In re Estate of Aryeh ( 2021 )

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Appellate Court Date: 2022.07.08
11:20:28 -05'00'
In re Estate of Aryeh, 2021 IL App (1st) 192418Appellate Court In re ESTATE OF MOSHE DAVID ARYEH, Deceased (Performance
Caption Food Group, Inc., Petitioner-Appellant, v. Shoshana Aryeh, Executor
of the Estate of Moshe David Aryeh, Deceased, Respondent-
Appellee).
District & No. First District, Sixth Division
No. 1-19-2418
Filed March 12, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 18-P-4358; the
Review Hon. Kent A. Delgado, Judge, presiding.
Judgment Affirmed.
Counsel on James S. Zmuda and Keisha N. Douglas, of Califf & Harper, P.C., of
Appeal Moline, for appellant.
Christopher M. Heintskill and Carrie A. Harington, of Levenfeld
Pearlstein, LLC, of Chicago, for appellee.
Panel JUSTICE ODEN JOHNSON delivered the judgment of the court, with
opinion.
Presiding Justice Mikva and Justice Harris concurred in the judgment
and opinion.
OPINION
¶1 This interlocutory appeal arises from an order of the circuit court denying petitioner,
Performance Food Group, Inc.’s (PFG), petition for declaration of interest in real estate that
was filed against the Estate of Moshe David Aryeh (Estate). On appeal, PFG contends that the
circuit court erred in finding that the property located at 6201 North Lawndale Avenue in
Chicago, Illinois (Lawndale Property) was not owned by decedent, Moshe David Aryeh
(David), and his wife, Shoshanna Aryeh (Shoshanna) as tenants in common but instead as joint
tenants with right of survivorship. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 The underlying facts are not in dispute.On June 25, 2018, PFG filed a petition for letters of
administration to collect against the Estate. In its petition, PFG alleged that David died on May
17, 2018, and that his place of residence at the time of his death was 6116 North Monticello
Avenue in Chicago, Illinois (Monticello Property). PFG later alleged, on information and
belief, that subsequent to October 21, 2010, David and Shoshanna maintained a homestead at
the Monticello Property as husband and wife. This was supported by a copy of a quit claim
deed filed on October 21, 2010, which transferred the Monticello Property to David and
Shoshanna in fee simple as tenants by the entirety.
¶4 PFG claimed that it was an interested party in the Estate because it had a judgment against
David that was entered in Rock Island County, Illinois, on December 15, 2017, in case No. 17-
L-99. PFG alleged that it made numerous attempts to discover David’s assets and collect its
judgment prior to David’s death. PFG further alleged that after David’s death it also attempted,
unsuccessfully, to serve Shoshanna for the purpose of discovering David’s assets for payment
of the judgment.
¶5 On August 8, 2018, PFG filed supplemental information, regarding its petition for letters
of administration to collect, alleging that subsequent to the filing of its petition, it discovered
a probate asset: the Lawndale Property. According to PFG’s pleading, on or about May 20,
2015, a warranty deed was filed “purportedly” transferring the Lawndale Property to David
and Shoshanna in fee simple as tenants by the entirety. PFG relied on section 1c of the Joint
Tenancy Act (Act) (765 ILCS 1005/1c (West 2018)), which provides that a valid tenancy by
the entirety applies only to property maintained or intended to be maintained as a homestead
by a husband and wife, and further that the instrument must expressly declare that the
conveyance was made to tenants by the entirety. Additionally, PFG pointed out that the deed
for the Lawndale Property expressly stated that it was not homestead property and that the
purported conveyance in tenancy by the entirety of the Lawndale Property was invalid and
unenforceable. As such, PFG maintained that the Lawndale Property was held as tenants in
common and accordingly did not automatically pass to Shoshanna through any rights of
survivorship, therefore making it a probate asset.
-2-
¶6 Subsequent to the filing of PFG’s initial pleadings, David’s last will and testament was
located and admitted to probate, whereby Shoshanna was appointed as executor of the estate.
Thereafter, PFG and other creditors filed their claims against the estate. 1 On November 5,
2018, PFG filed a claim for $244,006.07 plus interest indicating that the default judgment order
was recorded with the Cook County Recorder of Deeds as document No. 1822219127.
¶7 On December 27, 2018, PFG filed a petition to terminate independent administration by
Shoshanna as executor to protect its interest and that of the Estate’s other creditors. Among
other things, the petition alleged that David and Shoshanna improperly attempted to shield the
Lawndale Property from creditors by improperly titling it as a tenancy by the entirety, despite
their failure to meet the statutory requirements for such title.
¶8 On February 21, 2019, Shoshanna filed her response to PFG’s petition to terminate. In her
response, Shoshanna asserted that while she and David resided at the Monticello Property, they
purchased the Lawndale Property with the intention of completing construction and converting
it to their primary residence. However, David passed away before that occurred. Shoshanna
acknowledged that a married couple can only own one property as tenants by the entirety;
however, contrary to PFG’s position, she asserted that ownership of another property does not
automatically become a tenancy in common and thus an asset of the Estate.
¶9 On June 20, 2019, PFG filed a petition for declaration of interest in real estate, which is the
subject of this appeal. In that petition, PFG restated its prior allegations that the Lawndale
Property was held as tenants in common and was thus a probate asset.
¶ 10 The Estate filed its response to PFG’s petition on July 31, 2019, in which it reasserted its
prior arguments that the Lawndale Property was not the Estate’s property because section 1c
states that an estate shall, by operation of law, become a joint tenancy on the creation and
maintenance by both spouses together of other homestead property. The Estate further
maintained that, under the Act, the intention, but failure, to create a tenancy by the entirety
creates a joint tenancy. The Estate also noted that PFG failed to provide any authority to the
contrary.
¶ 11 In its August 6, 2019, response, PFG argued that the Estate failed to provide any evidence
demonstrating a valid tenancy by the entirety for the Lawndale Property, claiming instead that
the warranty deed was an invalid and unenforceable transfer to David and Shoshanna as tenants
by the entirety. PFG further contended that because the deed failed to expressly declare the
transfer to the parties as joint tenants, the default rule of tenants in common applied to the
Lawndale Property under the plain language of the Act.
¶ 12 On August 13, 2019, the circuit court heard argument on PFG’s petition for declaration of
interest in real estate. No report of proceedings or bystander’s report from this hearing is
included as part of the record on appeal. At the conclusion of the hearing, the circuit court
entered an order finding that after consideration of the filings and arguments of counsel, David
and Shoshanna intended to create the right of survivorship as to the Lawndale Property, thus
rendering joint tenancy. Additionally, the court determined that due to the right of survivorship,
the Lawndale Property was not an estate asset. Lastly, the court added Illinois Supreme Court
Rule 304(a) (eff. Mar. 8, 2016) language to the order, indicating that there was no just reason
to delay appeal of the ruling.
1
The record indicates that other claims were filed against the Estate during the pendency of this
matter; however, we will confine our discussion to PFG’s claim.
-3-
¶ 13 On August 29, 2019, PFG filed a motion to reconsider the circuit court’s declaration that
the Lawndale Property was held in joint tenancy. In support of its motion, PFG argued that the
circuit court’s reliance on Mittel v. Karl, 133 Ill. 65 (1890) was misplaced because (1) the facts
of the case were distinguishable and its holding inapplicable to this case, (2) the rule of law
has been replaced by subsequent rulings and is no longer valid, and (3) applying the current
rule of law requires a declaration that the Lawndale Property was held as tenants in common.
¶ 14 PFG contended that the facts of Mittel were plainly distinguishable because no words of
survivorship were included in the Lawndale property deed. Additionally, PFG contended that
the intention of the parties, when found, will be given effect if consistent with the language
used and with the law and public policy. PFG cited Tindall v. Yeats, 392 Ill. 502, 507 (1946),
and Porter v. Porter, 381 Ill. 322, 325 (1942), in support. PFG concluded that, when applying
the current rule of law, the Lawndale Property was held as tenants in common and that section
1c of the Act does not automatically convert an invalid tenancy by the entirety to a joint
tenancy. PFG maintained that the law governed, not the parties’ intent. PFG argued that the
circuit court’s declaration of joint tenancy in this case was contrary to the legal requirements
of the Act and could not stand.
¶ 15 The Estate filed its response on October 9, 2019, noting the standard for filing a motion to
reconsider and specifically noting that new legal theories or factual arguments should not be
raised at that time. The Estate contended that the circuit court correctly ruled that the Lawndale
Property was a joint tenancy pursuant to the Act, and that PFG’s motion to reconsider simply
raised the same arguments that were rejected by the circuit court in its initial ruling. Because
PFG failed to present any new facts or demonstrate how the court misapplied existing law, the
Estate concluded that the motion to reconsider should be denied.
¶ 16 PFG filed a reply on October 18, 2019, alleging that the Estate’s response showed a conflict
of interest because Shoshanna was both David’s spouse and the executor of the estate. PFG
further contended that the circuit court, in open court, expressly invited it to file a motion to
reconsider if it found any authority contrary to Mittel, which was the basis for the court’s ruling.
PFG concluded that the cases cited in its motion to reconsider establish that the circuit court’s
ruling was in error.
¶ 17 The court was not persuaded and denied PFG’s motion to reconsider on October 30, 2019.
PFG subsequently filed its timely notice of interlocutory appeal on November 25, 2019,
seeking review of the circuit court’s orders of August 13, 2019, and October 30, 2019. No
report of proceedings or bystander’s report from those court dates was included in the record
on appeal.
¶ 18 DISCUSSION
¶ 19 On appeal, PFG contends that the circuit court erred in finding that the Lawndale Property
was not owned by David and Shoshanna as tenants in common but instead as joint tenants with
right of survivorship.
¶ 20 A. Jurisdiction
¶ 21 Before we discuss the merits of PFG’s appeal, we must first determine whether we have
jurisdiction to hear the appeal. A reviewing court has a duty to sua sponte consider whether it
has jurisdiction and to dismiss an appeal if it lacks jurisdiction. In re Estate of Young, 2020 IL
-4-
App (2d) 190392, ¶ 16. The question of whether we have jurisdiction is a question of law,
which we review de novo. Mayle v. Urban Realty Works, LLC, 2020 IL App (1st) 191018,
¶ 36.
¶ 22 This case is an interlocutory appeal and PFG asserts that this court has jurisdiction pursuant
to Rule 304(a). Rule 304(a) provides, in pertinent part:
“If multiple parties or multiple claims for relief are involved in an action, an appeal
may be taken from a final judgment as to one or more but fewer than all of the parties
or claims only if the trial court has made an express written finding that there is no just
reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff.
Mar. 8, 2016).
¶ 23 The Illinois Constitution provides for appellate jurisdiction to hear appeals from all final
judgments entered in the circuit court. Ill. Const. 1970, art. VI, § 6. The constitution also grants
our supreme court the authority to provide by rule for appeals from less than final judgments.
Id. Judgments that dispose of separate, unrelated claims are immediately appealable under Rule
304(a), while orders that dispose of only separate issues related to the same claim are not
immediately appealable under Rule 304(a). The Carle Foundation v. Cunningham Township,
2017 IL 120427, ¶ 15. A judgment is final if it terminates and disposes of the parties’ rights
regarding issues in the suit, either on the entire case or on some definite and separate part of
the controversy, so that, if affirmed, the trial court has only to proceed with the execution of
judgment. Johnson v. Northwestern Memorial Hospital, 74 Ill. App. 3d 695, 697 (1979).
¶ 24 In the case at bar, PFG filed a petition for declaratory judgment, seeking to determine
whether the Lawndale Property was an estate asset for purposes of satisfying its judgment
against David. The circuit court entered a declaratory judgment that the Lawndale Property
was not an asset of the Estate and instead was held in joint tenancy with right of survivorship
to Shoshanna. We find that resolution of the petition was a separate claim from the Estate’s
probate proceedings, which are still pending in the circuit court, and further that it was a final
judgment as to the declaratory judgment action. As such, we conclude that this case is properly
before the appellate court and we have jurisdiction over the interlocutory appeal pursuant to
Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
¶ 25 B. Failure to File a Report of Proceedings or Certified Bystander’s Report
¶ 26 As an additional matter, it is necessary to note at the outset that PFG has failed to provide
any transcripts from any of the proceedings below. Therefore, we do not know what arguments
the parties made to the circuit court or the circuit court’s reasons, aside from what is written in
the order, for granting judgment in favor of the Estate.
¶ 27 It is the duty of every appellant in a reviewing court to provide a sufficient record to support
a claim of error. In the absence of such a record, the reviewing court will presume that the trial
court’s order was in conformity with established legal principles and had a sufficient factual
basis. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). In the absence of a proper record, a
reviewing court may dismiss the appeal or, alternately, summarily affirm the judgment of the
trial court. Marx Transport, Inc. v. Air Express International Corp., 379 Ill. App. 3d 849, 853
(2008). However, the failure to present a report of proceedings does not require automatic
dismissal or affirmance when the issues can be resolved on the record as it stands. Id.-5-
¶ 28 Here, we find that dismissal or summary affirmance is not necessary as the issues on appeal
can be resolved on the record. Hence, we will proceed to address the substantive issue raised
by PFG on appeal.
¶ 29 C. Analysis
¶ 30 1. Overall Standard of Review
¶ 31 This case is before the court on the denial of a request for declaratory judgment by PFG.
As a general matter, the grant or denial of a request for declaratory judgment rests within the
sound discretion of the trial court, and this court will not reverse such a decision absent an
abuse of that discretion. Muhammad v. Muhammad-Rahmah, 363 Ill. App. 3d 407, 414 (2006).
The burden of proof in a civil proceeding generally rests on the party seeking relief (id.) and
is always borne by the plaintiff in a declaratory judgment action (Empire Indemnity Insurance
Co. v. Chicago Province of the Society of Jesus, 2013 IL App (1st) 112346, ¶ 35).
¶ 32 2. The Lawndale Property Deed
¶ 33 Here, PFG contends that the Lawndale Property deed failed to properly convey title to
David and Shoshanna as tenants by the entirety, which reverts to a tenancy in common. In
reviewing this issue, we must construe the deed for the Lawndale Property.
¶ 34 In construing a deed, our primary goal is to ascertain the intent of the parties. Diaz v. Home
Federal Savings & Loan Ass’n of Elgin, 337 Ill. App. 3d 722, 727 (2002). To determine the
parties’ intent, a court must analyze “ ‘the specific words used in conjunction with the
circumstances under which they were drafted.’ ” Id. (quoting Warren-Boynton State Bank v.
Wallbaum, 123 Ill. 2d 429, 436 (1988)). In interpreting intent, like principles are applied to
deeds, trusts, and wills. Mitchell/Roberts Partnership v. Williamson Energy, LLC, 2020 IL App
(5th) 190339, ¶ 50. “ ‘The deed should be construed so as to carry out this intention, as gathered
from the instrument as a whole, and every word in the deed should be considered, and if
possible, given effect.’ ” Id. (quoting Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 467
(1991)).
¶ 35 Absent an ambiguity in the deed, the intention of the parties must be discerned solely from
the language of the instrument, without consideration of extrinsic factors. Estate of Jezewski v.
Jaworski, 2019 IL App (1st) 170100, ¶ 17. When its construction is in doubt, a deed is to be
interpreted most favorably for the grantee. Id. The construction of a deed normally presents a
question of law and is subject to de novo review. Diaz, 337 Ill. App. 3d at 725.
¶ 36 Tenancy by the entirety is an estate in real property provided for by the Act. Premier
Property Management, Inc. v. Chavez, 191 Ill. 2d 101, 105 (2000). Only spouses may hold
property in this estate. Id.; 765 ILCS 1005/1c (West 2018). Additionally, the estate is limited
to homestead property. Premier Property Management, Inc., 191 Ill. 2d at 105. This type of
ownership operates under the fictional assumption that a husband and wife are one for legal
purposes—it conveys the property to them as one person; they each own 100% of the property.
Marquette Bank v. Heartland Bank & Trust Co., 2015 IL App (1st) 142627, ¶ 11.
¶ 37 According to the tenancy by the entirety provision of the Code of Civil Procedure (Code)
(735 ILCS 5/12-112 (West 2018)), holding property in tenancy by the entirety protects spouses
in that the property cannot be sold to satisfy the debt of only one spouse. The exemption
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protects an innocent spouse from losing the marital home because of the individual debts of
his or her spouse. Marquette Bank, 2015 IL App (1st) 142627, ¶ 12.
¶ 38 According to the section 1c of the Act, tenancy by the entirety is a form of joint tenancy.
765 ILCS 1005/1c (West 2018). Our supreme court has defined a joint tenancy as “ ‘a present
estate in all the joint tenants, each being seized of the whole.’ ” Harms v. Sprague, 105 Ill. 2d
215, 224 (1984) (quoting Partridge v. Berliner, 325 Ill. 253, 257 (1927)). An inherent feature
of the estate of joint tenancy is the right of survivorship, which is the right of the last survivor
to take the whole estate. Id. Severance of a joint tenancy is accomplished when one tenant
voluntarily or involuntarily destroys one of the four unities (interest, title, time, or possession)
that are fundamental both to creation and perpetuation of the joint tenancy. In re Estate of
Martinek, 140 Ill. App. 3d 621, 629 (1986). Any act that destroys any of those unities changes
the estate into a tenancy in common, which extinguishes the right of survivorship. Id.¶ 39 In this case, the grantee clause of the October 15, 2014, deed for the Lawndale Property
stated as follows:
“The GRANTOR *** for valuable consideration of ten dollars ($10.00), and other
good and valuable consideration, cash in hand paid, the receipt and sufficiency of which
is hereby acknowledged, does hereby convey and warrant unto M. David Aryeh and
Shoshanna Aryeh Husband and Wife, as tenant by the entireties, and not joint tenants
or tenants in common, hereinafter ‘Grantees’, the following real estate, together with
all improvements located thereon, lying in the County of Cook, State of Illinois, to-wit:
***.”
¶ 40 Based on a reading of the plain language of the Lawndale Property deed, it is clear that the
parties intended to create a tenancy by the entirety for David and Shoshanna. It is undisputed
that when the deed for the Lawndale Property was executed and recorded, the plain language
evidenced an intent to create an interest in the property as tenants by the entirety, which
included a right of survivorship. It is also undisputed that David and Shoshanna owned the
Monticello Property as tenants by the entirety and resided in said property from a time prior to
obtaining ownership of the Lawndale Property until the time of David’s death. Pursuant to the
Act, David and Shoshanna could only hold title to a single homestead property as tenants by
the entirety. Thus, ownership in the Monticello property as tenants by the entirety survives,
while ownership in the Lawndale property as tenants by the entirety fails. Hence, we must now
determine the effect of an unsuccessful conveyance to grantees as tenants by the entirety:
specifically, whether the estate vests as a joint tenancy or tenancy in common. That
determination requires us to construe relevant portions of the Act.
¶ 41 3. Statutory Construction
¶ 42 To resolve the issue raised in this case, we must construe section 1c to determine when a
joint tenancy exists. See 765 ILCS 1005/1c (West 2018). Additionally, we must determine the
legal effect of the undisputed facts of this case, thereby presenting a question of mixed law and
fact. A mixed question of law and fact is one involving an examination of the legal effect of a
given set of facts. Anderson v. First American Group of Cos., 353 Ill. App. 3d 403, 407 (2004).
In a mixed question of law and fact, the historical facts are admitted or established, the rule of
law is undisputed, and the issue is whether the rule of law as applied to the established facts is
or is not violated. Id.-7-
¶ 43 Here, the question as to whether David and Shoshanna’s unsuccessful attempt to establish
title to the Lawndale Property as a tenancy by the entirety defaults to a joint tenancy or tenancy
in common presents a mixed question of law and fact. Our analysis is partly factual because
we must consider how the facts fall within the requirements of the Act. However, we also face
a legal question regarding interpretation of certain provisions of the Act.
¶ 44 Mixed questions of law and fact are subject to the clearly erroneous standard, which gives
less deference to the lower court’s decision. Carpetland U.S.A., Inc. v. Illinois Department of
Employment Security, 201 Ill. 2d 351, 369 (2002). We will reverse only if, after review of the
entire record, we are “left with the definite and firm conviction that a mistake has been
committed.” (Internal quotation marks omitted.) Id.¶ 45 a. Rules of Statutory Construction
¶ 46 When reviewing a statute, our primary goal is to determine and effectuate the legislature’s
intent, best indicated by giving the statutory language its plain and ordinary meaning. Cassidy
v. China Vitamins, LLC, 2018 IL 122873, ¶ 17. The statutory language, given its plain and
ordinary meaning, is generally the most reliable indicator of the legislative intent, but a literal
reading must fail if it yields absurd, inconvenient, or unjust results. Id. Courts are not at liberty
to depart from the plain language and meaning of a statute by inferring exceptions, limitations,
or conditions that the legislature did not express. Illinois State Treasurer v. Illinois Workers’
Compensation Comm’n, 2015 IL 117418, ¶ 21.
¶ 47 One of the fundamental principles of statutory construction is to view all provisions of an
enactment as a whole. Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007). Accordingly, words
and phrases must be interpreted in light of other relevant provisions of the statute and not
construed in isolation. Id. Additionally, we interpret statutes as a whole, rejecting an
interpretation that exalts one provision of a statutory scheme over another. Van Milligen v.
Department of Employment Security, 373 Ill. App. 3d 532, 538-39 (2007).
¶ 48 b. Statutory Framework
¶ 49 We begin by outlining the relevant statutory provisions to our discussion. They are found
both in the Act and in the Code and are set forth below.
¶ 50 Section 1 of the Act defines joint tenancy and explains the presumption of tenancy in
common and survivorship rights. That section provides, in pertinent part:
“No estate in joint tenancy in any lands *** shall be held or claimed under any grant,
legacy or conveyance whatsoever heretofore or hereafter made, other than to executors
and trustees, unless the premises therein mentioned shall expressly be thereby declared
to pass not in tenancy in common but in joint tenancy; and every such estate other than
to executors and trustees (unless otherwise expressly declared as aforesaid, or unless,
as to a devise or conveyance of homestead property, expressly declared to pass to a
husband and wife as tenants by the entirety in the manner provided by Section 1c), shall
be deemed to be in tenancy in common and all conveyances *** wherein the premises
therein mentioned were or shall be expressly declared to pass not in tenancy in common
but in joint tenancy, are hereby declared to have created an estate in joint tenancy with
the accompanying right of survivorship ***.” 765 ILCS 1005/1 (West 2018).
-8-
¶ 51 Section 1c of the Act governs devises, conveyances, assignments, or other transfers of
property made to tenants by the entirety. That section provides, in pertinent part:
“Whenever a devise, conveyance, assignment, or other transfer of property ***
maintained or intended for maintenance as a homestead by both husband and wife
together *** and the instrument of devise, conveyance, assignment, or transfer
expressly declares that the devise or conveyance is made to tenants by the entirety, ***
the estate created shall be deemed to be in tenancy by the entirety. *** Subject to the
provisions of paragraph (d) of Section 2 and unless otherwise assented to in writing by
both tenants by the entirety, the estate in tenancy by the entirety so created shall exist
only if, and as long as, the tenants are and remain married to each other, and upon the
death of either such tenant the survivor shall retain the entire estate; provided that, upon
a judgment of dissolution of marriage or of declaration of invalidity of marriage, the
estate shall, by operation of law, become a tenancy in common until and unless the
court directs otherwise; provided further that the estate shall, by operation of law,
become a joint tenancy upon the creation and maintenance by both spouses together of
other property as a homestead. A devise, conveyance, assignment, or other transfer to
2 grantees who are not in fact husband and wife that purports to create an estate by the
entirety shall be construed as having created an estate in joint tenancy.” Id. § 1c.
¶ 52 Section 12-112 of the Code governs the enforcement of judgments. That section provides,
in pertinent part:
“Any real property, any beneficial interest in a land trust, or any interest in real property
*** held in tenancy by the entirety shall not be liable to be sold upon judgment entered
on or after October 1, 1990 against only one of the tenants, except if the property was
transferred into tenancy by the entirety with the sole intent to avoid the payment of
debts existing at the time of the transfer beyond the transferor’s ability to pay those
debts as they become due.” 735 ILCS 5/12-112 (West 2018).
¶ 53 4. Effect of a Failed Tenancy by the Entirety Conveyance
¶ 54 Turning our attention to the situation presented in this case, we note that neither party cites,
nor have we found, any case that determines the effect of a failed tenancy by the entirety
conveyance pursuant to section 1c of the Act. Thus, we are presented with an issue of first
impression. Here, PFG contends that under section 1c, such ownership reverts to a tenancy in
common while the Estate conversely asserts that section 1c provides that such ownership
reverts to a joint tenancy. See 765 ILCS 1005/1c (West 2018).
¶ 55 We find it instructive to review past decisions of our supreme court that have determined
the effect of an attempted joint tenancy conveyance that failed to meet all the requirements
necessary to be effective. 2 As discussed earlier, tenancy by the entirety is a form of joint
tenancy expressly reserved for married couples, pursuant to the statute. In 1890, our supreme
court in Mittel found that a deed properly established a joint tenancy although the deed failed
to expressly state that the conveyance was a joint tenancy. Mittel, 133 Ill. at 71. In that case,
the deed conveyed the property to a husband and wife and “ ‘the survivor of them, in his or her
own right.’ ” Id. at 67. In construing the deed, the court determined that the conveyance was
2
Although tenancy by the entirety had not been created when these cases were decided, we find the
assessment of joint tenancy is helpful for purposes of our analysis.
-9-
intended to provide for right of survivorship, despite failing to expressly specify joint tenancy.
Id. at 71. In making that determination, the court looked to the intent of the parties. Id. The
court then noted that the spouses initially owned the property as tenants in common prior to
the second conveyance, so it was unnecessary to convey it to a third party to reconvey it to
them with right of survivorship. Id. The court concluded that there was no way to hold that the
parties intended tenancy in common without rejecting the right of survivorship clause in the
deed, and there was no rule of construction under which that could be done. Id. The court held
that the intent of the parties, as manifested by the language employed in the deed, should be
carried into effect and noted that the conveyance violated no common law rule or statute. Id.¶ 56 In Porter, a case decided in 1942, our supreme court found that the husband’s attempt to
convey property to himself and his spouse as joint tenants failed. Porter, 381 Ill. at 324-25.
The law at the time did not allow a grantor to convey property to himself, which therefore
made the conveyance improper as a matter of law because the four unities of creating a joint
tenancy were incomplete, despite the intention of the parties. Id. at 329. However, since that
time, we note that the law changed to allow a grantor to convey property to himself without
the use of a straw buyer. See 765 ILCS 1005/1b (West 2018).
¶ 57 In Tindall, decided in 1946, a deed conveyed property to two parties as tenants in common
on May 31, 1939. Tindall, 392 Ill. at 504. On the same date, the parties executed a contract that
created a life estate in one of the parties and further stated that the agreement should not affect
the joint tenancy of the real estate. Id. On June 4, 1941, after discovering the mistake on the
deed, one of the parties and her husband conveyed the property to a third party who
subsequently reconveyed it back to the parties as joint tenants. Id. at 504-05. The court
concluded that the contract and the deeds must be construed together, and it was clear that the
parties intended both a life estate and a joint tenancy. Id. at 510. The court found that the
parties’ intention was clear and did not violate any rule of law or public policy and should be
enforced. Id. at 510-11.
¶ 58 Here, as previously noted, the deed to the Lawndale Property, which conveyed ownership
to David and Shoshanna from a third party, expressly declared that ownership was conveyed
to them, husband and wife, as tenants by the entirety. Also as previously noted, a tenancy by
the entirety, as a form of joint tenancy, creates a right of survivorship. We find that such
language in the deed evidenced the intent of the parties to create an estate with right of
survivorship. We further note that, contrary to PFC’s assertion on appeal, the statement that
the Lawndale Property was “not homestead property” in the warranty deed was included as
part of the Grantor’s release and waiver of all rights under and by virtue of the homestead laws
of the State of Illinois. There is no indication on the face of the instrument that such statement
applied to or was intended to apply to David and Shoshanna’s ownership of the property.
However, we also find that the parties’ intention to create a tenancy by the entirety was not
fully realized as they already owned the Monticello Property as tenants by the entirety and
could only own one homestead property as tenants by the entirety at a time.
¶ 59 Based on our review of sections 1 and 1c of the Act (765 ILCS 1005/1, 1c (West 2018)),
as well as our supreme court cases that construed deeds purporting to establish joint tenancy,
we disagree with PFG’s contention that the current rule of law regarding deed construction
requires a determination that the Lawndale Property deed created a tenancy in common.
Instead, we find that the unsuccessful creation of a tenancy by the entirety in a deed to a married
couple simply becomes a joint tenancy.
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¶ 60 This conclusion is supported by three provisions contained in section 1c: (1) when spouses
get divorced or have their marriage invalidated, their ownership estate becomes a tenancy in
common, (2) when spouses create and maintain other property as a homestead their ownership
estate in the original property becomes a joint tenancy, and (3) a conveyance made to grantees
who are not husband and wife that purported to create a tenancy by the entirety is construed as
having created a joint tenancy. Id. § 1c. Contrary to PFG’s assertion that an unrealized
intention to create a tenancy by the entirety reverts to a tenancy in common, the only such
reversion specifically contained in that section occurs upon dissolution or invalidation of
parties’ marriage, as noted herein. This conclusion is further supported by the general rule
concerning the legal effect of a divorce decree upon property rights, namely that divorce
terminates those property rights and interests of the divorced persons that are not actually
vested in the property of each other that are dependent upon the marriage relationship unless
preserved by statute. In re Estate of Woodshank, 27 Ill. App. 3d 444, 447 (1975) (citing Bulger
v. Bulger, 291 Ill. App. 233, 235-36 (1937)); see also Seuss v. Schukat, 358 Ill. 27, 35-36
(1934).
¶ 61 There has been no change to the rules of deed construction since our supreme court decided
the Mittel case in 1890, and we give effect to the parties intent where it is not contradicted by
law or public policy. David and Shoshanna intended to hold the property as tenants by the
entirety, which included a right of survivorship. Shoshanna indicated to the circuit court that
they intended to renovate and move into the Lawndale Property, but David died before that
occurred. Because they already owned another homestead property as tenants by the entirety
(the Monticello Property), under section 1c, ownership of the Lawndale Property became a
joint tenancy. We find that our conclusion that David and Shoshanna owned the Lawndale
Property as joint tenants with a right of survivorship is not contrary to law or public policy,
despite PFG’s unsupported arguments to the contrary.
¶ 62 Accordingly, we conclude that the circuit court’s finding that the Lawndale Property was
held in joint tenancy was not clearly erroneous. We are not left with the definite and firm
conviction that a mistake has been committed. As such, the trial court’s denial of PFG’s request
for a declaratory judgment was not an abuse of discretion.
¶ 63 CONCLUSION
¶ 64 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 65 Affirmed.
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