American Rule applies in cases where the court
finds litigation to have been brought in bad faith or finds that a party conducted the litigation
process itself in bad faith, thereby unjustifiably increasing the costs of litigation.‖)
69
Id. at 850.
23