dissenting.
Respectfully, I dissent.
Common law presumed a conveyance to two or more persons created a joint tenancy without requiring any specific words to that effect. Recently, however, because many jurisdictions do not favor joint tenancy, they have enacted legislation to discard or reverse the presumption. See, 20 Am-Jur2d, § 11, p. 102. In Kentucky, the General Assembly enacted KRS 381.120 which presumes a conveyance to two or more persons creates a tenancy-in-common, an estate without the right of survivorship. Stambaugh v. Stambaugh, 288 Ky. 491, 156 S.W.2d 827 (1941). Then, KRS 381.130 goes on to say “KRS 381.120 shall not apply ... when it manifestly appears, from the tenor of the instrument, that it was intended that the part of the one dying should belong to the other....” In other words, KRS 381.120 abolishes the right of survivorship recognized in joint estates at common law unless (under KRS 381.130) such right manifestly appears on the instrument. Osborne v. Hughes, 219 Ky. 116, 292 S.W. 748 (1927) and Stambaugh v. Stambaugh, supra.
These statutes place the burden on the grantor to expressly create an estate with a right of survivorship, a joint tenancy, by requiring specific language in the conveyance. They explain how one can create a joint tenancy, but they do not, however, change the nature of a joint tenancy as contended by the Majority Opinion. Thus the Majority Opinion has misconstrued the purpose and the effect of KRS 381.120 and .130.
At common law the nature of a joint tenancy included the right of a joint tenant to convey his interest, inter vivos, to a third party, and, if he did so the estate was changed to a tenancy-in-common because he destroyed his right of survivorship. See Rogers v. Grider, 31 Ky. (1 Dana) 242 (1833), cited in the Majority Opinion. See also 20 AmJur 2d, § 22, 48A C.J.S. §§ 16 and 17. This has not changed. The joint tenant continues to have the ability to destroy the right of survivorship, just as he could do at common law. The Majority Opinion recognizes that at common law in a joint tenancy “one joint tenant could destroy the right of survivorship of the other joint tenant, by way of a conveyance to a third party.”
The Majority errs in result because it mistakenly assumes the statutes have changed the nature of a joint tenancy as well as the presumption with regard to the existence of one.
This is not to say a grantor could not, in his conveyance, restrict the grantees’ rights to convey during their lifetime, but more is needed to do so than survivorship language which has the effect of creating a joint tenancy. That more which is needed is specific language in the conveyance creating the joint tenancy spelling out that no joint tenant shall convey his interest during his lifetime — an express restriction on the rights the joint tenant would otherwise possess. There is no such express restriction here.
Therefore, I dissent.
LAMBERT and WINTERSHEIMER, JJ., join this dissent.