In re Estate of James Hamilton ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-PR-0338
IN RE ESTATE OF JAMES HAMILTON; APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(2021-ADM-001066)
(Hon. Erik P. Christian, Probate Judge)
(Submitted June 16, 2023 Decided August 10, 2023)
Kellee G. Baker for appellant.
Charles L. Wardell for appellee Estate of Eric Hamilton.
Joyce Ann Williams for appellee Shirley Plummer. 1
Morris R. Battino, with whom Aaron G. Sokolow and Peggy A. Marquardt
were on the Statement in Lieu of Brief for Intervenor/Appellee Torus Solutions,
LLC, adopting the arguments of appellee Estate of Eric Hamilton.
Farid Malik Hakim, pro se. 2
Before ALIKHAN and SHANKER, Associate Judges, and FISHER, Senior Judge.
1
Appellee Shirley Plummer did not file a brief on appeal.
2
Appellee Farid Malik Hakim did not file a brief on appeal.
2
ALIKHAN, Associate Judge: Before he passed away, James Hamilton
attempted to convey a property located at 1231 V Street, SE, to his son, Eric
Hamilton, and himself “as tenants by the entirety, their assigns and unto the survivor
of them, and the survivor’s personal representatives and assigns.” A tenancy by the
entirety is not legally possible between a father and son, because it is an ownership
status reserved exclusively for married couples and domestic partners. D.C. Code
§ 42-516(c). After James Hamilton’s death, the probate court acknowledged this
misstep and interpreted the deed as one creating a joint tenancy with a right of
survivorship, reasoning that such an interpretation best effectuated James
Hamilton’s intent, as expressed through the language of the deed purporting to create
a tenancy by the entirety and separately mentioning survivorship rights. Under this
interpretation, the probate court determined that Eric Hamilton had become the sole
owner of the property after James Hamilton’s death. James Hamilton’s estate has
now appealed, primarily arguing that the probate court incorrectly relied on James
Hamilton’s intent when interpreting the deed and that D.C. Code § 42-516(a) should
control the deed’s interpretation. We disagree and affirm.
I. Legal Framework
There are three types of concurrent real property ownership authorized in the
District of Columbia that are relevant here. See id. § 42-516. First, a “tenancy in
common” is a “tenancy by two or more persons, in equal or unequal undivided
3
shares . . . [with] no right of survivorship.” Tenancy in Common, Black’s Law
Dictionary (11th ed. 2019). When a tenant in common dies, the deceased’s
ownership shares in the property become part of the deceased’s estate, rather than
being distributed among the other tenants in common. See OneWest Bank, FSB v.
Marshall, 18 A.3d 715, 718, 724 (D.C. 2011).
Next, a “joint tenancy,” sometimes referred to as a “joint tenancy with right
of survivorship,” is a “tenancy with two or more co[-]owners who are not spouses
on the date of acquisition and have identical interests in a property with the same
right of possession.” Joint Tenancy, Black’s Law Dictionary (11th ed. 2019).
Importantly, a “joint tenancy differs from a tenancy in common because each tenant
has a right of survivorship to the other’s share.” Id. Thus, “upon the death of one
of two joint tenants . . . the present interest of the surviving joint tenant in the whole
property becomes exclusive.” Gallimore v. Washington, 666 A.2d 1200, 1203-04
(D.C. 1995). In the District, an “estate granted or devised to 2 or more
persons . . . shall be a tenancy in common, unless expressly declared to be a joint
tenancy.” D.C. Code § 42-516(a).
Finally, a “tenancy by the entirety” is “essentially a joint tenancy, modified
by the common-law theory that husband and wife are one person.” In re Wall’s
Estate, 440 F.2d 215, 217 (D.C. Cir. 1971) (quoting Settle v. Settle, 8 F.2d 911, 912
4
(D.C. Cir. 1925)). It “may be created in any conveyance of real property to spouses
or to domestic partners.” D.C. Code § 42-516(c).
II. Factual Background and Procedural History
James Hamilton and his wife, Viola Hamilton, held title to the V Street
property as tenants by the entirety until her death in 2007, at which point James
Hamilton became the sole owner. Five years later, James Hamilton added his son,
Eric Hamilton, to the deed as co-owner of the property. The deed reads:
This Deed, made this 25th day of April, 2012, by and
between James Hamilton, surviving Tenant by the Entirety
of Viola E. Hamilton who departed this life on or about
August 27, 2007, party of the first part, and James
Hamilton and Eric L. Hamilton, parties of the second part.
WITNESSETH, that in consideration of the sum of No and
00/100 Dollars ($.00), the party of the first part does
hereby grant unto the parties of the second part, in fee
simple, as tenants by the entirety, their assigns and unto
the survivor of them, and the survivor’s personal
representatives and assigns, all that piece or parcel of
land, together with the improvements, rights, privileges
and appurtenances to the same belonging, situate[d] in the
District of Columbia, described as follows, to wit: . . . .
James Hamilton passed away in 2020. At the time of his death, he had three
children: Eric Hamilton, Shirley Plummer, and Farid Malik Hakim. Ms. Plummer
is the personal representative of James Hamilton’s estate. Eric Hamilton passed
5
away one year later, and his only daughter, Givonshy Smith, is the personal
representative of his estate.
In September 2021, Eric Hamilton’s estate, believing that it was the sole
owner of the V Street property, entered into a contract to sell the property to Torus
Solutions, LLC. 3 In response, James Hamilton’s estate filed this action in the
Probate Division of the Superior Court of the District of Columbia to determine the
true owner of the property. James Hamilton’s estate argued that, because a tenancy
by the entirety is not possible between a father and son, the property had actually
been conveyed to James Hamilton and Eric Hamilton as tenants in common. Thus,
in its view, upon James Hamilton’s death in 2020, his half-share of the property had
passed to his estate, rather than solely to Eric Hamilton. In support of its argument,
James Hamilton’s estate claimed that in the District, there is a presumption against
the creation of a right of survivorship. Specifically, it asserted that D.C. Code
§ 42-516(a) requires that a joint tenancy be expressly declared and that James
Hamilton had not included such a declaration in the deed.
In response, Eric Hamilton’s estate acknowledged that a father and son cannot
be tenants by the entirety because such an arrangement is reserved for married
3
Torus Solutions, LLC, intervened in this action. It relies on Eric Hamilton’s
estate’s brief on appeal.
6
couples and domestic partners. Id. § 42-516(c). Primarily relying on Coleman v.
Jackson, 286 F.2d 98 (D.C. Cir. 1960), it asked the court to construe the deed as
creating a joint tenancy with a right of survivorship between James Hamilton and
Eric Hamilton, arguing that such an arrangement would best effectuate James
Hamilton’s intent. In its view, Eric Hamilton had become the sole owner of the
property upon the death of James Hamilton, and, upon Eric Hamilton’s death, the
property had become part of his estate.
In April 2022, the probate court ruled in favor of Eric Hamilton’s estate. It
determined that under Coleman and Robinson v. Evans, 554 A.2d 332 (D.C. 1989),
the proper way to resolve the dispute was to determine and effectuate James
Hamilton’s intent. It found that the language in the deed “indicated an intent to
create survivorship,” and that this intent would be best carried out by treating the
deed as one creating a joint tenancy with a right of survivorship. The court also
reasoned that if James Hamilton had wanted each of his children to have an
ownership interest in the property after his death, he would have named all three in
the deed. James Hamilton’s estate sought a timely appeal.
III. Discussion
The central question in this appeal is how to construe a deed that purports to
create a tenancy by the entirety between two parties who cannot hold property in
7
that manner. James Hamilton’s estate argues that the probate court should have
applied D.C. Code § 42-516(a) to construe the deed as creating a tenancy in
common, while Eric Hamilton’s estate defends the probate court’s decision to
effectuate James Hamilton’s intent. We conclude that the probate court correctly
looked to James Hamilton’s intent in construing the deed and appropriately
determined that James Hamilton had intended to convey his property to Eric
Hamilton with a right of survivorship.
A. The Probate Court Correctly Looked to James Hamilton’s Intent
“The interpretation of deeds, like contracts, is a legal question that we review
de novo.” Sears v. Catholic Archdiocese of Wash., 5 A.3d 653, 660 (D.C. 2010)
(italics omitted). “We interpret contracts and deeds under the ‘objective’ law of
contracts,” so “the written language . . . ‘governs the rights and liabilities of the
parties, regardless of the intent of the parties . . . unless the written language is not
susceptible of a clear and definite understanding, or unless there is fraud, duress, or
mutual mistake.’” Sahrapour v. LesRon, LLC, 119 A.3d 704, 708 (D.C. 2015)
(brackets omitted) (quoting DSP Venture Grp. v. Allen, 830 A.2d 850, 852
(D.C. 2003)). Where it is not possible to give effect to the language as written, we
8
look to the parties’ intent. Coleman, 286 F.2d at 103; Robinson, 554 A.2d at
338-39. 4
Coleman and Robinson all but dictate the outcome in this case. 5 In Coleman,
an unmarried couple purchased a property as tenants by the entirety, creating a legal
impossibility. 286 F.2d at 99. To interpret the deed, the court looked to the
“intention of survivorship [that] manifested in the deed” as creating a joint tenancy
with a right of survivorship. Id. at 103. Similarly, in Robinson, an unmarried
couple—each of whom was potentially married to someone else—purchased a home
as tenants by the entirety. 554 A.2d at 333. After a dispute arose, the trial court did
4
The Coleman and Robinson courts did not specify whether the deeds were
“ambiguous,” created in “mutual mistake,” or both. In either case, however, James
Hamilton’s intent controls the outcome here. See Sahrapour, 119 A.3d at 708. A
“[deed] is ambiguous when, and only when, it is, or the provisions in controversy
are, reasonably or fairly susceptible of different constructions or interpretations, or
of two or more different meanings.” Tillery v. D.C. Cont. Appeals Bd., 912 A.2d
1169, 1176 (D.C. 2006) (quoting Burbridge v. Howard Univ., 305 A.2d 245, 247
(D.C. 1973)). When a deed is ambiguous, “the intent and understanding of the
parties is of critical importance.” Howard Univ. v. Lacy, 828 A.2d 733, 737
(D.C. 2003). A mutual mistake occurs when “both parties believ[e] an extrinsic fact
to be true which in fact is erroneous.” Isaac v. First Nat’l Bank of Md., D.C., 647
A.2d 1159, 1162 n.8 (D.C. 1994). “[W]here an agreement has been reached by the
parties but the writing does not accurately express the mutual agreement of the
parties . . . reformation is appropriate.” Id. at 1162 n.9. “Reformation
is . . . designed to remedy a mistake as to expression, where there is a . . . mistake as
to the legal effect of the language.” Id. at 1163 n.10 (emphasis added).
5
Coleman is binding on us as a D.C. Circuit decision issued before
February 1, 1971. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).
9
not consider the parties’ intent, treated the parties as tenants in common, and ordered
the sale of the property in lieu of partition—a remedy not available unilaterally to a
single party to a tenancy by the entirety or joint tenancy. Id. at 333-34, 338. Citing
Coleman, we remanded for a determination of the parties’ intent given that the deed
had specified a tenancy by the entirety. Id. at 338-39. In so doing, we noted that
“[i]n the District of Columbia it is settled law that if a conveyance to two parties as
tenants by the entireties cannot take effect because the parties are not husband and
wife, then they take title as joint tenants.” Id. at 338 n.18. Thus, in both cases, when
faced with a deed creating an impermissible tenancy by the entirety, the court
examined whether the parties intended to create a right of survivorship in order to
decide whether to construe the deed as creating a joint tenancy or a tenancy in
common. 6
James Hamilton’s estate attempts to confine Coleman and Robinson to “cases
where domestic partners . . . could have legally deeded property as tenants by the
entirety but for a legal requirement of registration, or a civil or religious ceremony,”
6
Courts in other jurisdictions have also looked to the intent of the parties when
faced with an impermissible tenancy by the entirety. See, e.g., Wood v. Wood, 571
S.W.2d 84, 85-86 (Ark. 1978) (citing Coleman); Powers v. Buckowitz, 347 S.W.2d
174, 176 (Mo. 1961) (en banc); Hundley v. Neely, 365 P.2d 196, 198 (Wyo. 1961);
Beaton v. LaFord, 261 N.W.2d 327, 328-29 (Mich. Ct. App. 1977) (per curiam);
Crawley v. Shelby, 323 N.Y.S.2d 222, 223 (N.Y. App. Div. 1971); Frederick v.
Southwick, 67 A.2d 802, 805 (Pa. Super. Ct. 1949).
10
and it argues that they do not apply here because “there is no legal process by [which]
a father and son could qualify as husband and wife or domestic partners.” While
Coleman and Robinson both concerned unmarried couples, there is nothing in the
cases’ reasoning to suggest that their holdings were limited to parties that could
potentially enter into tenancies by the entirety had they taken proper steps to become
spouses or domestic partners. Indeed, it would be curious for Robinson to be read
in such a way, when both parties were potentially married to other people (which
would prevent them from legally marrying each other) when they attempted to create
a tenancy by the entirety.
What is more, when confronting a purported tenancy by the entirety between
a parent and child, the Missouri Supreme Court adopted reasoning identical to
Coleman and looked at the parties’ intent to establish a right of survivorship to
interpret the deed as creating a joint tenancy. Powers v. Buckowitz, 347 S.W.2d 174,
176 (Mo. 1961) (en banc). In Powers, a property was conveyed to a mother and
daughter “as tenants by entirety and to the survivor of them.” Id. at 175. After
recognizing the legal impossibility of a tenancy by the entirety between a mother
and daughter, the court determined that “it was the manifest intention of the parties
to create an estate in fee simple with right of survivorship in mother and daughter”
11
and, accordingly, it interpreted the deed as creating a joint tenancy with a right of
survivorship. Id. at 176. We see no reason to take a different approach. 7
James Hamilton’s estate also argues that D.C. Code § 42-516(a) controls over
James Hamilton’s intent. 8 Section 42-516(a) provides the default rule that “[e]very
estate granted or devised to 2 or more persons in their own right, including estates
granted or devised to spouses or domestic partners . . . shall be a tenancy in common,
unless expressly declared to be a joint tenancy.” James Hamilton’s estate contends
that because the language of the deed expressed an intent to create a tenancy by the
entirety, and not a joint tenancy, it should default to a tenancy in common under
Section 42-516(a). But this statute was on the books, albeit in a different place in
the D.C. Code, when Coleman was decided. See 286 F.2d at 100 (considering the
application of D.C. Code § 45-816 (Supp. V, 1951 ed.), which provided that “[e]very
estate granted or devised to two or more persons in their own right, including estates
7
James Hamilton’s estate argues that the legal impossibility of a tenancy by
the entirety between a father and son is a basis to sever the habendum clause,
resulting in the default tenancy in common. But “[t]he parties’ intention to make a
contract severable must be clearly expressed in the agreement.” RDP Dev. Corp. v.
Schwartz, 657 A.2d 301, 307 n.7 (D.C. 1995). The current deed does not include
such a provision; therefore, the deed cannot be severed.
8
Eric Hamilton’s estate asserts that this argument—among several others—is
forfeited. With the exception of one, see infra n.9, James Hamilton’s estate’s
arguments are properly before us either because they were raised in the probate court
or because they are arguments in support of a claim that was properly presented. See
Yee v. City of Escondido, 503 U.S. 519, 534 (1992).
12
granted or devised to husband and wife, shall be a tenancy in common, unless
expressly declared to be a joint tenancy”). The Coleman court interpreted the statute
as creating “a presumption in favor of tenancy in common,” but “only when there is
no expression to the contrary in the conveyance.” Id. And it concluded that the
presumption had been rebutted by the parties’ attempt to create a tenancy by the
entirety. Id.; see id. at 102 (“What the parties intended in this case is clear if we
accept the words of the conveyance as representing the intention of the parties.”).
That conclusion makes good sense, given that a “tenancy by entiret[y] is essentially
a joint tenancy” and the right of survivorship is a key feature of both. Id. at 103
(quoting Settle, 8 F.2d at 912). Coleman thus forecloses the argument that the deed
must bear the specific words “joint tenancy” to rebut the presumption in Section
42-516(a). 9
9
James Hamilton’s estate suggests that the lack of consideration for this deed
is “significant” to our interpretation of it. The estate did not raise this argument in
the probate court and it is therefore forfeited. Chatman v. Lawlor, 831 A.2d 395,
404 (D.C. 2003) (“Appellant’s failure to make this argument below precludes her
from doing so on appeal.”). But even if the argument had been preserved, it fails to
persuade. Parties may add others as joint tenants through a gift. See, e.g., Ford v.
Ford, 98 A.3d 1008, 1010 (D.C. 2014) (“[T]he 2002 deed to the
property . . . indicates that the mother added [her son] to the deed to establish a joint
ownership before she died.”). And we have used ordinary contract interpretation
methods to interpret deeds not supported by consideration. See Joyner v. Estate of
Johnson, 36 A.3d 851, 857 (D.C. 2012). The lack of consideration here thus does
not affect our analysis.
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B. The Probate Court Properly Gave Effect to James Hamilton’s Intent
Having concluded that it was appropriate for the probate court to look to
James Hamilton’s intent, we turn next to the court’s conclusion that his intent would
be best effectuated by construing the deed as one creating a joint tenancy with a right
of survivorship.
Again, we agree. The deed granted the property to James Hamilton and Eric
Hamilton “in fee simple, as tenants by the entirety, their assigns and unto the
survivor of them, and the survivor’s personal representatives and assigns.” The
specification of a tenancy by the entirety is “an expression of intent that the court
cannot ignore.” Coleman, 286 F.2d at 102. Indeed, in Coleman, the use of “tenancy
by [the] entiret[y]” was alone sufficient to demonstrate an intent to create a joint
tenancy. Id. at 103; accord Wood v. Wood, 571 S.W.2d 84, 85 (Ark. 1978) (reliance
on “tenants by entirety” as creating a joint tenancy with a right of survivorship);
Bove v. Bove, 149 A.2d 67, 68-69 (Pa. 1959) (same).
If more support were necessary, this deed supplies it. Beyond the use of
“tenants by the entirety,” the deed conveys the property to “the survivor’s personal
representatives and assigns.” Other courts have relied on similar language as
creating a joint tenancy with a right of survivorship. See, e.g., Powers, 347 S.W.2d
at 175 (“as tenants by entirety and to the survivor of them”); Hundley v. Neely, 365
14
P.2d 196, 196 (Wyo. 1961) (“his wife, or the survivor of them”); Michael v. Lucas,
137 A. 287, 287 (Md. 1927) (“his wife, as tenants by the entireties, the survivor of
them, his or her personal representatives and assigns”).
James Hamilton’s estate argues that James Hamilton was a handyman and
could not have understood the content of the deed; therefore, it is impossible to
discern his intent. Beyond speculation, his estate does not provide any evidence to
support that claim, and thus all there is to discern James Hamilton’s intent is the
language of the deed. Further, nothing in Coleman or Robinson suggests that the
parties involved had sophisticated legal knowledge, yet both courts discerned the
intent of the parties from the language of the deed alone. Accordingly, as did the
probate court, we conclude that the use of “tenan[cy] by the entirety, their assigns
and unto the survivor of them, and the survivor’s personal representatives and
assigns” indicates James Hamilton’s intent to create a right of survivorship. The
probate court thus properly interpreted the deed as creating a joint tenancy between
James Hamilton and Eric Hamilton. See Coleman, 286 F.2d at 102. After James
Hamilton’s death, Eric Hamilton became the sole owner of the property. And after
Eric Hamilton’s death, the property passed to his estate.
15
IV. Conclusion
For the foregoing reasons, the judgment of the Superior Court is affirmed.
So ordered.