Transfer of Title by Death

by Gary Casaly, Esquire

Part I: Intestate Succession

Death, they say, is the end. But that’s not really true. Regardless of the religious or philosophical views one may hold, death is a beginning — it is the springboard from which the devolution or transfer of title to real estate jumps. How high the jump is, and the direction in which the springboard takes the title, depends on a number of factors, all of which need to be understood if an accurate tracing of the chain of title is to be made.

This article will discuss how death directs title. This will include some wholly-misunderstood rules concerning intestate succession and (in Part II of this article) a review of testamentary dispositions and then (in Part III) tenancies and some surprising court decisions and legislative enactments regarding them. One might wonder how it would be possible to fill up an entire article with this subject — after all, it would seem that just a few rules regarding intestate succession would cover everything — but as we shall see things are much more complicated than that. (In 2012 a whole new set of rules regarding inestate succession and the applicability of the provisions of will go into effect — the Uniform Probate Code — but the current article is important in analyzing titles that have or will devolve by reason of death before the new enactment takes effect.)

Spotting salient facts and understanding how the law is applied at any particular point in time is the first step in establishing questions of ownership to property upon death. In this regard, the law is always changing, so — because a title abstract is a “history” of a title back in time — it’s important to know what the law was and how it was applied to deaths that occurred during that historical window. For example, in Seavey v. O’Brien, 307 Mass. 33 (1940), a case that involved the devolution of property upon the death of a married, albeit childless, man the courts said, “[c]onfusion has crept into this case, partly because of a failure to distinguish clearly among the several classes of cases hereinbefore mentioned and among decisions with reference to them under statutes which have varied from time to time.” It is “confusion” of the application of the law that can lead to disaster when a title that is in fact good — or bad — is believed to be the exact opposite of what the law dictated at the time.

Just as lethal as confusion is a misunderstanding of the law. For example, some believe that a spouse’s “waiving” of a will results in the spouse receiving what he or she would have received if the testator had died intestate. This misunderstanding can lead to some serious repercussions, not to mention liability. I will attempt to dispose of some of the myths that swirl around probate and tenancy question in the various parts of this article, with the view of keeping everyone out of trouble.

Intestate Succession

I suppose a good place to start an article like this is with the subject of intestate succession. The basic statute on this subject is contained in G.L.c. 190, §§1-3. Section 1 tells us what the spouse inherits, if there is a spouse; section 2 addresses the question of personal property; and section 3 governs the descent of real property.

If there is a spouse, his or her inheritance is dealt with first by the statute. Section 1 states:

If the deceased leaves kindred and no issue, and it appears on determination by the probate court, as hereinafter provided, that the whole estate does not exceed two hundred thousand dollars in value, the surviving husband or wife shall take the whole thereof; otherwise such survivor shall take two hundred thousand dollars and one half of the remaining personal and one half of the remaining real property.

There are provisions in the statute for the sale of real estate to raise the $200,000, if necessary. There is also a provision for “notice” and a “hearing” for a determination of the valuation of the estate. And here lies the understanding of how the statute works. The fact that the decedent left no issue and that the estate is less than $200,000 does not result in the surviving spouse taking the entire estate. In order for the surviving spouse to take everything, there can be no issue and the court must enter a “decree” that the estate does not exceed the threshold amount. Counting up the values in the inventory is not enough; there has to be a court order, or “determination of value.” If the court determines that the value of the estate exceeds the threshold amount then the surviving spouse takes $200,000 in cash and a half interest in all the remaining real and personal property, with the remaining half interest devolving to other heirs according to the provisions of section 3, which will be discussed in detail in a bit.

An interesting effect in the application of this statute occurred in Green v. Gilmore, 331 Mass. 283 (1954). In Green, because the estate was valued and determined by decree to be less than $10,000 (the threshold amount at the time) the decedent’s widow was entitled to all of it. Under the will of a third person about $15,000 was, upon the widow’s husband’s death, to go to his heirs. The court held that the determination of value decree, that resulted in the widow taking all of her husband’s property, meant that she was his sole heir, and therefore entitled to all of the $15,000. Note that if the $15,000 had been included in the husband’s estate it would result in that estate exceeding the threshold amount, which in turn would have resulted in the widow sharing the estate, including the $15,000, with other next of kin. But since the $15,000 came from a third party and was for the benefit of the husband’s heirs, all other persons were excluded from sharing in the $15,000 gift.

There are two important “footnotes” to keep in mind with regard to the foregoing statute. The first “footnote” is found in Hite v. Hite, 301 Mass. 294 (1938). That case involved a nonresident decedent who had died in Ohio, but whose widow opened up an ancillary proceeding in Massachusetts and brought a petition for a determination of value, so as to take all the real and personal property in Massachusetts, which at the time did not exceed $5,000 in value.[1] The court said that another statute, G.L.c. 199, §1 governed the estates of nonresident decedents, which provides that:

[A nonresident intestate’s property] shall decent according to the laws of this commonwealth, and his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant.

The court said, “the statutes governing the administration of the estate of a non-resident decedent do not provide different rules of inheritance depending upon the size of the estate,” but rather simply provide that the property shall “descend” or be “distributed and disposed of” in accordance with the law of Massachusetts, in the case of real property, or as provided for in the domiciliary state of the decedent, in the case of personal property. Because G.L.c. 199, §1 includes the distribution of personal property, which is governed by the law of the foreign state, it’s impossible to apply the determination of value rule because that property that constitutes part of the estate is not subject to jurisdiction of the Massachusetts courts. Regarding this, Belknap, Newhall’s Settlement of Estates and Fiduciary Law in Massachusetts, Lawyers Cooperative Publishing Company (Fifth Edition, 1994), §8.1 states:

The result of these rules is that if a nonresident decedent leaves a surviving spouse but no issue, such survivor does not get $200,000 out of the real estate as provided under G.L.c. 190, §1. [Footnote omitted.] The only right of inheritance of such surviving spouse in Massachusetts real estate is that given by G.L.c. 199, §1, and this is a half interest (or the whole if there was neither issue nor kindred surviving without the $200,000).

The other “footnote” is to the fact that the statute is very much like, but still different from, that which governs the waiver of a will, G.L.c. 191, §15, with which sometimes it is confused. That statute provides that upon a timely waiver of the will the spouse will take one third of the deceased’s property where there are issue, but if there were no issue but only kindred the spouse will take $25,000 and half of the remainder of the property; except that in either case if the total amount received exceeds $25,000 the spouse will take that amount of cash and have a life estate in the share of the estate to which he or she is entitled.

This is the statute that was referred to briefly at the beginning of this article. Note its similarity, at least in phraseology, to G.L.c. 190, §1. The $25,000 figure has remained unchanged since 1964, and the low figure gives a surprising result: upon waiving the will in a “normal-sized” estate the surviving spouse would take $25,000 and a life estate (income or possession) in the remaining estate.

Of course, if there are issue then the spouse under the present law takes a half interest outright, and the issue take the other half. Previously, the “equation” used to be one-third for the spouse and two-thirds for the issue. Remember, however, that prior to 1902 the spouse took nothing by intestacy — the title went entirely to the issue or the next of kin. It’s unlikely — although it happens occasionally — that a title will be traced all the way back to the beginning of the twentieth century, but the point here is that the “rules change” when it comes to intestacy or the interpretation of wills due to statutory amendments, and it’s important to be mindful that these changes exist. For, to apply the law of “today” to the facts in a title of “yesterday,” can cause a multitude of problems.

So much for the rights of the surviving spouse.[2] The “core” provisions concerning inheritance as to real property[3] are contained in G.L.c. 190, §3. This section provides for the distribution of property after taking into account the rights of the spouse, if any. What’s left over, after any spouse’s share is distributed, is what this section addresses.

For the most part, §3 is straight forward. If a person dies intestate his property, subject to the aforementioned rights of the spouse, is distributed as follows:

1. If he leaves children, they take equally, and in the event that one or more of the children have predeceased the decedent, they take by “right of representation.”
2. If there is no surviving child, then title goes to “all his other lineal descendents,” with the caveat that if all such lineal descendents are “in the same degree of kindred,” they take equally; otherwise they take “according to the right of representation.”
3. If there are no issue, then title goes to the decedent’s father and mother, or the survivor of them.
4. If there is no issue and no surviving father or mother, then title goes to the decedent’s brothers and sisters, and to the issue of any deceased brother or sister by right of representation, and if there is no surviving brother or sister, then title goes “to all the issue of [the decedent’s] deceased’s brothers and sisters,” again with the proviso that “if all such issue are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise according to the right of representation.”

The above paragraphs spell out intestate succession as far as the statute brings it. Note that, except with respect to the situation where the decedent leaves only a father or mother, all other distributions provided for under the statute make provisions for a “right of representation” in the event that a member, but not all of the members of a class (i.e., children) have predeceased the decedent. Except for the paragraph at the end of the statute that deals with the “escheat” of title, there is one additional paragraph to the statute that must be observed. It states:

If [the decedent] leaves no issue, and no father, mother, brother, sister, and no issue of any deceased brother or sister, the [title shall go] to his next of kin in equal degree; but if there are two or more collateral kindred in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.

This last paragraph, though its application would be unlikely — most decedents have some issue, a father or mother, a brother or sister or a few nieces and nephews or grand-nieces or nephews running around — is drafted in an interesting manner. Note that after we’ve run out of brothers and sisters, and their issue, the concept of representation is no longer mentioned in the statute, nor is it the basis for distribution of property. At this point in the devolution of property, the concept of next of kin controls without regard to “representation” under deceased kindred. All that is necessary at this point is to calculate next of kin of the same degree and, if some of the kindred are of the same degree but claim under “an ancestor more remote,” eliminate them.

This would be an opportune time to comment on some of the terms that are mentioned in, and to which the statutes apply: terms such as “heirs,” “next of kin,” “kindred,” and distributions “per capita” and “by right of representation” or “per stirpes” should be understood in order to correctly determine how the statutes work. The term “heirs” refers to those who succeed to the decedent’s title upon intestacy. The term “kindred” simply refers to persons who are related to the intestate, while “next of kin” are the persons in that group that are the closest such relatives, as computed according to the civil law,[4] and who would take under the deceased when the group of “normal” heirs has been exhausted. A spouse is an heir (or more accurately, a “statutory heir”)[5] of the decedent, but is not included in the term “next of kin.” As to those who do inherit (heirs) they will take equally as a group (per capita) where they are all in the same degree in relation to the decedent. For example, where William dies intestate survived by his three children, Richard, Gary and John, those children will all share equally — per capita, or “per head.” (If William had a wife, her interest would first be disposed of.) If Gary has predeceased William and left two children of his own (grandchildren of William) then those two grandchildren would take (share) what Gary would have taken had Gary survived, and it said that they take “by right of representation,” or per stirpes, which means by “root” or “stock.” In this regard, you can see that different generations can simultaneously share in the decedent’s bounty. This “representation,” or as I call it sometimes, “substitution” rule applies where the class of persons involved are either the children or the siblings of the deceased, and one or more (but not all)[6] of the members of the class have died before the decedent. After that, representation disappears altogether and the “next of kin” take on equal footing, to the extent that they are of the same degree to the deceased, with the statutory rule, as noted above, that “those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.” The concept of “representation” or “substitution” no longer exists. But what does this language in the statute concerning next of kin mean, and how does this whole arrangement work?

Refer to the Degrees of Kindred chart. There you see a depiction of the degrees of kindred. (The next time you’re at a party listening about “second cousins,” or “”first cousins twice removed” you’ll know what’s being discussed!) The letter “D” stands for the deceased. Relatives who are connected to the deceased directly by a line running from the deceased to them (i.e., Child, Parent(s) and Sibling), and person claiming through these persons, are in the category of people to whom the rule of “representation” or “substitution” applies. For example, subject to the spouses distribution, if “D” dies with a child, the child will take all; if the child predeceased “D,” the persons claiming under the Child (e.g., the Grandchild) would “represent” the Child and take in lieu of the Child. Similarly, again subject to the spouse’s distribution, if “D” had no living children or parents, but did have brother or sister, that Sibling would take all; if the Sibling predeceased “D,” the persons claiming under the Sibling (e.g., the Nephew or Niece) would “represent” the Sibling and take in lieu of the Sibling. And this “representation” or “substitution” could filter down in each case to subsequent generations claiming under the same line depending upon the existence or failure of members in each generation.

But that’s it on representation. After we run out of Children, or issue generally, Father and Mother and Siblings, and persons claiming under the latter, we simply look at the chart and we (i) determine who are closest of kin (i.e. which kin are in the column at the top with the lowest number) and (ii) discard all such kin except for those claiming under the nearest ancestor.

Let’s take an example. Suppose “D” dies with no issue, no father or mother and no brothers or sisters or persons claiming under these siblings. However, “D” leaves behind a First Cousin and a Great Aunt. You’ll note that both of these persons are in Column 4, and therefore are of the same degree of kin to “D.” However, since the Cousin claims under “D’s” “nearest ancestor” (Grandparent, as opposed to Great Grandparent), the Cousin will take all. In the event that the Cousin had predeceased “D,” leaving the First Cousin Once Removed, this latter party would take nothing, because “representation” no longer applies; in such a case the Great Aunt would take all because she would be in the column with the lower number (4), while the First Cousin Once Removed would be in Column 5. If there are multiple persons in the same degree of kindred claiming under the nearest ancestor (i.e., if there were two brothers, both cousins to the deceased) they would share the inheritance.

That’s basically it on intestate succession. I’ll continue this article Parts II and III and cover wills and tenancies.

Source: Massachusetts Lawyers Diary and Manual (2007)

Part II: Testamentary Dispositions

Intestate succession, discussed in Part I, seems like a simple-enough thing. And it is, for the most part. Essentially, the state tells you where your property will go if you fail to say it in your own words. Now, I’m going to switch gears a little and discuss wills. I’m not going to discuss how to draft a will, but rather some interesting laws that can upset, change the application of, or even redirect testamentary dispositions under wills. I think you’ll be surprised by some of the strange things that can happen when certain laws are applied to what otherwise would be a simple testamentary disposition.

Do We Have a Will at All?

On my refrigerator at home is a little magnet. It says, “Where there's a will . . . I want to be in it!” It’s kind of cute . . . you’re expecting something else as the punch line. But “being in” a will presupposes that there is a will. In this regard, remember that a marriage will wholly revoke a will (unless there are recitations in the instrument that it was made in contemplation of the marriage), leaving the decedent to die intestate. Intestacy, as discussed before, will provide for the spouse, but not necessarily to the same degree that a will would have done. So, a simple “I do” can devastate one’s estate planning.

A divorce on the other hand will not revoke the entire instrument, but it will revoke those provisions that were made for the benefit of the spouse. (Apparently the legislature thought this rule might be a bit too harsh when the parties “fell back in love,” and the relevant statute tells us that provisions for the spouse that are revoked by reason of a divorce “shall be revived by the testator’s remarriage to the former spouse.”)

There are other ways to “not have a valid will” — like improper execution or not having the required witnesses, or tearing the instrument up in the backyard because you’re sick and tired of dealing with your relatives — but we don’t need to get into those issues right now. Suffice it to say that with no will intestacy will prevail. But sometimes there is “partial” intestacy, or at least an “unexpected” result upon the effect of the will based upon the manner in which it is witnessed. Where a beneficial devise or legacy is made to a subscribing witness or to the husband or wife of such witness the devise or legacy is void unless there are two other subscribing witnesses to the will who are not similarly benefited thereunder. If there is a residuary clause that can “catch” the voided gift, it will fall into that residue and be distributed thereunder (but not to the witness or spouse if also named therein); otherwise it will pass by intestacy.

Waiver of Will

Assuming we have a valid will, and the gifts thereunder are not voided either by reason of divorce or on account of who the subscribing witnesses were, let’s start the journey concerning testamentary dispositions with the spouse’s right to waive a will. I briefly referred to this right at the beginning of this article. If ever there was a concept more poorly understood, it is the subject of waiving the will. Its misunderstanding stems from the fact that at one time the misunderstanding was correct, but no more. What’s entailed in waiving the will, what does it accomplish, and what’s the big misunderstanding about it?

Within six months of the probate of a will the surviving spouse is entitled to “waive” it. The documentation is a simple waiver, signed by the surviving spouse and filed with the probate court within the applicable period.

Why would a surviving spouse want to waive a will, and is it a good idea or ill-advised? These questions can only be answered within context. A hypothetical will provide the context that we need.

A widow has been substantially cut out of her deceased husband’s will: although he died with an estate of about $3,000,000 the husband gave his wife only $150,000 and gave the rest to the children of his first marriage. Because it was a second marriage the husband felt that this was fair and that his offspring should be the primary beneficiaries of his estate.

The widow is unhappy with this result and considers waiving the will. Is this a good idea?

The decision to waive the will depends upon what results that action will succeed in accomplishing. Some conveyancers think that waiving the deceased partner’s will results in the surviving spouse succeeding to the same amount of property that he or she would have succeeded to had the deceased spouse died intestate. If this conception were correct then waiving the will would be the obvious avenue that the widow should pursue because she would thereupon succeed to one half of the deceased partner's estate, or in this case $1,500,000, which would be ten times more than she would have taken under the will. But the conception is wrong! A reading of the relevant statute, G.L.c. 191, §15, bears this out. The statute presently says:

The surviving husband or wife of a deceased person . . . within six months after the probate of the will of such deceased, may . . . [waive] any provisions that may have been made in it for him or her . . . and if the deceased left issue, he or she shall thereupon take one third of the personal and one third of the real property; and if the deceased left kindred but no issue, he or she shall take twenty-five thousand dollars and one half of the remaining personal and one half of the remaining real property; except that in either case if he or she would thus take real and personal property in an amount exceeding twenty-five thousand dollars in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased.

A close reading of the above statute clearly indicates that the surviving spouse does not take an intestacy share. Although it is true that prior to 1957 the surviving spouse (subject to certain limitations) was entitled upon waiving the will to take what he or she would have taken had the deceased spouse died intestate, that belief fails to take into account the various amendments to the statute since then. The statute was substantially revamped in 1957 and, due to the fact that it has not been amended to keep pace with the intestacy statute (except once in 1964), the effect has resulted in a significant disparity in the distribution of an estate in the case of intestacy and in the case of the waiver of the will. First, because there are children in this case, the amount the surviving spouse would be entitled to take if the will is waived is capped at one-third, while under the situation of intestacy he or she would presently share in one-half of the estate. (If there were no children, but only next of kin along with the spouse, the spouse would be entitled to $25,000 plus one-half of the remainder of the estate, while under the intestacy laws in such a case the spouse would be entitled to $200,000 plus one-half of such remainder.)

Second, in the case of intestacy the interest acquired is an absolute one, while in the case of the waiver of a will the distribution is partially outright and partially in the form of a life interest.

The tables below illustrate the differences.

Spouse’s Share Where There are Issue

Intestacy	Waiver of the Will
One Half of the Estate	One Third of the Estate
Absolute Interest Acquired	$25,000 Outright and Life Interest in Remainder

Spouse’s Share Where There are
No Issue But Next of Kin

Intestacy	Waiver of the Will
$200,000 Plus Half of Remaining Real and Personal Property	Half of the Estate
Absolute Interest Acquired	$25,000 Outright and Life Interest in Remainder

The waiver of the will gives a somewhat surprising result as to the interest that the surviving spouse takes. But the waiver has other consequences. In Belknap, Newhall’s Settlement of Estates and Fiduciary Law in Massachusetts, Lawyers Cooperative Publishing Company (Fifth Edition, 1994), §20:3 the author summarizes these consequences in an almost poetic way:

It is in the havoc that it works on the rest of the will that the devastating effects of a waiver become apparent. Where the testator has set up a complicated framework for distributing the estate, a waiver by the surviving spouse completely upsets it and leaves only shattered fragments to be reassembled by the court.

Pretermitted Children

The question of pretermitted children in the situation of a will is governed by G.L.c. 191, §20. And although there is a one-year limitation imposed upon the issue to make their claim within that period or be barred thereafter from doing so (see Chapter 479 of the Acts of 1969, effective in 1971), it seems that the issue generally is addressed by Massachusetts Conveyancers' Association Title Standard No. 50.

A pretermitted (or omitted) child or issue of a deceased child will take what the child (or issue) would have taken if the testator had died intestate.

When would a child (or such issue) be considered “pretermitted”? The fact that a child is not mentioned in a will does not mean that the child is a pretermitted child entitled to take under the statute. The omission, if “intentional and not occasioned by accident or mistake” will prevent that child from taking under the statute. The “accident or mistake” that the statute contemplates is that committed during or associated with the transcription of the will. A mistake of fact or law — for example, a belief that the child is dead — will not result in the omitted child taking under the statute. The mistake must be in the preparation of the instrument itself and not in the gathering of the information necessary to draft it.

Class Gifts

Class gifts in a will can also redirect where title goes upon death. Spotting a class gift in the will and knowing how the law is applied to it is sometimes not that obvious. For example, in Cross, v. Cross, 324 Mass. 186, 85 N.E.2d 325 (1949) a devise to “my son Thomas . . . and to my son William . . . share and share alike, or to the survivor of them” was deemed to create a tenancy in common between Thomas and William, who both survived the testator, with the court noting that the words “to the survivor of them” did not create a joint tenancy but were used in the will to indicate a class gift:

[The respondents] argue that the testator’s words are appropriate for the creation of a joint tenancy, and that at [the testator’s] death Thomas and William became vested with a remainder as joint tenants. We cannot adopt this argument. To begin with, the expression ‘share and share alike,’ standing alone, would create a tenancy in common. [Citations omitted.] The general principal being that a will speaks as of the time of the testator’s death, [citations omitted] we think that the purpose of the later words ‘or to the survivor of them’ was to provide for the contingency where only one son might be living at that time. In such case the surviving son was to take all.

It is important to note that in Cross the individuals — Thomas and William — were mentioned by name in the will. This ordinarily would discount the possibility of a class gift. However, the language “to the survivor of them” was latched on by the court to find that a class gift existed. But the subject of class gifts can take an interesting twist, particularly when the gift appears in the residuary clause, even where the residuary devisees are identified by name and the “survivor” language is absent. A determination of where the title goes in such a case depends on a consideration of multiple factors. First, if the deceased residuary devisee is a child or other blood relation to the testator, and that person leaves issue surviving the testator, G..L.c. 191, §22 will control the situation. That statute says this:

If a devise or legacy is made to a child or other relation of the testator, who dies before the testator, but leaves issue surviving the testator, such issue shall, unless a different disposition is made or required by the will, take the same estate which the person whose issue they are would have taken if he had survived the testator.

This statute will trump all situations and will force the title down to the issue of the deceased person, even if the devisees are considered to be a class. But what if G.L.c. 191, §22 is not applicable? What happens to the gift then? Where does the title go? G.L.c. 191, §1A(5) seems to provide the answer. It says:

Where there is a residuary gift to two or more legatees or devisees and the share of one or more of them totally fails for any reason, such share or shares shall pass to the other residuary legatees or devisees proportionately.

This statute is in response to court decisions that had held that a devise in the residuary clause to multiple persons that failed because it was not covered by G.L.c. 191, §22 and was not a gift to a class would go by intestacy. (If the failed gift was in another section of the will then it would fall into the residuary clause, but if the gift itself is in the residuary clause it has nowhere to “fall” except into intestacy.) In effect the statute makes all residuary gifts class gifts, whether the beneficiaries are specified by name or simply identified and characterized as a group. But watch it here! The statute was not enacted until the 1970’s and therefore would apply only to wills probated thereafter. Wills probated before that time would be governed by the prior law.

The provisions of G.L.c. 191, §22 can creep into a title in another way and whisk the title in a different direction, virtually unnoticed. Let’s take the simple (or maybe not so simple) question of a disclaimer under a will, which is governed by G.L.c. 191A. I won’t endeavor to examine disclaimers in depth here (that’s the subject of another article on the horizon), but one example of the disclaimer statute’s impact, when coupled with G.L.c. 191, §22 may surprise you. Imagine a will that states that A, B and C will get the testator’s bounty upon his death. All three beneficiaries survive the testator, but A disclaims his gift. The “knee-jerk” reaction might be that A’s action results in B and C sharing the gift between themselves. This may be the case; but it may not. G.L.c. 191A, § 7 tells us that (with certain exceptions):

Such [disclaimed] interest shall pass in the same manner as if the beneficiary had died immediately preceding the event determining that he, she or it is the beneficiary of such interest, and that such interest is indefeasibly vested. The interest in property disclaimed shall never vest in the beneficiary.

Note that the statute does not state that the property shall be divided up as though the beneficiary never existed; it states that the title is distributed as though the beneficiary immediately predeceased the testator (or, more accurately, the “event” that determines that title is vested). If A in our example had children and A was a “blood relation” of the testator A's title would not inure to B and C, but rather A’s issue. A’s issue, however, would not be listed in the testator’s petition for probate because, although they take by reason of the disclaimer statute, they are not “heirs” of the testator. An affidavit identifying them would likely resolve the problem, but spotting the problem in the first place is just another twist.

Remainders

Many times a will contains a provision something like this: “I leave my property to X, and upon her death to Y and Z, share and share alike.” Where’s the title? One suggested reading of the provision, particularly based upon the use of the language that “upon her death” title shall go to Y and Z, is that title is in abeyance — that is, X has the life estate but Y and Z must “wait” for X to die before succeeding to their gift. Is this the right interpretation? In other words during X’s life do Y and Z have anything to sell? The answer is “yes.” Remainders are generally deemed vested and, when they follow a life estate, are generally not considered to be postponed until the time of the termination of that estate. In this regard, it is said in Newhall, Settlement of Estates, The Lawyers Cooperative Publishing Company, (Fourth Edition, 1958), §356:

Such phrases as “at her decease” or “upon her decease” and similar phrases referring to the taking effect of the remainder, are held to refer to the time of distribution rather that the time of vesting.

So, too, it is said in Moynihan, Introduction to the Law of Real Property, West Publishing Company (1962), Chapter 5, Section 17:

Words which are conditional in form but which express nothing more than the law implies will not make the remainder contingent. Thus, if A devises to B for life and from and after B’s death to C in fee it might be argued that B’s death is a condition precedent to C’s remainder. But the words “from and after” are construed to refer to the time of enjoyment of possession by C, not to the time of the vesting of C’s interest. The courts universally apply a presumption in favor of construing a limitation as creating a vested rather than a contingent interest, and also a presumption in favor of early vesting rather than late vesting. Hence, when an instrument creates a life estate in B and then provides for a remainder in C “at B’s death,” or “when B dies,” or “in the event of B’s death” such language will not be construed as making the remainder contingent.

Baggage

We’ve seen how death can redirect title. But when title ends up where it ultimately goes it sometimes has “baggage” accompanying it. Like a suitcase, this baggage has to be “unpacked” or the traveler (in this case the title) will be weighed down. This baggage consists of the following pieces of luggage:

• Death tax liens – state and federal
• Rights of creditors – both of the deceased and those generated by the estate
• Rights of legatees

Death tax liens are gone after ten years. They can be disposed of earlier by way of releases, affidavits or, in certain cases, proof of payment of the tax due. The releases are in the form of the 792 (federal) or M-792 (state). The affidavits are sanctioned by statute (G.L.c. 65C, §14 or Title Standard (Nos. 3 and 24). For deaths occurring between January 1, 1997 and December 31, 2002, the period during which Massachusetts estate tax was “coupled” with the federal estate tax, it was necessary for the affidavit simply to declare that no federal estate tax return was required to be filed; for deaths on or after January 1, 2003, the affidavit must state that there is no requirement for the filing of either a federal or Massachusetts estate tax return.

Another way of addressing the death tax lien is to demonstrate that the tax shown on an estate closing letter has been paid. In the case of federal taxes this is done by filing the original cleared check (or a copy and an affidavit) in the amount shown on the estate tax closing letter. See Title Standard No. 3. In the case of state estate taxes the requirement is the same, except that the applicable title standard (No. 24) also imposes a requirement that the property be listed in the probate inventory.

There are two special rules that should be mentioned regarding the elimination of estate tax liens on particular pieces of property. On the federal level, property that is transferred by a survivng joint tenant (or tenant by the entirety) after the other joint tenant has died will be divested of the estate tax lien. This rule does not apply to property passing through probate. See the discussion in Fall River Savings Bank v. Callahan 18 Mass.App.Ct. 76, 463 N.E.2d 555 (1984).

On the state level, and in connection with what has been commonly referred to as gifts in contemplation of death, where a person conveys property to another and the deed is recorded before the grantor’s death and does not disclose “an intention that [the conveyance] take effect in possession or enjoyment at or after the [the grantor’s] death,” the lien arising by reason of the grantor’s subsequent death will be divested as to that property when the transferee conveys to a bona fide purchaser for adequate consideration. See G.L.c. 65C, §14 and Title Standard No. 24.

The rights of creditors in connection with the estate of the deceased must be examined on two levels: the creditors of the deceased (persons the deceased owed money to) and the creditors generated by the estate (persons servicing the estate, such as lawyers, accountants and personal representatives). The first category, at least as to deaths after January 1990, is disposed of (i.e., time-barred) one year after date of death (before then, one year after the bond was filed). There’s one exception to this rule: Claims for medical assistance (Medicaid) can be filed within the one-year period or within four months of the giving of the fiduciary’s bond.

The creditors in the second category, which includes those persons servicing the estate, have a longer period in which to file claims and the period begins at a later time. This second category is many times overlooked. Essentially, these creditors have a period of six years from the giving of the bond to file their claims. This makes sense, of course, because they’re servicing the estate and, unlike creditors of the deceased, have no idea what their claims will be until a longer period of time has expired. Like other creditors, these creditors can force a sale of property, even if it has been conveyed to a purchaser. See G.L.c. 202, §20A. In any event, the threat that these claimants pose can be eliminated by filing and having approved a final account in the estate.

Another bit of baggage that can weigh down a title to real estate coming through a will comes in the form of legacies. These are pecuniary gifts, generally of money, that are scattered throughout the will. Under G.L.c. 197, §17 there is no time limit within which a proceeding can be brought to enforce the right to a legacy, but the statute states that “the real estate of the testator shall not be liable to be sold for the payment of a legacy by the executor or other representative of the estate either under a power in the will or under license or order of court, or as a result of, such proceeding unless it is filed in the probate court within six years of the testator’s death.” Again, and somewhat similar to the claims by creditors created by the estate, a six-year period is set aside during which proceedings that could have an impact on the title to real estate can be instituted. The six-year period here runs from the time of the testator’s death, as opposed to the filing of the fiduciary’s bond. In any event, during this period the title to real estate is vulnerable, so it is important to establish that the legacies have been paid, which is generally accomplished by the filing and allowance of a final account.

Unloading the Baggage

With all of this baggage, how can one deal with real estate during these waiting periods that occur while the estate is being administered? One method is by filing and getting allowed a final account. This is not always practicable, or possible, because some claims against and rights in the estate cannot be finalized early on in the administration of the estate. For example, while attorneys and accountants and other servicers of the estate are performing their tasks they are unable to determine what their charges will be. It’s sort of a chicken-and-egg thing: we need to get a final account allowed in order to bypass the unexpired periods during which claims and proceedings against the estate can be made, but we can’t pay them (and therefore get an accounting as to them) because they are not yet liquidated amounts.

The chicken-and-egg loop can be broken by obtaining either a license from the court permitting a sale of real estate or employing a power of sale in the will, if there is one. Either of these methods will insulate the title to the real estate from these potential impediments, and will essentially “unload the baggage.”

Licenses to Sell

Although there are various ways in which to obtain court approval for the sale of real estate, there are essentially two types of licenses to sell. One, the most familiar, is that which the court issues pursuant to G.L.c. 202, §19. This statute, states:

The probate court may, upon the petition of an administrator, administrator with the will annexed, or executor filed within one year after the date of the giving of the executor’s or administrator’s bond . . . license him to sell the whole are any part of the real estate or any undivided interest therein belonging to the estate of the deceased, in such manner and upon such notice as the court orders . . . .

A license issued under this statute is a general license to sell. Technically, its issuance is not conditional upon a particular set of circumstances (although the court can impose them). Note the one-year limitation during which the petition for the license must be filed. The license is sought in cases where it is advantageous to “move” real estate immediately after the estate has been opened. This one-year limitation should not be confused with the one contained in G.L.c. 204, §8 that provides that no license “shall be in force for more than one year.” The limitation in the first statute addresses when the license can be applied for; the limitation in the second statute governs when the license, once issued, can be exercised. The second statute, as we shall see, gets confused sometimes with the exercise of a power of sale under the will itself. I will address — and hopefully dispel — this confusion in the discussion below concerning powers of sale.

The other main statute under which a license could be issued is G.L.c. 202, §1. This statute does not contain any limitation on the time during which the license can be petitioned for. It is a license that is sought and can be issued “if the personal property of a deceased person is insufficient to pay his debts, legacies and charges of administration.” So, when we say “you can’t get a license after the first year,” the statement is not entirely true, where a license under this second statute is the type for which the petition is made.

A few things should be said about licenses, both of which revolve around the protection they provide, particularly in connection with liability of the administrator or executor who seeks them. First, G.L.c. 215, §9A states that if no appearance or objection was made against the granting of the license to sell, or if one was made but was later withdrawn, “[t]he acts of an executor . . . performed after the entry of the decree . . . authorizing him to sell . . . shall be valid to the same extent as if said appeal period had expired without an appeal . . . .” This statute prevents upsetting the acts taken pursuant to a license even if a later appeal overturns it.

Second, another statute, G.L.c. 202, §38, eliminates a dilemma that an executor or administrator faces when selling property of the estate. The dilemma was highlighted in Onanian v. Leggat, 2 Mass.App.Ct 623, 317 N.E.2d 823 (1974), where an executor, who agreed to sell the decedent’s real property to a person for a certain price subject to the issuance of a license to sell, was not excused, by virtue of executor’s duty of obtaining the highest possible price, from performing on such agreement when a higher offer was received. The executor found himself “between a rock and a hard place”: If he honored the contract he’d be sued by the devisees who insisted that the higher offer be pursued; if he accepted the higher offer he’d be sued by the purchaser under the agreement.

Two years after Onanian the legislature passed the statute, that provides:

After the entry of a decree authorizing or licensing an executor, administrator, guardian , conservator or trustee to sell real estate at a public or private sale, provided: (a) the notice of the petition for license to sell real estate and of the time and place appointed for hearing, the same shall have been given by publication at such times and in such newspapers as the court orders, and (b) there shall have been no appearance entered against such sale prior to the entry of the decree or where such appearance shall have been entered and withdrawn prior to the entry of the decree, notwithstanding the fact that an appeal may have been taken prior to the expiration of the period allowed for an appeal therefrom, it shall be conclusively presumed that the amount of the advantageous offer stated in said petition for license to sell real estate is the highest possible price obtainable for the real estate described in such petition and that the executor, administrator, guardian, conservator, or trustee has fully satisfied his fiduciary duty to obtain the highest possible price for such real estate.

A sale made under a license cannot thereafter be assailed as having failed to bring the highest price possible. It should be noted that neither Onanian nor the statute have anything to do with the baggage — the title is protected whether sold under license or pursuant to a power of sale — but rather with the personal liability of the fiduciary.

Power of Sale under Will

This brings us directly to the question of sales made pursuant to a power of sale in a will. One might wonder at the outset why a power of sale in a will would be exercised when, by obtaining a license, the same result is achieved and additional protections, discussed above, inure. First of all, it has been said that “it is considered a good reason for refusing such license, that the power already exists [in the will].” Going v. Emry, 16 Pick. 107. Second, as noted, sales under a general license are limited to specified statutory time periods. So sales under a power become important to understand.

Two famous letters in 1912 between George A. Sawyer and John C. Gray discussed powers of sale in a will. Essentially, Mr. Sawyer posed three questions to Mr. Gray:

1. Does the deed of an executor under a general power of sale convey a good title to land, free from the claims of creditors of the estate and of persons claiming under the will?
2. Can the executor exercise the power even if there is sufficient personal property on hand to pay debts and legacies?
3. Can the power be exercised after the period for which a license to sell can be obtained?

Mr. Gray answered all questions in the affirmative. These correspondences have since been cited by courts and other authorities to validate sales under such powers. Mentioning the letters here is of historical significance, but some the specific aspects of the power of sale in a will must be more fully explored.

First and foremost, if there is no power to sell, the fiduciary cannot make a sale without a license. The situations of “no power” would exist in the case of an administrator — there’s no will — and where the executor is not vested with such a power — there’s none in the will. So where we see a fiduciary making such a sale we must first find the power under which he or she is acting.

Once we find the power — if there is one — we need to see what it says. If the power permits the fiduciary to “sell” this does not include the power to mortgage. Loring v. Brodie, 134 Mass. 453. If the power includes the authority to sell, that does not permit the fiduciary to give the property away. Clune v. Norton, 306 Mass. 324. Sometimes, however, there is a power of sale, but words as such are not so used. For example, ordinarily one sees language that pulls no punches and states flat out that the fiduciary has a power to “sell.” But other language will also confer a power to sell upon the fiduciary. The classic phrase is “invest and reinvest,” but other verbiage, stating that the property is “to be invested,” or authorizing the fiduciary to “manage and invest” has been held to also include a power of sale as well. See Boston Safe Deposit & Trust Co. v. Mixter, 146 Mass. 100, 15 N.E. 141 (1888), Harvard College v. Weld, 159 Mass. 114, 34 N.E. 175 (1893). Language that the trustee has “powers of investment” would likewise include a power to sell.

Once language is found that supports the power the questions comes down to its exercise. One question is how long does the power endure? Technically, a power of sale contained in a will is unlimited in time.[7] However, there are circumstances where the power can be considered “stale” or exhausted. For example, if a final account has been filed and allowed in the estate of the decedent it is generally agreed among conveyancers that the power of sale has thereby terminated as it is evident that its purposes have been fulfilled. In this regard, it is said in Crocker’s Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §923:

It has ordinarily been assumed that, in the absence of special provisions, and executor’s power to sell is for the payment of debts, expenses of administration or taxes and that the power continues until such have been paid. [Citations omitted.] The above cases show the desirability of obtaining a release of power in appropriate cases, where, for instance, no final account shows payment of such matters.

Moreover, some commentators have suggested that the power is limited to, and can be exercised only in connection with (and will expire upon) the payment of debts, expenses of administration, death taxes or distribution regarding the estate, and cannot be utilized merely to strip devisees of their title. See Park, Massachusetts Practice, Real Estate Law, with Forms, West Publishing Co. (Second Edition, 1981), §748 and Crocker, Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §923. On this principal it could be stated that even in an estate where no final account has been allowed the power would lapse if a significant period of time — the period during which such debts, expenses of administration, death taxes must be paid — has expired. It has been held, however, that a power of sale might last as long as twelve[8] or fifteen[9] or even twenty-six[10] years, but in each case there were specific reasons for these decisions — primarily the fact that the testator’s will required such a conclusion. The point is that the one-year period that applies to licenses does not apply to powers of sale under the will.

Once we determine whether there’s a power and how it can be exercised, we have an ancillary question — who can exercise it? The question seems almost perplexing, for the “obvious” answer is the executor. However, there might be a successor or substitute fiduciary and the question becomes whether they can exercise the power to sell. The law is set out in Mayberry v. Carey, 268 Mass. 255, 167 N.E. 281 (1929):

The general rule is, that the duties of an executor, resulting from the nature of his office, and charged upon him as executor, devolve on an administrator cum testamento annexo [with the will annexed], where the authority is not necessarily connected with a personal trust or confidence resposed (sic) in him by the testator.

In Mayberry the testator's will gave the executor a power to sell and contained the following language: “Whenever in this will I have used the word 'executors,' I include their survivor, and the remaining sole executor in case one does not qualify, and any administrator or administrators with the will annexed.” However, it does appear that the court gave any particular weight to this language, and it would appear that such language is unnecessary in order for the successor fiduciary to be vested with the power.

Also, if there are multiple executors and one of them dies or resigns the powers will vest in the remaining fiduciaries, unless the will provides otherwise. Park, Massachusetts Practice Real Estate Law, with Forms, Section 748, states:

When a power of sale is given to an executor in a will, the power attaches to the office, and can be exercised by the executors or the survivor of them until the purposes for which was given are effectuated . . . . (Emphasis added).

What if the executor makes the sale but fails to mention the power in the will under which he or she is acting? In Gould v. Mather, 104 Mass. 283 (1870) a deed from an executrix did not specifically mention the power, though it was contained in the will. The court said that the execution of the power is purely a question of intention and the intention is to be gathered from the whole instrument. The court said:

All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it shall appear by words, acts or deeds, demonstrating the intention. (Citation omitted.) [The executrix] in this deed professes to convey land which belonged to the estate of Ozias H. Mather. She does it in the capacity of executrix of his last will, which is equivalent to saying that she is acting under his last will and refers to that will as containing the authority under which she acts.

As indicated in the famous letters between George A. Sawyer and John C. Gray, a sale under a power contained in a will “insulates” the title from the claims of creditors — even those who have filed claims in the estate — and also will protect it from the rights of persons claiming under the will. This is an interesting point. A will, of course, speaks as of, and is effective upon, death. A gift in the will to a devisee vests title instantly in that person upon death (although a probate is necessary to “prove” that the will is in fact the last will and testament). So, in exercising a power of sale in a will (or for that matter, acting under a license to sell) the executor essentially strips title from the devisee (as well as protecting it from creditors and claims of legatees). The devisee, of course, cannot complain because the gift is subject to the paramount power that the testator included in the will, but the concept sometimes doesn’t “sit well” with conveyancers. Sometimes the overzealous conveyancer may want to use the “belt and suspenders” approach — get the devisee to join in the conveyance — when purchasing property from an estate, but this may be ill-advised. Once the devisee joins in the conveyance with the executor, a question arises: who’s the seller, the executor under the power or the devisee? The answer to this question is crucial, for it is by way of the exercise of the power that the executor is able to divest the title and free it of the claims of creditors and others claiming under the will. (A deed from the devisee would be subject to the baggage that I’ve noted before.) The executor in exercising the power essentially creates a “fund” against which creditors can make their claims, and it is this fund (the conversion of real estate to money) that permits the title to be “cleansed” because, in the hands of the executor, it serves as a substitute for the land and is held by the fiduciary to satisfy claims as they may be presented . If the devisee joins in the conveyance the baggage may not be “fully unloaded,” as it is unclear whether the funds are the devisee's or are being held by the fiduciary. Belts and suspenders are good when your pants are falling down, but when used in connection with a sale from an estate it clouds the question as to the identity of the seller. It is better to have the executor alone give the deed so that questions concerning baggage are disposed of.

When it comes to powers of an executor, something should be said about the Statutory Optional Fiduciary Powers that are provided for under G.L.c. 184B, §2. These are powers that can be incorporated by reference and thereby give to the executor powers that otherwise would be custom-drafted in connection with the preparation of the will. It is important therefore to make sure that all the powers are acceptable in regards to the particular estate (although the statute provides that the incorporation can be done “subject to exceptions”). It is important to note, in this regard, that the statute provides that “[a]n attorney at law preparing a will or trust who uses a term defined in this chapter shall furnish to the testator or settlor a copy of the section of this chapter by which the term is defined.”

The statute contains many powers, including the power to sell and to mortgage, among others, and provides that the powers “may be given to the fiduciary in a will or trust by specific reference thereto in said will or trust.” A mere recital that the executor “shall have all those powers enumerated as Statutory Optional Fiduciary Powers as set forth in G.L.c. 184B, §2” would be sufficient.

The Fix

Sometimes there is a question as to whether an executor or an administrator has properly exercised a power, whether it be one contained in a will or by way of a license. There may be some question as to the verbiage used in the will or the time during which the executor has acted — or whether the fiduciary had any power at all (as where an administrator purports to sell property without the benefit of a license). These issues can be “fixed” by applying to the court for a ratification of a doubtful act of the fiduciary. The relevant statute is G.L.c. 204, §24 and it provides that if the authority or validity of an act or proceeding of the probate court or of a person acting as executor, administrator, guardian, conservator, receiver, commissioner or other fiduciary officer appointed by the probate court, or trustee is drawn in question the court may, upon petition of any interested party ratify the acts of that fiduciary, provided that the court could have authorized the act in the first instance upon due proceedings.

This is a very important statute to keep in mind. If the court could have authorized the act in the first instance it can ratify the act.

What Next?

In the first part of this article I discussed how title can pass by intestacy. In this installment I explored how title can pass by testamentary disposition. But death can jettison title in a direction that has nothing to do with the estate of the deceased. In the continuation of this article in an upcoming newsletter I will discuss tenancies under which parties hold their title — and some of the discussion will amaze you. You’ll see!

Part III: Tenancies

Parts I and II of this article, like this part, concern the passage of title upon death. In the case of tenancies there’s a nice little compact law that appears to govern all aspects of the subject. The statute is G.L.c. 184, §7. But we’ll soon find out as we start exploring the statute that within its three little paragraphs lurk trouble (that’s Trouble with a capital “T”) for the conveyancer. In fact, reading the statute may not help answer a tenancy question at all, because the statute’s provisions might not even apply! Stated another way, what you read in the statute today may not govern facts and situations that arose in the past. This means, of course, that we have to understand the history of the statute in order to know how it applied at any particular time. On top of that, the courts have made some rather startling decisions in the statute’s application. “What you see is what you get” is not the rule here!

What Does the Statute Say?

Let’s look at today’s tenancy statute and see what kind of “trouble” it might get a conveyancer into if he or she applied it indiscriminately to transactions occurring in the past as disclosed in an abstract of title.

The tenancy statute (G.L.c. 184, §7) presently provides as follows:

A conveyance or devise of land to two or more persons or to husband and wife, except a mortgage or a devise or conveyance in trust, shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy. A devise of land to a person and his spouse shall, if the instrument creating the devise expressly so states, vest in the devisees a tenancy by the entirety.

A conveyance or devise of land to a person and his spouse which expressly states that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them shall create an estate in joint tenancy and not a tenancy by the entirety. In a conveyance or devise to three or more persons, words creating a joint tenancy shall be construed as applying to all of the grantees, or devisees, regardless of marital status, unless a contrary intent appears from the tenor of the instrument.

A conveyance or devise of land to two persons as tenants by the entirety, who are not married to each other, shall create an estate in joint tenancy and not a tenancy in common.

This statute is a collection of amendments, one piled upon the other, most of which were enacted to “correct” some judicial decision that had previously been rendered. These various amendments for the most part are not retroactive, so their respective enactments would not apply to deeds and wills executed before each enactment became effective. Knowing when any particular change was made — and what the change accomplished — is crucial to the conveyancer in analyzing an abstract of the title to property.

The whole statute’s purpose, even from the very beginning, was to change the state of the law. For example, at common law the joint tenancy was preferred, but from the time of the statute’s enactment in 1785[11] tenancy in common became the preferred and presumed way in which multiple grantees or devisees would hold title. From that time on changes in the existing enactment occurred over and over again.

What “Survived” the Enactment of the Statute?

The statute read in its original raw state (when enacted in 1785) simply provided that a conveyance (except a mortgage or a deed of trust) to two or more persons would be presumed to create a tenancy in common unless apt words were used to create a joint tenancy or the “tenor of the instrument” required this result. This first primordial law did not affect mortgages and deeds of trust — they “survived” the enactment and are to this day still governed by the common law, meaning that mortgagees and trustees hold their titles as joint tenants — but the law applied to all other types of instruments. This fact is important because as multiple mortgagees (or trustees) die their interests do not pass to their heirs or devisees, but rather to their co-mortgagees (and co-trustees). But there’s an exception to this joint tenancy rule as it applies to mortgagees. The exception is found in Park v. Parker, 216 Mass 405, 103 N.E. 936 (1914). In that case multiple owners of property who held title as tenants in common sold the property to a party who gave a purchase money mortgage back to the original owners. The mortgage was silent as to tenancy. The “default” rule that mortgagees were deemed to hold the security as joint tenants was held inapplicable under these particular facts. The court said:

The presumption is strong that they expected the note to stand in the place of the land they had sold, with like proportional interest in each. It is unlikely that as between themselves they intended that a relation so different and so speculatively uncertain in its nature as joint tenancy should be substituted for the plain and definite equal ownership of tenants in common.

The “speculatively uncertain” nature of a joint tenancy — dependent, at it is, on the fact that title will devolve to the surviving joint tenants solely based upon the order of their respective deaths — was declared in Park to be at odds with the “plain and definite equal ownership” of a tenancy in common. It seems that Park was not decided based upon the application of the tenancy statute and its presumption of tenancy in common (because mortgages are not governed by that statute), but rather on the notion that in substituting one property for another the relationship between the parties should remain the same. But no doubt the reasoning in such later cases as Pineo v. White, 320 Mass. 487, 70 N.E.2d 294 (1947) — that the tenancy statute has been consistently interpreted to mean that it is “the public policy of the Commonwealth that joint tenancies are looked upon with disfavor” — was swirling in the background of the Park decision.

Though mortgagees, if the debt is joint, will hold the mortgage jointly under the statute, it has been held that even in such a case after foreclosure, the mortgagees become tenants in common. Goodwin v. Richardson, 11 Mass. 469.

Also, it appears that assignees of a mortgage hold the mortgage as joint tenants. See Webster v. Vandeventer, 72 Mass. 428 (1856) where it is said, “Two or more joint mortgagees are joint tenants, and not tenants in common, of the mortgaged lands. So, doubtless, are two or more assignees of a mortgage, especially if the mortgage is assigned to them as trustees of a third party. Co-trustees are joint tenants. Appleton v. Boyd, 7 Mass. 131. Hill on Trustees, (2d Amer. ed.) 441, 442. Rev. Sts. c. 59 §11.” In Webster the mortgage had been assigned to two trustees of an unincorporated Society. The ruling of the court, therefore, was limited to an assignment of a mortgage to trustees; however the general statement by the court is not limited to trustees.

Regarding mortgages that are held jointly, under G.L.c. 183, §54 one of two or more joint holders of a mortgage can discharge it. The statute makes reference to “joint holders,” but the term must mean parties who hold the mortgage as joint tenants, because otherwise the word “joint” is superfluous — the phrase “one of two holders of a mortgage” would have been sufficient. Notwithstanding the statute, under Pineo v. White, 320 Mass. 487, 70 N.E.2d 294 (1947) it was held that a wife who held a mortgage with her spouse could not discharge the mortgage without the other spouse joining in the discharge because the signing spouse could not be considered a “joint holder,” for the reason that there was a unity of title between the spouses, and they would be deemed to hold the mortgage as tenants by the entirety. Now, even a discharge from a tenant by the entirety will be deemed good after the expiration of a ten-year period. G.L.c. 183 §54A. As we shall see this “unity of title between spouses” will arise in a number of other situations concerning tenancies and will in each instance gave a surprising result.

Little Words Make for Big Problems

One of the first things my father taught me when I practiced with him when I was straight out of law school was that a deed to married persons, describing them as husband and wife, followed by no words of tenancy, created a tenancy in common. He made a point of this, emphasizing that “a lot of lawyers don’t know this.” I found that this admonition turned out to be pretty true. In fact, after I joined “corporate America” as a title counsel for a title insurance company I found that a great many lawyers thought that such a deed created a tenancy by the entirety. This brings us to one of the very first amendments to the tenancy statute.

One observation about the original enactment of the tenancy statute is that the phrase “or to husband and wife” is missing from this first-enacted law. (The original enactment simply provided that a conveyance, except a mortgage or a deed of trust, to “two or more persons” would be presumed to create a tenancy in common unless apt words are used to create a joint tenancy or the “tenor of the instrument” required this result.) This is very significant and has caused the kind of confusion that my father was referring to. This phrase — “or to husband and wife” — was inserted in 1885. The reason for its insertion was on account of this “unity of title between spouses” theory. Based on the original text of the statute as enacted in the Eighteenth Century the courts were holding that a deed to a husband and wife which was silent on the tenancy would, notwithstanding the statute, create a joint tenancy between those parties (which as we shall see was converted to a tenancy by the entirety) because a husband and wife were not “two persons,” but in law only one. Since the original statute in changing the common law referred and applied to “two or more persons” it was deemed by these early courts not to be applicable to deeds to married couples, resulting in the common law remaining applicable to such conveyances and thus creating a joint tenancy (and its concomitant conversion to a tenancy by the entirety). But this result was changed by reason of the amendment in 1885, so since that time a deed to a married couple where no other tenancy is specified will create a tenancy in common, just as it originally would with respect to unmarried couples. This fact seems sometimes to be misunderstood — with the assumption on the part of some conveyancers that a deed to a married couple will always create a tenancy by the entirety. It will not (at least after 1885) if the instrument is silent on the issue.

This is probably an opportune time to discuss tenancies by the entirety generally. Such tenancies are in fact joint tenancies between married persons, but have some very peculiar attributes. Whenever I discuss tenancies by the entirety I always start with my favorite quote on the subject. In King v. Greene, 30 N.J. 395, 153 A.2d 49 (1959) Chief Justice Weintraub had this to say:

It rests upon the fiction of oneness of husband and wife. Neither owns a separate and distinct interest in the fee; rather each and both as an entity own the entire interest. Neither takes anything by survivorship; there is nothing to pass because the survivor always had the entirety. To me the conception is quite incomprehensible.

Incomprehensible, for sure! It is because of this “oneness of husband and wife” (with, at common law, the husband being the one) that our early courts had ruled that the “two or more person” phrase in the tenancy statute didn’t apply to married persons. But the enigma gets even more interesting. Until the relatively recent (1980) amendment to G.L.c. 209, §1 tenancies by the entirety took on a life of their own in the legal arena of conveyancing. Under the historical form of the tenancy by the entirety the wife had nothing more than an expectancy. That is, she had a “hope” that she might succeed to the title if her husband predeceased her. This expectancy was not something her creditors could get to nor was it something that she could deal with herself. In Shwachman v. Meagher, 45 Mass.App.Ct. 428, 699 N.E.2d 16 (1998), which is a case that reads like the Encyclopedia Britannica on the subject of the traditional tenancies by the entirety (what my father would have described as “required reading”) Richard and Jane Meagher held their title as tenants by the entirety, which tenancy had been created before the 1980 statute. Philip Shwachman had obtained a judgment against Richard alone. He thereafter obtained an execution and, through a sheriff’s sale, acquired Richard’s interest in the property. (He would not have been successful if his execution was against Jane, since she had only an “expectancy.”) In an effort to dispose of any objection to his title based on Jane’s continuing expectancy in the property, Shwachman secured a deed from Jane of her interest in the property. In an action in the superior court that revolved around the question of whether Jane’s deed effectively conveyed anything to Shwachman the court ruled that the deed was void because Richard her husband had not joined in the deed.

Under the “new” (1980) statute the result probably would have been different, and the court alludes to this: since the 1980 amendment now put both married couples on a equal footing, being able to give a deed of their respective expectancies, the other spouse did not have to join.

Being permitted to convey an expectancy in a tenancy by the entirety does not translate into being able to sever the estate of terminate or otherwise affect the other parties’ expectancy, or even convey the fee title. Chief Justice Liacos summed up this concept quite nicely in Coraccio v. Lowell Five Cents Savings Bank, 415 Mass. 145, 612 N.E.2d 650 (which was cited in Shwachman), when he wrote:

The [new] statute did not, however, alter the characteristics of the estate itself. Merely because each spouse is “equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety,” it does not follow that each has an equal one half interest in the property. On the contrary, a tenancy by the entirety remains a unitary title, and the statute simply guarantees each spouse an equal right to the whole. Whatever the husband could do at common law, the wife now may do as well. Each spouse continues to have a indestructible right of survivorship, and the estate remains inseverable and not subject to voluntary partition. (Citations omitted.)

Nonetheless, either spouse may convey or encumber his or her interest in property held as tenants by the entirety. * * *.

[A grantee from one of the spouses], could acquire [an] interest in the property, namely a right wholly defeasible should the [other] nondebtor spouse, survive him.

So, the tenancy by the entirety has gone through a metamorphosis over the years. As I indicated at the beginning of this article, because the rules keep changing the target keeps moving, and it’s important to know the history of the statute and its effect upon the tenancy by the entirety — and the other tenancies as well — at any particular moment in time.

It should be noted at this point that tenancies by the entirety can now be created between same-sex married couples. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003). One might think that in light of Goodridge the legislature would have by now substituted a phrase like “two persons who are married to each other” for the original phrase “husband and wife.” But it seems obvious that this original phrase will be interpreted to include such couples, but interestingly enough all other phrases in the statute when used to describe the relationship between, or the tenancy that will be created on account of the married or unmarried status of persons, employ more general descriptive language (a devise to a “person and his spouse” as tenants by the entirety will create such a tenancy; a conveyance or devise “to a person and his spouse” that designates a joint tenancy will create such a relationship; a conveyance or devise “to two persons as tenants by the entirety” who are not married to each other will create a joint tenancy).

Just Go Ahead and Say It!

To overcome the statutory presumption of tenancy in common various combinations of words must be used or the “tenor of the instrument” must show the intention to create a joint tenancy. The words that can create a joint tenancy include a statement in the deed or will that the grantees shall take:

• Jointly
• As joint tenants
• In joint tenancy
• To them or to the survivor of them

In addition to using these phrases a joint tenancy can be created under the statute if it “manifestly appears from the tenor of the instrument” that a joint tenancy was intended. What does this provision mean? Let’s take an example. In Morris v. McCarty, 158 Mass. 11, 32 N.E. 938 (1893) a deed ran to two unmarried persons as "tenants by the entirety and not as tenants in common." The court stated that since the parties could not hold as tenants by the entirety (they weren’t married to each other), and since the deed excluded the possibility of title being held as tenants in common (the deed contained the phrase “and not as tenants in common”), the only remaining option, a joint tenancy, would arise. The court said:

On looking at the deed under which the tenant claims, it is quite plain that the grantors intended to create an estate in joint tenancy, as distinguished from an estate in common. The particular form of estate in joint tenancy which they contemplated fails; but they took great pains to exclude the idea of an estate in common, and the effect of the deed is to create an estate in joint tenancy, without the special feature of an estate in entirety.

Don’t Believe Everything You Read

One would think from the Morris case that a deed to two persons as “tenants by the entirety” when they are not married to each other would create a joint tenancy. And, in fact, today’s statute says just that: “A conveyance or devise of land to two persons as tenants by the entirety, who are not married to each other, shall create an estate in joint tenancy and not a tenancy in common.” But this is where the history of the statute and the case law that inspired the various amendments becomes important. Under G.L.c. 184 §7, before it contained the language quoted above, it was decided in Fuss v. Fuss (No. 2), 373 Mass 445, 368 N.E.2d 276 (1977) that a deed to two persons as tenants by the entirety who were not married to each other would vest them with title as tenants in common. The logic was (i) the law presumes a tenancy in common, (ii) a joint tenancy can be created only with specific language stating that the parties are to hold jointly and (iii) a tenancy by the entirety can be held only as between married persons. The language employed in the deed in Fuss was “tenants by the entirety,” and the court concluded that since the parties were unmarried they could not hold that way, and that since the deed did not specifically call for a joint tenancy they could not hold that way either. That left tenancy in common as the only option. The distinction between the Fuss and Morris decisions was that the deed being construed in the latter case contained the phrase “and not as tenants in common,” while that language did not appear in the deed that the Fuss court was examining. Of course, the statute changes all this and creates a joint tenancy between unmarried persons when they are described as tenants by the entirety, but only as to conveyances and devises after the effective date of the amendment. The amendment, which was in response to the Fuss decision, was engrafted on the statute in 1979. Conveyances before then are governed by Fuss or Morris, depending upon the language used in the instrument.

Where There’s A Will . . .

Sometimes it makes a difference where and in what instrument supposed joint tenancy language appears. In Cross, v. Cross, 324 Mass. 186, 85 N.E.2d 325 a devise in a will to “my son Thomas . . . and to my son William . . . share and share alike, or to the survivor of them” was deemed to create a tenancy in common. The court said:

[The respondents] argue that the testator’s words are appropriate for the creation of a joint tenancy, and that at [the testator’s] death Thomas and William became vested with a remainder as joint tenants. We cannot adopt this argument. To begin with, the expression ‘share and share alike,’ standing alone, would create a tenancy in common. [Citations omitted.] The general principal being that a will speaks as of the time of the testator’s death, [citations omitted] we think that the purpose of the later words ‘or to the survivor of them’ was to provide for the contingency where only one son might be living at that time. In such case the surviving son was to take all.

As the court pointed out in Cross, the will speaks as of death and that in such a case the phrase “or to the survivor of them” was to provide for the contingency where only one devisee might be living at the time of the testator’s death.[12]

Wills, of course, can create tenancies by the entirety, joint tenancies or, as happened in Cross, a class gift. Wills, of course, do not operate on existing tenancies by the entirety or joint tenancies because the property held as such is not probate property and therefore not affected by the provisions of the will. But what happens, in the case of a death, where both of the tenants by the entirety or joint tenants died simultaneously, and there’s no evidence to determine who died first? How is the property distributed? G.L.c. 191A, §3 addresses this:

Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously the property so held shall be distributed one half as if one had survived and one half as if the other survived. Where more than two joint tenants have died and there is no sufficient evidence that they died otherwise than simultaneously the property so held shall be divided into as many equal shares as there were joint tenants and the share allocable to each shall be distributed as if he had survived all the others.

Getting To Basics — and Antiquity

I don’t want to get too esoteric, but I do want to note something that goes to the core of joint tenancy. This is the concept of Unities of Title. There are four of them (thus sometimes referred to the Four Unities) and they must all exist in order for a joint tenancy to be created. These unities are as follows:

• The Unity of Time. This means that all joint tenants must acquire their title at the same time, under the same instrument. There is one statutory exception to this, and I’ll discuss that in a moment.

• The Unity of Title. This means that the interest (fee title, life estate, etc.) must be of the same quality as to each tenant. You can’t have a joint tenancy consisting of a fee simple remainder and a life estate.

• The Unity of Interest. This means that each tenant must have an interest that is equal to that of all other tenants. You can’t have one tenant with a three-quarters interest and the other with a one-quarter interest.

• The Unity of Possession. This means that all tenants must have the right to possess the whole estate.

Perhaps these unities are outmoded and obsolete, but the fact remains that they still govern joint tenancies.

One of the Unities Dies on the Vine

There is one exception to the Four Unities, and it is contained in G.L.c. 184, §8. It says:

Real estate, including any interest therein, may be transferred by a person to himself jointly with another person in the same manner in which it might be transferred by him to another person, and a conveyance of real estate by a person to himself and his spouse as tenants by the entirety shall create a tenancy by the entirety.

Without the benefit of this statute a person who owned property and wanted to create either a joint tenancy therein between himself and another person or a tenancy by the entirety with his spouse would have to use a “straw” (third party) to take title and then reconvey it accordingly. At common law, without the intervention of a “straw” in such case, the Unity of Time would be violated: since the grantor already owned an interest in the property the new person to be added to the title would necessarily take his or her interest therein at a different time than the original grantor, thus violating the unity, which would result in the creation of a tenancy in common. The statute makes for a “shorthand” way of effectuating the conveyance and creates the joint tenancy or tenancy by the entirety even though the Unity of Time is not observed. The statute governed the creation of a joint tenancies (only) from 1918 to 1954 and covered tenancy by the entirety as well from and after 1954.

Watch your Punctuation

The courts have taken the tenancy statute seriously, so seriously, in fact, that the various amendments to the statute have been enacted in an effort to add some reasonableness to its application. For example, in Fulton v. Katsowney, 342 Mass. 503, 174 N.E.2d 366 (1961), where the court was asked to interpret a deed that ran to “James C. Miller, being unmarried, and Dimitri Katsowney and Elfena Katsowney, his wife, as joint tenants and not as tenants in common,” it concluded that the words “joint tenants” applied only to Dimitri and Elfena, the last two named grantees, leaving James to be a tenant in common. The court said:

As a matter of syntax, the words “as joint tenants and not as tenants in common” are applicable to all three grantees or only to Dimitri and Elfena Katsowney. In determining the intent of the grantors we are not assisted by evidence of the circumstances or the mutual relation of the grantees. Certainly it does not “manifestly appear . . . from the tenor of the instrument” that it was intended to extend the estate of joint tenancy in the Katsowneys to include Miller. In such case we are compelled to rely on the statutory presumption to resolve the problem of construction. It leads us to conclude that the deed conveyed a one half interest in the property to Miller to be held as tenant in common with the respondents.

We’re Going into Overtime

What the court was saying in Fulton was if there is a “toss-up” or a “tie” — where the syntax of the sentence can be read either way — it was “compelled” to rely upon the “statutory presumption” of tenancy in common. This kind of decision prompted an amendment to the statute in 1973. It is contained in the second paragraph of the statute:

In a conveyance or devise to three or more persons, words creating a joint tenancy shall be construed as applying to all of the grantees, or devisees, regardless of marital status, unless a contrary intent appears from the tenor of the instrument.

Between the time of the Fulton decision in 1961 and the amendment in 1973 the decision in Fekkes v. Hughes, 354 Mass. 303, 237 N.E.2d 19 (1968) was rendered. In Fekkes a deed that listed multiple grantees and then added the phrase “all as joint tenants” after the listing of their names was interpreted to create a joint tenancy as to all of the named grantees, not just the last two. The court cited Fulton and noted that in that case there was an “ambiguity” as to what the words “joint tenants” modified, but in the deed in Fekkes there was no ambiguity because the word “all” discounted it.

The Fekkes court discussed another issue concerning tenancies which, just like the issue then before it, was not the subject of a “corrective” amendment until 1973. The deed in Fekkes actually ran “Harold B. Hughes and Dorothy Ann Hughes, husband and wife, and Harry Fekkes and Dorothy D. Fekkes, husband and wife, all as joint tenants.” The law in effect at the time Fekkes was decided was that a deed to a husband and wife as joint tenants would vest them as tenants by the entirety (the joint tenancy between the married persons would be “converted” to this kind of martial tenancy). The court acknowledged the tenet of law but held that it was inapplicable because “the use of the word ‘all’ expressed an intent that the joint tenancy should exist without qualification between all of the grantees” and did not create two separate tenancies by the entirety. This was an important issue in Fekkes because the case involved the partition of land. A tenancy by the entirety can not be partitioned (see G.L.c. 241 §1), while a joint tenancy could. In 1973 the statute was amended to provide that:

A conveyance or devise of land to a person and his spouse which expressly states that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them shall create an estate in joint tenancy and not a tenancy by the entirety.

This amendment, once passed, prevented the operation of the common law rule that would otherwise “convert” a joint tenancy between married persons into a tenancy by the entirety. Again, however, the statute is not retroactive.

Watch It! It’ll Break!

After the creation of a joint tenancy or a tenancy by the entirety certain events can occur that can destroy the tenancy. In the case of a tenancy by the entirety no act by one spouse alone can sever the tenancy and there are only a few ways that the tenancy can be broken or destroyed:

• Divorce. Because a tenancy by the entirety depends upon the existence of a valid marriage, a divorce will “sever” the tenancy and transform it into a tenancy in common. Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685 (1927). In Bernatavicius the court dismissed the notion that a joint tenancy would be created upon the divorce of persons who had held as tenants by the entirety:

  Joint tenancy and its doctrine of survivorship are not in harmony with the genius of our institutions, nor are they much favored in law. Burnett v. Pratt, 22 Pick. 556.

  Our statutes tend in the same direction. Express words are necessary in a deed or devise (except as to trusts) to create a joint tenancy. G. L. c. 184, §7. These considerations lead us to the opinion that the operation of a divorce of the parties upon a tenancy by the entirety creates a tenancy in common.

  An interesting fact, which the Bernatavicius had no opportunity to comment on at the time, is the amendment to the statute which was thereafter enacted. As noted previously, under the amendment a deed to two persons as tenants by the entirety who are not married to each other creates a joint tenancy. So, the question remains judicially unanswered whether after the amendment a divorce would result in converting a tenancy by the entirety into a joint tenancy, rather than a tenancy in common. However, I do not believe that this statutory change would affect the result reached in Bernatavicius. The statute is phrased in terms of “a conveyance to” persons as tenants by the entirety “who are not married to each other,” and provides that such a conveyance “create[s]” a joint tenancy. It is the “conveyance” that “creates” the joint tenancy, not the change in circumstances or relationship of the grantees.

• Conveyance by one spouse to another. In Bernatavicius the court was concerned with the effect of a divorce upon a tenancy by the entirety. However, there is a statement in the opinion that such a tenancy would be destroyed by deed of both parties “or possibly of one party directly or indirectly to the other.” Clearly, both spouses could join in a conveyance to one of them, but it was not clear, at least from the Bernatavicius opinion, as to whether the same result would be obtained if just one of them conveyed to the other. However, in Hale v. Hale, 332 Mass 329, 125 N.E.2d 142 (1955) the court in fact ruled that such a conveyance from one spouse to the other would “collapse” the tenancy and place all title in the grantee-spouse.

A joint tenancy, unlike a tenancy by the entirety, can be severed by the act of any one party and third parties can cause a severance too. (A divorce, which will sever a tenancy by the entirety, will not sever a joint tenancy, because such tenancy does not depend upon the marital relation between the parties. See Lima v. Lima, 30 Mass.App.Ct. 479, 570 N.E.2d 158 (1991).) Some of the events that will sever a joint tenancy are these:

• Voluntary conveyance by a co-owner. A tenant by the entirety cannot sever such a tenancy by his or her act alone. A conveyance not joined into by the other spouse (except for a conveyance by one spouse to the other) will not shatter the tenancy, but a conveyance by a co-owner who holds in joint tenancy with one or more other persons will sever that party’s interest with regard to the other joint tenants. (If there are three or more joint tenants the severance will occur only in relation to the tenant who has conveyed and the remaining joint tenants; the joint tenancy between the remaining joint tenants will be unaffected.) An outright deed is the most obvious vehicle by which the tenancy can be severed, but there are other methods as well. For example, the granting of a mortgage by one co-tenant will sever the joint tenancy.

• Involuntary conveyance by co-owner. A sheriff’s sale or a partition will sever a joint tenancy.

• Execution. G.L.c. 236 §12 provides that if land is held by a debtor in joint tenancy, the share thereof belonging to the debtor may be taken on execution, and shall thereafter be held in common with the co-tenant. The statute uses the term “taken on execution” as being the event that severs the tenancy. What this term means — whether it be simply the recording of the execution or the sale thereunder — is not defined, but it is axiomatic that a sale by the sheriff pursuant to a deed to a purchaser will sever the joint tenancy. It seems, therefore, that the statute is contemplating simply the recording of the execution as being the trigger which severs the tenancy and causes the debtor and the other tenants to be regarded as tenants in common. Moreover, the phrase “taken on execution” appears in other statutes, including G.L.c. 236 §4, which was interpreted in Still Associates, Inc.. v. Porter, 24 Mass. App. Ct. 26, 508 N.E.2d 621 (1987). From this case it seems that the phrase “taken on execution” includes merely the recording of the execution.

  An attachment, as opposed to an execution, would appear not to sever a joint tenancy. An attachment is merely a lien placed on the property for security in connection with the collection of a debt. In applying the rule in Weaver v. City of New Bedford, 335 Mass. 644, 140 N.E.2d 309 (1957) by analogy, this seems to be the result. In Weaver it was decided that, unless otherwise required by statute, the recordation of a lien will not effectuate the severance of a joint tenancy. In Weaver the issue was the effect of the recording of an old age lien on a joint tenancy. An attachment seems to be on the same footing.

Knowing what the law is concerning tenancies is important. But just as important is knowing when the laws were effective. Keeping track of when laws that affect tenancies are passed and what happens after a tenancy is created will keep you out of trouble – that’s the Trouble I was talking about; the one with the capital “T.”

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1 In 1938 the threshold amount was $5,000. [Back to text]

2 The spouse does have other rights — dower, rights to allowances and, where one was declared, rights under a homestead — but we’ll pass over those rights for now. [Back to text]

3 The distribution of personal property is governed by G.L.c. 190, §2. [Back to text]

4 See G.L.c. 190, §4. [Back to text]

5 See the discussion in Seavey v. O’Brien, 307 Mass. 33 (1940). [Back to text]

6 If all of the members of the class are dead, then we simply “drop down” to the next generation with survivors in it, and apply the same rule. [Back to text]

7 For this reason alone, it is generally agreed among conveyancers that even if a deed is accepted from the devisee that the executor should join in the conveyance if for no reason other than exhausting the power. See Swaim, Crocker’s Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §A30. [Back to Text]

8 Mayo v. Merritt, 107 Mass. 505. [Back to Text]

9 Bayley v. Sloper, 263 Mass. 534, 160 N.E. 275. [Back to Text]

10 Johnson v. Tracey, 326 Mass. 628, 88 N.E.2d 157. [Back to Text]

11 The first enactment was in 1783 and it provided that “the principal of survivorship shall no longer be in force in this commonwealth,” but the 1785 enactment rescinded the original law and modified its result by creating a presumption of tenancy in common rather than an outright elimination of joint tenancy. [Back to Text]

12 The phrase “share and share alike” appears in the will in Cross. However, the court’s comment (“[t]o begin with, the expression ‘share and share alike,’ standing would create a tenancy in common”) is to emphasize the fact that the phrase in no way could be interpreted to create anything other than a tenancy in common — something that would be created by silence, without the phrase at all. Even where there is a “toss-up” the court has told us that “we are compelled to rely on the statutory presumption [of tenancy in common] to resolve the problem of construction.” Fulton v. Katsowney, 542 Mass. 503, 174 N.E2d 366 (1961), discussed later. [Back to Text]