{¶ 43} This case involves a matter of first impression for this court, to wit: What is the ownership status of unmarried grantees under a tenancy by the entireties deed?
{¶ 44} The lower court ruled that the unmarried grantees in this case held title as tenants in common. The majority reverses that decision. Some courts have followed the majority's approach. Beaton v.LaFord (1977), 79 Mich. App. 373, 261 N.W.2d 327; Young v. Young (1977),37 Md. App. 211, 376 A.2d 1151. Other courts have held that an attempted entireties conveyance to two persons as husband and wife, when they were not legally married, created a tenancy in common. In re Estate of Kapler (1983), 418 Mich. 237, 341 N.W.2d 113; Fuss v. Fuss (1977), 373 Mass. 445;368 N.E.2d 276. Since I find that the latter analysis is more appropriate, I respectfully dissent.
{¶ 45} Tenancy by the entireties is, in its fundamental essence, a marital issue. The gravamen of an estate by the entireties is the existence of, and continuation of, a marital relationship between the cotenants. Such an estate cannot arise from even the most explicit conveyance language to a man and woman who are not legally married to each other. Keller v. Porchey (Mo.App. 1977), 560 S.W.2d 257.
{¶ 46} In several jurisdictions, an attempted conveyance by the entireties defaults to the creation of tenants in common when the grantees are not legally married. Thurmond v. McGrath (1972),70 Misc. 2d 849, 334 N.Y.S.2d 917; Place v. Cundaro (1970), 34 A.D.2d 698,309 N.Y.S.2d 714; St. Pierre v. Estate of St. Pierre (1968), 381 Mich. 48,158 N.W.2d 891; Hildebrand v. Hildebrand (1966), 25 A.D.2d 698,268 N.Y.S.2d 44; Nottingham v. Denison (Fla. 1953), 63 So. 2d 269;Donnelly v. Donnelly (1951), 198 Md. 341, 84 A.2d 89; McKee v. Bevins (1917), 138 Tenn. 249, 197 S.W. 563. While there are cases in other jurisdictions to the contrary, the above referenced decisions provide persuasive arguments to support the conclusion that an entireties conveyance to unmarried grantees results in the grantees' holding title to the property so conveyed as tenants in common.
{¶ 47} In this case, title was transferred "to James Shelton and Mary Elizabeth Shelton, husband and wife ." (Emphasis added) By using those precise words, the grantor clearly attempted to create an estate by the entireties. See former R.C. 5302.17 (Eff. 11-22-73).
{¶ 48} Since the deed in this case could not create an estate by the entireties, the issue becomes the ownership status of the parties. Absent an express *Page 199 contract, the status devolves to tenants in common. Inre Estate of Snyder (Mo.App. 1994), 880 S.W.2d 596.
{¶ 49} The majority concludes that the deed, itself, evidences an intent to create a joint tenancy. However, the parties' only documented intent in this case was to create a survivorship interest in an estate bythe entireties. If the intent was simply to create a simple (non-entireties) survivorship interest, the words "estate by the entireties" and "husband and wife" were not necessary in the deed. The survivorship language in the deed heavily relied upon by the majority is simply the statutory language for creating a tenancy by the entireties with words of survivorship. Former R.C. 5302.17 prescribed the following statutory form of deed, which, when followed in substance, created an estate by the entireties:
ESTATE BY THE ENTIRETIES WITH SURVIVORSHIP DEED
"__________ (marital status), of __________ county, _______ for valuable consideration paid, grant(s), (covenants, if any), to ___ and ___, husband and wife, for their joint lives, remainder to the survivor of them, whose tax-mailing address is ___________, the following real property: (Description of land or interest therein and encumbrances, reservations, and exceptions, if any)
Prior Instrument Reference: Volume ___, Page _________ wife (husband) of the grantor, releases all rights of dower therein.
{¶ 50} Use of this statutory entireties deed form language (which includes words of survivorship as part of the entireties deed) further evidences the intent in this case to create a tenancy by the entireties.
{¶ 51} Unfortunately, the individuals who could provide evidence to any other intent in this case are deceased. There is no documented agreement between Mary Rowland and James Shelton in this case. To take a leap and transform the explicit entireties conveyance deed into a separate survivorship deed is legally and analytically incorrect. There must first be a valid, identifiable ownership interest between the parties as was the case in In re Hutchinson (1929), 120 Ohio St. 542, cited by the majority. A non-marital joint interest is a separately recognized common law contractual real estate interest. The parties in this case had a choice, and based on the evidence, their specific intent was to create a tenancy by the entireties, which they legally failed to accomplish.
{¶ 52} The majority's reliance on Hutchinson is misplaced.Hutchinson focuses on an agreement between a legally married couple regarding property they already owned. In the instant case, the majority focuses on the survivorship language while glossing over the issue of marital fraud. Hutchinson does not address marital fraud. Additionally,Hutchinson was issued 54 years before the *Page 200 statutory creation of tenancies by the entireties, and focuses on the devise of personal property (i.e. stock certificates).
{¶ 53} The probate court correctly ignored the superfluous statutory tenancy by the entireties form survivorship language contained in the deed. Since the parties were not married, they could not establish an estate by the entireties. Since the language found in the statutory entireties form of the deed creates only a tenancy by the entireties and does not create a joint tenancy with rights of survivorship, only one form of ownership is left, that of a tenancy in common. The probate court did not err when it ignored that entireties form survivorship language contained in the deed and ruled that a tenancy in common had been created.
{¶ 54} For the reasons discussed above, the probate court below was correct in holding that the deed for the Nash Road Property did not afford a right of survivorship to James K. Shelton. The lower court was correct in determining that the Estate of James K. Shelton did not include the entire interest in the Nash Road Property. The probate court's decision should be affirmed.