Evans v. Evans ( 2015 )


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  • Present: Lemons, C.J., Goodwyn, Millette, Mims, Powell, and
    Kelsey, JJ., and Koontz, S.J.
    WILLIAM D. EVANS, IN HIS CAPACITY
    AS TRUSTEE OF THE WANDA S. EVANS TRUST
    OPINION BY
    v.   Record No. 141277   SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
    June 4, 2015
    WAYNE L. EVANS, INDIVIDUALLY AND
    AS THE PERSONAL REPRESENTATIVE OF
    DOUGLAS E. EVANS, DECEASED, ET AL.
    FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
    Keary R. Williams, Judge
    In this appeal, we consider as an issue of first
    impression in Virginia whether one spouse with an ownership as
    a tenant by the entirety in real property may, by his or her
    sole act, convey that ownership to the other spouse to create
    a fee simple estate in the grantee spouse.
    BACKGROUND
    On November 26, 1973, Douglas E. Evans and Wanda S.
    Evans, husband and wife, obtained title to a parcel of real
    property known as 605 Fairway Drive in the Town of Bluefield
    in Tazewell County (the "Fairway Drive property") as tenants
    by the entirety with right of survivorship by way of a deed
    from Ply Developing Corporation.   On December 27, 1976,
    Douglas executed a general warranty deed (the "1976 deed")
    that purported to convey to Wanda "all of his interest" in the
    Fairway Drive property in exchange for both "love and
    affection" and "ten dollars, cash-in-hand paid."   The 1976
    deed identified Douglas as the sole grantor, naming Wanda only
    as the grantee.
    For reasons not explained in the record, the 1976 deed
    was not recorded in the land records of Tazewell County in
    Deed Book 456, page 322 until April 11, 1979.   Nor does the
    record provide direct evidence that prior to it being
    recorded, Wanda accepted physical delivery of the 1976 deed or
    that it was she who caused the deed to be recorded.
    Douglas and Wanda had three sons, William D. Evans, Lloyd
    David Evans and Wayne Lewis Evans.   Wayne has two children,
    Lisa Marie Evans and Jason Lloyd Evans.   On February 2, 1993,
    Wanda executed a trust agreement creating a revocable inter
    vivos trust designated as the Wanda S. Evans Trust (the
    "trust").
    Under the pertinent terms of the trust, upon Wanda's
    death the assets were to be distributed as follows:
    •    $25,000 each individually to her grandchildren Lisa
    and Jason, to be held in separate trusts by William
    until each grandchild reached the age of 30;
    •    A life estate to Douglas in the Fairway Drive
    property including household goods, if he survived
    Wanda at her death;
    •    The remainder of the trust assets, including the
    Fairway Drive property and the household goods, to
    William.
    In the trust Wanda expressly made no provision for Wayne and
    Lloyd to receive any assets of the trust.   The trust further
    2
    provided that William was to serve as an alternate successor
    trustee.    At all times relevant to the litigation in this
    appeal, William served in that capacity after Wanda's death
    and the death of the first named successor trustee.
    Contemporaneous with the creation of the trust, Wanda
    executed a deed which purported to convey by general warranty
    "all of her interest in" the Fairway Drive property to herself
    as trustee of the trust (the "1993 deed").    The 1993 deed
    identifies the property as "being the same interest in real
    estate conveyed to [Wanda] by deed dated February 2, 1993
    [sic], from Douglas E. Evans, which deed is of record in . . .
    Deed Book 456, page 322." 1
    Wanda died testate on April 18, 1994.    At the time of her
    death, she and Douglas were residing in the Fairway Drive
    property.   Under the terms of her will, which was executed the
    same day as the 1993 deed and the trust, any property
    remaining in her estate was to pour over into the trust.
    Consistent with the provisions of the trust, her will also
    purports to bequeath the Fairway Drive property to William
    subject to a life estate in Douglas.
    1
    Although the 1993 deed misstates the record date of the
    1976 deed, it correctly identifies that deed by its location
    in the land records. Because the 1993 deed was not challenged
    on this discrepancy, we will treat it as a scrivener's error.
    3
    Following Wanda's death, title to the Fairway Drive
    property became a subject of dispute principally between Wayne
    and William.    On April 17, 1995, Wayne, as next friend of Lisa
    and Jason, filed a declaratory judgment action in the Circuit
    Court of Tazewell County against Douglas, William and the
    executor of Wanda's estate.     Therein, Wayne asserted that the
    trust failed on numerous grounds.     As pertinent to this
    appeal, Wayne asserted that the 1993 deed was ineffective to
    transfer any interest in the Fairway Drive property to the
    trust because "neither spouse can sever an estate by the
    entireties or convey or dispose of any part of it . . . by his
    or her sole act."    Implicit in this assertion was the further
    assertion that the 1976 deed was ineffective to convey
    Douglas' interest in the Fairway Drive property to Wanda by
    his sole act.    Thus, Wayne contended that Wanda "had no
    separate estate or interest in" the Fairway Drive property
    which she could convey by deed to the trust or devise in her
    will.
    On November 13, 1995, the circuit court ruled that "no
    actual controversy" existed between the parties and dismissed
    the complaint without prejudice.      Thereafter, on November 30,
    1995, Wayne, both as next friend of his children and
    individually, William, Douglas, and Wanda's executor entered
    into a mutual release and settlement agreement.     As relevant
    4
    to this appeal, the parties to the settlement agreed that
    Douglas would be permitted to remain in the Fairway Drive
    property until his death and further was to receive a payment
    of $81,869.63 from Wanda's estate in "full satisfaction of his
    claims against the estate, whether under the Trust, the Will,
    his elective share or otherwise."   Douglas expressly "waive[d]
    any right he may have to [the Fairway Drive property] except
    for his life interest."   Douglas continued to live in the
    Fairway Drive property until his death on March 12, 2012.
    On November 19, 2012, William, in his capacity as trustee
    of the trust, filed a declaratory judgment action against
    Wayne, both individually and as personal representative of
    Douglas' estate, Lloyd, Lisa and Jason in the circuit court
    seeking to quiet title in the Fairway Drive property.   An
    amended complaint was filed on February 22, 2013.   As alleged
    therein, Wayne and Lloyd asserted a claim of ownership in the
    Fairway Drive property through Douglas' estate, contending
    that title to the property had remained in Douglas and Wanda
    as tenants by the entirety at the time of Wanda's death and,
    thus, that it became Douglas' property in fee simple as the
    survivor.
    Wayne and the other defendants (collectively, "Wayne")
    filed an answer in which they acknowledged the claim that the
    Fairway Drive property had remained as an estate by the
    5
    entirety in Douglas and Wanda.   This was so, they contended,
    because the 1976 deed was ineffective to divest Douglas of his
    interest since it was not executed both by Douglas and Wanda
    as grantors.
    William and Wayne filed cross-motions for summary
    judgment, the respective positions of which parallel the
    arguments made in this appeal.   In summary, William maintained
    that the 1976 deed was effective because Douglas and Wanda
    "joined" in the deed as grantor and grantee.   He further
    maintained that even if the 1976 deed was technically
    deficient, the equitable doctrine of estoppel by deed should
    prevent Douglas' estate from seeking an interest in the
    property.   Finally he contended that the settlement agreement
    barred Douglas' estate from asserting that Douglas had any
    interest other than a life estate in the Fairway Drive
    property.
    In response, Wayne maintained that the 1976 deed was
    ineffective because tenants by the entirety must join as
    grantors to convey any interest in the property, even if the
    conveyance is to one of them individually.   He further
    maintained estoppel by deed was inapplicable where the deed
    relied upon was void, and not merely technically deficient.
    Finally, Wayne denied that the settlement agreement was
    applicable to the Fairway Drive property because neither the
    6
    trust nor Wanda's estate ever had ownership of the property
    and, thus, the trust could not assert a claim of ownership
    based on Douglas' waiver of any interest he might have had in
    the property.
    Following argument on the cross-motions, the circuit
    court issued an opinion letter dated October 10, 2013 in which
    it concluded that the 1976 deed failed to show the requisite
    intent to "jointly transfer[]" the Fairway Drive property to
    Wanda in fee simple and thus, because that deed was
    ineffective, the 1993 deed was likewise ineffective to
    transfer any interest to the trust.    The circuit court
    concluded that William could not rely upon the equitable
    doctrine of estoppel by deed "due to the invalidity of the
    1976 conveyance."    The court entered an order dated December
    17, 2013 sustaining Wayne's motion for summary judgment, but
    retaining jurisdiction over the case to consider a motion for
    reconsideration which had been filed by William on December 5,
    2013.
    In the motion for reconsideration, William, among other
    things, asked the circuit court to make an express ruling as
    to the effect of the November 30, 1995 settlement agreement.
    William asserted that the settlement agreement constituted a
    waiver of any claim that Douglas, and by extension his estate,
    7
    had on the Fairway Drive property, thus effectively validating
    the 1976 deed.
    In a hearing on the motion for reconsideration, the
    circuit court acknowledged that it had not expressly addressed
    the effect of the settlement agreement, but that "it was
    implicitly addressed."    Accordingly, the court ruled that its
    judgment did not violate the terms of the agreement.   By a
    final order dated May 27, 2014, the court denied the motion
    for reconsideration and entered final judgment for Wayne.     We
    awarded William this appeal.
    DISCUSSION
    William assigns error to the circuit court's rulings that
    the 1976 deed was ineffective and, therefore, failed to
    terminate Douglas' and Wanda's tenancy by the entirety in the
    Fairway Drive property.   He further assigns error to the
    court's correlative rulings that neither estoppel by deed nor
    the terms of the settlement agreement barred Douglas' estate
    from asserting ownership of the Fairway Drive property.
    We review questions regarding the validity and effect of
    deeds and other written legal documents de novo.   See Ott v.
    L&J Holdings, LLC, 
    275 Va. 182
    , 187, 
    654 S.E.2d 902
    , 904
    (2008).   Because the dispositive issue in this case, as
    recognized by the circuit court and the parties, is whether
    the 1976 deed effectively terminated Douglas' tenancy by the
    8
    entirety ownership in the Fairway Drive property, leaving
    Wanda as the sole owner in fee simple, we begin our analysis
    with a review of our prior decisions regarding ownership of
    real property as tenants by the entirety.
    Virginia is one of about two-dozen states that continue
    to recognize tenancies by the entirety.    See Bunker v. Peyton,
    
    312 F.3d 145
    , 151 (4th Cir. 2002).    Tenancy by the entirety is
    a legal fiction "'based upon the same four unities that
    support joint tenancies [plus] a fifth unity . . . of
    marriage.'"     Rogers v. Rogers, 
    257 Va. 323
    , 326, 
    512 S.E.2d 821
    , 822 (1999)(quoting Jones v. Conwell, 
    227 Va. 176
    , 181,
    
    314 S.E.2d 61
    , 64 (1984)); see also Pitts v. United States,
    
    242 Va. 254
    , 258-59, 
    408 S.E.2d 901
    , 903 (1991).
    It is well established that specific consequences flow
    from the addition of this fifth unity.    First, during the
    marriage, neither spouse may make an absolute disposition of
    property held as tenants by the entirety "by his or her sole
    act."    Hausman v. Hausman, 
    233 Va. 1
    , 3, 
    353 S.E.2d 710
    , 711
    (1987).    Second, consistent with this restriction on
    alienability, no creditor of only one spouse can attach
    property held by both spouses as tenants by the entirety.
    
    Pitts, 242 Va. at 258-59
    , 408 S.E.2d at 903.    Finally, so long
    as the property remains held by them as tenants by the
    entirety, upon the death of one spouse, ownership of the
    9
    property will pass to the other in fee simple outside the
    estate of the deceased spouse.    Vasilion v. Vasilion, 
    192 Va. 735
    , 740, 
    66 S.E.2d 599
    , 602 (1951).
    While these principles have been applied in many cases
    extending to the earliest decisions of this Court, see, e.g.,
    Thornton v. Thornton, 24 Va. (3 Rand.) 179 (1825), a careful
    review of these cases reveals that, unlike the current case,
    they primarily involved either a security interest of or a
    conveyance to a third party.     See, e.g., 
    Hausman, 233 Va. at 3
    , 353 S.E.2d at 711 (1987)(refusing to prioritize lien on
    marital property granted by only one spouse); Waskey v.
    Thomas, 
    218 Va. 109
    , 113, 
    235 S.E.2d 346
    , 349 (1977)(granting
    rescission where grantee obtained deed signed by only one
    spouse).   Thus, the question whether a deed executed by one
    spouse purporting to convey his or her ownership in a property
    held by the entirety to the other spouse is one of first
    impression in Virginia.
    Wayne contends that the circuit court correctly ruled
    that any conveyance of ownership in property held by the
    entirety must be joined by both spouses as grantors.    In
    support of this contention, he relies heavily on our decision
    in Vasilion.
    In Vasilion, we considered whether a judgment creditor of
    the husband was entitled to rescission of a deed in which the
    10
    husband and wife jointly conveyed a property held by them as
    tenants by the entirety to the wife solely on the ground that
    the purpose of the deed was to put the property beyond the
    reach of the 
    creditor. 192 Va. at 738
    , 66 S.E.2d at 601.
    Concluding that the trial court did not err in refusing to
    rescind the deed, we based our decision on the fact that the
    property could not have been attached by the creditor prior to
    the conveyance, because the debt was not a "joint debt[] of
    both spouses."   
    Id. at 740,
    66 S.E.2d at 602.    In so doing, we
    noted that "husband and wife unquestionably can join in a deed
    conveying the entirety to a third party, and in
    Virginia[, Code § 55-9] permits a husband and wife to join in
    a deed conveying land to himself or herself."     
    Id. Emphasizing the
    latter part of this statement, Wayne contends
    that property held by spouses as tenants by the entirety may
    only be conveyed to one of them when both join in the deed as
    grantors.   We disagree.
    First, we note that in Vasilion the validity of the deed
    to the wife would not have altered our holding that the
    judgment creditor could not have attached the property prior
    to the conveyance.   Thus, while we held that the deed to the
    wife was effective because both spouses joined as grantors in
    the deed, this does not resolve the question whether both
    11
    spouses must join as grantors in a deed purporting to convey
    property held as tenants by the entirety solely to one spouse.
    This case presents the first opportunity for the Court to
    resolve the issue whether under any circumstance one spouse
    (the "grantor-spouse") may effectively convey all of his or
    her ownership in property held in a tenancy by the entirety to
    the other spouse (the "grantee-spouse") who does not join in
    the deed as grantor.   While the best practice would still be
    for both spouses to join as grantors in a deed to one of them
    separately, for the reasons that follow we hold that where
    there is sufficient evidence of the intent of the grantor-
    spouse to make such a conveyance and, likewise, of voluntary
    acceptance of the conveyance by the grantee-spouse, the
    requirement of mutual consent in the conveyance is met.
    In discussing the requisites for a valid deed, voluntary
    acceptance by the grantee is often discounted as a formality
    that is subsumed within the prerequisite delivery of the deed
    to the grantee.   As we observed long ago in Skipwith v.
    Cunningham, 35 Va. (8 Leigh) 271, 282 (1837), "the assent of
    the grantee is implied in all conveyances; first, because of
    the supposed benefit; secondly, because it is incongruous and
    absurd that when a conveyance is completely executed on the
    grantor's part, the estate should continue in him; thirdly, to
    prevent the uncertainty of the freehold."   Nonetheless, the
    12
    role of the grantee to a conveyance is not a passive one.
    "Delivery indeed to the grantee himself implies acceptance by
    him; but as such delivery is not always to him in person, the
    necessity of immediate acceptance is not implied in the
    necessity of a delivery."   
    Id. at 281.
    "That act [of delivery of the deed] indeed cannot compel
    the grantee to take against his will, but it is, as to the
    grantor, a complete and consummate act before that will is
    declared, although it may be avoided by the dissent of the
    grantee.   No [person] indeed can be forced to take an estate
    against his will; but the law on the other hand presumes that
    every estate, given by will or otherwise, is beneficial to the
    party to whom it is given, until he renounces it."    
    Id. at 281.
      The rule laid down in Skipwith nearly two centuries ago
    remains the law of the Commonwealth today.    See, e.g., Langman
    v. Alumni Ass'n of the Univ. of Va., 
    247 Va. 491
    , 500, 
    442 S.E.2d 669
    , 675 (1994)("Acceptance on the part of the grantee
    is implied, because the conveyance is presumed to be
    beneficial, unless the grantee refuses to accept the deed by
    some act of renunciation, dissent, disagreement, or
    disclaimer.").
    This is not to say that in the case of tenants by the
    entirety that implied acceptance by the fact of a purported
    delivery will be sufficient to prove the validity of the deed,
    13
    for the consent of the grantee-spouse must be affirmative in
    order to satisfy the requirement of mutual consent.    The
    grantee-spouse's acceptance must be affirmative in order to
    avoid any mischief that might result in the rare case where
    conversion of an entirety ownership to a fee simple ownership
    would not be beneficial to the grantee-spouse. 2   Accordingly,
    we turn to consider whether the record in this case
    establishes that Wanda affirmatively accepted the conveyance
    from Douglas under the 1976 deed and, thus, gave her consent
    to the dissolution of the tenancy by the entirety.
    Douglas’ unilateral execution of the 1976 deed plainly is
    sufficient to establish his intent to divest himself of his
    tenancy by the entirety ownership in the Fairway Drive
    property in favor of a fee simple ownership in Wanda.
    However, there is no evidence as to how, when or to whom the
    deed was delivered, nor can it be established from the record
    who caused the deed to be recorded in 1979.   As of 1979, at
    2
    For example, where the spouses are estranged, one spouse
    might attempt to be divested of an interest in property that
    was environmentally contaminated or otherwise undesirable by
    surreptitiously recording a deed purporting to convey a fee
    simple interest to a grantee-spouse. Such a deed would be
    ineffective, however, because there would be no evidence of
    mutual consent. Indeed, in such a case, even actual delivery
    of the deed to and acceptance by the grantee-spouse in person
    might not be sufficient if the evidence showed that the
    acceptance was made without knowledge of the undesirable
    nature of the property or other fraudulent purpose by the
    grantor-spouse.
    14
    best there was only an implied delivery to and acceptance of
    the deed by Wanda.
    Nevertheless, Wanda's execution in 1993 of a deed, trust
    and will, which each addressed her ownership of the Fairway
    Drive property as her separate property, is clear evidence of
    her affirmative intent to accept the 1976 deed and thereby her
    consent to the dissolution of the tenancy by the entirety to
    create her fee simple ownership of the property.    The specific
    reference in the 1993 deed to the conveyance to her by the
    1976 deed removes any doubt that Wanda could have believed she
    still was seized only of a tenancy by the entirety ownership
    in the property.    Based on the record in this particular case,
    there is sufficient evidence to establish the mutual consent
    of Douglas and Wanda to the conversion of their tenancy by the
    entirety ownership of the Fairway Drive property to the fee
    simple ownership in Wanda.    Thus, the circuit court erred in
    finding that the 1976 deed was not valid to accomplish its
    object. 3   It then follows that the 1993 deed would likewise
    have been valid to transfer Wanda's fee simple interest to the
    trust.
    3
    Our resolution of this issue in William's favor moots
    his further assignments of error challenging the circuit
    court's failure to apply the doctrine of estoppel by deed or
    to interpret the settlement agreement as waiving any claim by
    the estate to the Fairway Drive property. Accordingly, we
    express no opinion on those issues.
    15
    CONCLUSION
    For these reasons, we hold that the circuit court erred
    in finding that the 1976 deed was ineffective and void.    We
    will reverse the judgment of the court in favor of Wayne and
    enter final judgment for William confirming that the Fairway
    Drive property is the property of the trust, as is already
    reflected in the land records of Tazewell County.
    Reversed and final judgment.
    JUSTICE POWELL, with whom CHIEF JUSTICE LEMONS and JUSTICE
    MIMS join, concurring.
    Although I agree with the outcome of this case, I cannot
    agree with the majority’s rationale.    According to the
    majority, evidence of mutual consent is all that is necessary
    for one spouse to convey his interest in a tenancy by the
    entirety to the other spouse.   I disagree with the majority
    because, in my opinion, it ignores the fundamental nature of
    tenancies by the entirety, creates an incorrect standard for
    reviewing such conveyances, and unnecessarily creates an
    exception to longstanding principles of law that could
    potentially, as demonstrated by the facts at bar, create
    uncertainty as to ownership.
    This Court has long recognized that “[n]either spouse can
    by separate act make an absolute disposition of property they
    16
    hold as tenants by the entirety.”    Rogers v. Rogers, 
    257 Va. 323
    , 326, 
    512 S.E.2d 821
    , 822 (1999) (quoting Jones v.
    Conwell, 
    227 Va. 176
    , 181, 
    314 S.E.2d 61
    , 64 (1984)).     This is
    because tenancies by the entirety are based on the legal
    fiction that husband and wife are one entity.    
    Id. As husband
    and wife are one, “neither [spouse] has an interest [in the
    property] which can be conveyed.”    Vasilion v. Vasilion, 
    192 Va. 735
    , 742, 
    66 S.E.2d 599
    , 603 (1951).   Indeed, it is the
    very fact that neither spouse has an individual interest in
    the property that protects the tenancy by the entirety from
    judgments against only one spouse.    
    Id. at 742-43,
    66 S.E.2d
    at 603-04.
    Notably, in the 1976 deed, Douglas purported to convey
    “all of his interest” in the Fairway Drive property.    If
    Douglas, as an individual, held any interest in the Fairway
    Drive property which he could unilaterally convey, that
    interest would be reachable by any of Douglas’ creditors.
    Clearly, that is not the case because, as previously noted,
    Douglas’ interest in the Fairway Drive property amounts to no
    interest at all.   Thus, it is clear that Wanda and Douglas,
    jointly as husband and wife, held all of the interest in the
    Fairway Drive property.
    Notwithstanding the fact that Douglas had no individual
    interest in the Fairway Drive property, “it is settled beyond
    17
    debate that . . . tenants by the entirety [have] no power to
    alienate permanently their interest, unless they act[]
    together.”    
    Jones, 227 Va. at 182
    , 314 S.E.2d at 65 (emphasis
    added).     See also Vasilion, 192 Va. at 
    740, 66 S.E.2d at 602
    (“When an estate by the entireties is once set up, neither
    spouse can sever it by his or her sole act.”).     Given that
    Douglas and Wanda’s actions in the present case occurred over
    16 years apart, it can hardly be said that they acted
    together.    Indeed, there is no evidence in the record that
    Wanda was even aware of Douglas’ unilateral actions until she
    executed the 1993 deed.
    Further, the majority fails to explain the state of the
    property between the time it is conveyed by one spouse and the
    time such conveyance is accepted by the other.     I recognize
    that this may be of little consequence in a case where the
    conveyance and acceptance occur simultaneously, but a coherent
    doctrine must also account for cases like the present, where
    the gap between unilateral conveyance and affirmative
    acceptance is measured in years.      When does the tenancy by the
    entirety actually terminate: on the date of the initial
    conveyance, on the date the deed is recorded, or on the date
    it is affirmatively accepted?    I recognize that such questions
    may have little bearing on the present case, but they will
    likely have significant ramifications in other areas of the
    18
    law (e.g., tax, bankruptcy, etc.).    Furthermore, although the
    majority addresses the need for an affirmative acceptance to
    avoid the potential mischief a surreptitious conveyance could
    cause, it fails to address the reverse situation, where the
    grantee-spouse withholds affirmative acceptance to the
    detriment of the grantor-spouse.
    I also take issue with the majority’s reliance on Wanda’s
    acceptance of Douglas’ unilateral conveyance to demonstrate
    the parties “mutual consent.”    Mutual consent, without more,
    has never been recognized as a valid means for terminating a
    tenancy by the entirety.   Indeed, the phrase “mutual consent”
    has never once been mentioned in our entire jurisprudence on
    tenancies by the entirety.
    It has been established law in this Commonwealth since
    1825 that terminating a tenancy by the entirety requires “a
    joint conveyance of the property.”    Vasilion, 192 Va. at 
    740, 66 S.E.2d at 602
    (citing 2 Raleigh C. Minor, The Law of Real
    Property, § 854 (1908)).     See also Thornton v. Thornton, 24
    Va. (3 Rand.) 179, 183 (1825).    This is true regardless of
    whether the property is being conveyed to one spouse or to a
    third party.   While such an approach may appear to put form
    over substance, in reality, it avoids all of the pitfalls
    discussed above.   Both parties, along with any affected third
    parties, will immediately know the state of the property
    19
    ownership; there can be no gamesmanship in the form of
    surreptitious conveyances or withheld acceptances; and the
    “mutual consent” of both spouses is readily apparent in the
    joint conveyance.
    Rather than relying on a strained interpretation of the
    alleged 1976 conveyance from Douglas to Wanda, I would reverse
    the judgment of the trial court based on the terms of the
    November 30, 1995 settlement agreement (the “Settlement
    Agreement”).   At the time Douglas entered into the Settlement
    Agreement, Wanda had already passed away.   Therefore, Douglas
    was the sole owner of the property because the tenancy by the
    entirety had terminated with Wanda’s death.   At that point, he
    was free to alienate his interest in the property, which he
    did in the Settlement Agreement, with the exception of a life
    interest.   In exchange, he received $81,869.63 in
    consideration.   As Douglas only retained a life estate, he had
    no interest to pass on to his heirs.   Accordingly, I concur
    with the majority that a judgment confirming that the Fairway
    Drive property is the property of the trust should have been
    entered for William.
    20