Morris v. McCarty , 158 Mass. 11 ( 1893 )

Allen, J.

The deed could not have the effect to create an estate in entirety, because the grantees were not in fact husband and wife, though described as such by the grantors. The question therefore is whether the grantees became joint tenants or tenants in common.

The deed was given in 1886, and is therefore subject to St. 1885, c. 237, under which a deed must be construed to create an estate in common, unless, by its true construction, it is expressed therein that the grantees are to take the land jointly or as joint tenants, 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.

An estate in entirety is an estate in joint tenancy, but with the limitation that during their joint lives neither the husband nor the wife can destroy the right of survivorship without the assent of the other party. Donahue v. Hubbard, 154 Mass. 537, and cases there cited. The doctrine of survivorship is the distinguishing incident of title by joint tenancy. 4 Kent Com. 360. 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 features of an estate in entirety. Judgment affirmed.