Gagnon v. Pronovost

The quoted statute as construed in this state is not a legislative expression of hostility to the creation of joint tenancies for "the purpose of the statute is not to forbid or prevent the creation of estates in joint tenancy but to make certain that effect is given to the intention of the grantor." Roar v. Champlin, 79 N.H. 219, 221. If a joint tenancy is intended, it will be so construed even though it is contrary to common law rules of construction. Therrien v. Therrien, 94 N.H. 66. "It has been many years since the technicalities of real estate conveyancing have been much regarded here." Newmarket Mfg. Co. v. Nottingham, 86 N.H. 321, 324.

Upon analysis it appears that the statute provides three ways to create a joint tenancy. The first method is an express statement in the deed that the grantees shall take as joint tenants. The second method calls for express statement of the grantees "and the survivor of them." The third method is the use of any other words "clearly expressing an intention to create a joint tenancy." The deed in question is not within the first and third methods enumerated above. The question remains whether it is a substantial compliance with the second.

There is considerable authority for the proposition that the use of the word "survivor" or "survivors" in deeds and wills is sufficient to negative the statutory presumption of a tenancy in common. 2 Tiffany, Real Property (3d ed.) s. 424; Blaine v. Dow, 111 Me. 480; Weber v. Nedin, 210 Wis. 39; Armstrong v. Hellwig, 70 S.D. 406; Slater v. Gruger, 165 Ill. 329; Michael v. Lucas, 152 Md. 512. "There is no substantial difference between deeding or devising land to two persons and the survivor of them, and deeding or devising land to two persons to be held in joint tenancy." 4 Thompson, Real Property (Perm. ed.) s. 1790. In Massachusetts, which has a statute similar to ours, it appears that words of survivorship in the singular or the plural will create a joint tenancy in the absence of other limiting or qualifying phrases. Stimpson v. Batterman, 5 Cush. (Mass.) 153; Cross v. Cross, (Mass.), 85 N.E.2d 325, 328. The recent case of Mulvanity v. Nute, 95 N.H. 526, is consistent with the cited cases in holding that such words of survivorship are an incident of a joint tenancy.

It may be conceded that the deed in dispute is not a model form to create a joint tenancy and that the notary public who prepared it was not a model draftsman. That is not fatal, however, if it can be fairly said that the intent was expressed in reasonably clear terms. "If the intent to create a right of survivorship is expressed, it is to be given effect." Burns v. Nolette, 83 N.H. 489, 496. The defendants argue that there can be no "survivors" of two grantees and that this is not the singular use of the word provided by the statute. We are content with the construction placed upon the word by the Trial Court as a substantial compliance with the statute. "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal." Cardozo., J. Wood v. Duff-Gordon,222 N. Y. 88, 91. It is a well established rule in this state in considering written instruments and pleadings that their expressed intent will be enforced even though inarticulately worded. Geers v. Geers, 95 N.H. 316,317.

Objection is made that the words of survivorship do not appear in other parts of the deed and are therefore ineffective. The relative weight to be given words appearing in different sections of the deed as developed at common law has never been followed in this jurisdiction. The intent of the grantor is to be gathered from all parts of the deed without resorting to presumptions of law in determining their effect. It is finally suggested that the construction placed upon this deed discourages clearness of expression and the better forms of conveyancing. This argument has been considered many times in the last half a century but it has not been considered as important as the principle of carrying out the expressed intent of written documents regardless of the method of their expression. Lawyers and judges sometimes have difficulty when they attempt to make a fortress out of the dictionary and we should impose no higher standards upon the layman. See Marvin v. Peirce, 84 N.H. 455, 460.

JOHNSTON, C. J., concurs in this opinion.

ON REHEARING. After the foregoing opinion was filed, the plaintiff moved for rehearing on the ground that "the majority opinion of the Court . . . has failed to consider sufficiently the intention of the parties to the deed under consideration, by sustaining the defendants' exceptions to the decree of the Trial Court without qualification, and ruling that, as a matter of law, the deed in question created only a tenancy in common, without giving an opportunity to the plaintiff to present evidence as to the facts and circumstances existing at the time of and surrounding the drawing up of the deed. . . ."

Argument was invited on the issue of plaintiff's right to have considered evidence of the surrounding facts and circumstances.