dissenting.
I respectfully dissent. The majority’s conclusion results from a mechanistic application of an arbitrary rule devised for other cases and offends the spirit, if not the letter, of statutes enacted by the General Assembly.
Under Code § 55-20, the interest of a “joint tenant” passes at death “as if he had been a tenant in common.” Yet, the legislature has not abolished the estate of joint tenancy; § 55-21 states that:
“The preceding section (§ 55-20) shall not apply to. .. an estate conveyed or devised to persons in their own right when it manifestly appears from the tenor of the instrument that it was intended the part of the one dying should then belong to the others.”
Thus, the fundamental issue in this case is whether “it manifestly appears from the tenor of the instrument that it was intended the part of the one dying should then belong to the others.” I believe such an intent so appears from the face of this deed.
While it is true that a tenant in common has no right of survivorship, it is also true that a survivorship interest is the interest distinguishing a joint tenancy from a tenancy in common. The use of the phrase “as tenants in common with the right of survivorship as at common law” was obviously an attempt, albeit inartful, to create a joint tenancy by appending a right of survivorship to a tenancy in common. Why would the words “with the right of survivorship as at common law” be used except to create a right of survivorship? In my view, the language the majority considers “surplusage” is the very language that manifests the intent that “the part of the one dying should then belong to the [survivor].”
Since the two parts of the phrase in dispute are reconcilable, the rule of Mills v. Embrey, 166 Va. 383, 186 S.E. 47 (1936), designed for cases involving two irreconcilably repugnant clauses, does not apply. Adhering to the rule prescribed by the legislature, I would affirm the chancellor’s construction of the deed.
HARRISON and COCHRAN, JJ., join in this dissent.