                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                                       June 2, 2016 Session

             DARRYL F. BRYANT, SR. v. DARRYL F. BRYANT, JR.

                     Appeal by Permission from the Court of Appeals
                          Chancery Court for Davidson County
                     No. 141059I    Claudia Bonnyman, Chancellor
                        ___________________________________

                   No. M2014-02379-SC-R11-CV – Filed April 19, 2017
                        ___________________________________



SHARON G. LEE, J., dissenting.

        The Court has adopted a majority rule that allows a co-tenant to unilaterally sever
a joint tenancy with right of survivorship and convert the estate into a tenancy in common
without the knowledge or consent of the other co-tenant. The better rule, followed by
other jurisdictions, does not allow a co-tenant to act unilaterally to sever the other
co-tenant’s interest, thereby protecting the rights and expectations of joint tenants who
are conveyed property with a survivorship interest.

       Tennessee Code Annotated section 66-1-1071 does not provide for a right of
survivorship in a joint tenancy; however, the parties to a conveyance may create a joint
tenancy with right of survivorship through express language. Jones v. Jones, 206 S.W.2d
801, 803 (Tenn. 1947). ―[P]arties can still create estates of survivorship where the
instrument creating the estate, whether deed or will, evidences such an intention.‖ Bunch
v. Bunch, No. 02A01–9705–CH–00106, 1998 WL 46217, at *1 (Tenn. Ct. App. Jan. 8,
1998) (citing Jones, 206 S.W.2d at 803; McLeroy v. McLeroy, 40 S.W.2d 1027, 1028




      1
          Tennessee Code Annotated section 66-1-107 provides:

      In all estates, real and personal, held in joint tenancy, the part or share of any tenant dying
      shall not descend or go to the surviving tenant or tenants, but shall descend or be vested
      in the heirs, executors, or administrators, respectively, of the tenant so dying, in the same
      manner as estates held by tenancy in common.
(Tenn. 1931)). Other states also allow for the creation of a joint tenancy with right of
survivorship through express language.2

       In this case, Ms. Bryant and her son used express language to create a joint
tenancy with right of survivorship. The quitclaim deed from Ms. Bryant to herself and her
son expressly stated that it was ―for the purpose of creating a joint tenancy with right of
survivorship.‖ The deed was signed in 2009 when Ms. Bryant was eighty-five years old.
The express language used in the conveyance demonstrated Ms. Bryant and her son’s
clear intent that the son would be the sole owner of the property at Ms. Bryant’s death.
However, the next year, Ms. Bryant had a change of heart and unilaterally quitclaimed
her undivided interest to her grandson. It is unclear whether Ms. Bryant’s son knew about
the second deed or whether he had invested in improvements or repairs to the property
before his mother’s death. Under the Court’s decision, Ms. Bryant’s unilateral
conveyance of her interest in the property destroyed her son’s right of survivorship,
denied him the full value of any investments he may have made in the property, and
defeated his expectation that he would become the sole owner of the property upon his
mother’s death.

        The trial court ruled for Ms. Bryant’s son, relying on court decisions from
Michigan and Oregon. In the Michigan case of Albro v. Allen, real property was
conveyed to Carol Allen and Helen Albro ―as joint tenants with full rights of
survivorship.‖ 454 N.W.2d 85, 87 (Mich. 1990). When Ms. Allen agreed to sell her
interest in the property to a third party, Ms. Albro sued to enjoin the sale. In reversing the
trial court’s decision enjoining the sale, the Michigan Supreme Court noted that under
Michigan law, there are two forms of joint tenancies—a standard joint tenancy and a joint
tenancy with full rights of survivorship. Id. at 87–88. In a standard joint tenancy, the right
of survivorship may be destroyed by severance of the joint tenancy. Id. at 87. In contrast,
in a joint tenancy with full rights of survivorship, the survivorship interest cannot be
destroyed by an act of the other co-tenant. Id. at 88. The Michigan Supreme Court ruled

        2
           Michigan and Pennsylvania common law allow for the creation of a survivorship interest
through express language. See Albro v. Allen, 454 N.W.2d 85, 88 (Mich. 1990) (holding a joint tenancy
with right of survivorship is created by express language in the granting instrument); In re Estate of
Quick, 905 A.2d 471, 474 (Pa. 2006) (―A [joint tenancy with right of survivorship] must be created by
express words or by necessary implication, . . . but there are no particular words which must be used in its
creation.‖ (citing Pa. Bank & Trust Co. v. Thompson, 247 A.2d 771, 771 (Pa. 1968); Maxwell v. Saylor,
58 A.2d 355, 356 (Pa. 1948)).

        The legislatures in Alabama, Florida, Kentucky, Mississippi, Ohio, Oregon, Virginia, and West
Virginia have enacted statutes that allow for the creation of an estate with right of survivorship by express
language. See Ala. Code § 35-4-7; Fla. Stat. § 689.15; Ky. Rev. Stat. Ann. § 381.130(1); Miss. Code Ann.
§ 89-1-7; Ohio Rev. Code Ann. § 5302.20(A); Or. Rev. Stat. § 93.180(1)(a), (2); Va. Code Ann. § 55-21;
W. Va. Code § 36-1-20(a).
                                                    -2-
that the interest conveyed to Ms. Allen and Ms. Albro was a joint life estate with dual
contingent remainders. Id. at 93. While Ms. Allen could transfer her interest in the joint
life estate, this conveyance would not destroy the contingent remainder. Accordingly,
upon the death of a co-tenant, the other co-tenant or any person to whom the other
co-tenant transferred the contingent remainder owned the entire estate.

        The Albro court relied in part on Halleck v. Halleck, 337 P.2d 330 (Or. 1959),
where a father and son were deeded property ―not as tenants in common but with the
right of survivorship, their assigns and the heirs of such survivor, all the following real
property . . . .‖ Id. at 337. The habendum stated that ―the fee shall vest absolutely in the
survivor of the grantees.‖ Id. The Oregon Supreme Court construed this language to
create concurrent life estates with contingent remainders that would vest in the survivor.
Id. at 337–38. Joint tenancies in Oregon were abolished by statute, but ―[a] declaration of
a right to survivorship creates a tenancy in common in the life estate with
cross-contingent remainders in the fee simple.‖ Or. Rev. Stat. § 93.180(2), (3). The
Oregon Supreme Court held in Halleck that the deed created indestructible contingent
remainders in each co-tenant that could not be defeated by any act of a co-tenant.
Halleck, 337 P.2d at 338.

        The Oregon Supreme Court reached the same conclusion in Holbrook v.
Holbrook, 403 P.2d 12 (Or. 1965), where a husband and wife, pursuant to a divorce
settlement agreement, quitclaimed a jointly owned piece of property to a third party, who
then quitclaimed the property back to them ―as joint tenants with right of survivorship
and not as tenants in common.‖ Id. at 12–13. After the divorce, the husband conveyed to
his nephew an undivided one-half interest in the property. The husband died later that
year. Id. at 13. Recognizing that Oregon Revised Statutes section 93.180 abolished
common law joint tenancy and following its decision in Halleck, the Oregon Supreme
Court concluded that the language, ―as joint tenants with right of survivorship and not as
tenants in common,‖ created concurrent estates for life with contingent remainders in the
life tenants, with the remainder vesting in the survivor. Id. The Oregon Supreme Court
ruled for the wife, holding that the survivorship language in the conveyance created the
equivalent of a common law joint tenancy, except for the power of severance.

        In Ohio, before joint tenancies with right of survivorship were protected by
statute,3 the Ohio Court of Appeals addressed the survivorship rights of a joint tenant


       3
           Baldwin’s Ohio Revised Code Annotated section 5302.20(C)(2) provides:

       A conveyance from any survivorship tenant, or from any number of survivorship tenants
       that is from less than all of them, to a person who is not a survivorship tenant vests the
       title of the grantor or grantors in the grantee, conditioned on the survivorship of the
                                                   -3-
who does not join in the conveyance of property to a third party. In Dold v. Powers, No.
C-920954, 1994 WL 6002, at *1 (Ohio Ct. App. Jan. 12, 1994), a mother conveyed real
property to herself and her son ―for and during their joint lives, remainder in fee simple to
the survivor of them, her and his heirs and assigns forever.‖ Id. The mother later
quitclaimed her interest to her granddaughter. The Ohio Court of Appeals held that ―the
right of survivorship arises from the contractual language of the granting instrument and
not as some common law principle of survivorship incident to a joint tenancy, and that a
contractually created right of survivorship cannot be unilaterally extinguished by an inter
vivos transfer to a third party.‖ Id. (following Murphy v. Murphy, 602 N.E.2d 1216 (Ohio
Ct. App. 1991)).

       In Spitz v. Rapport, 604 N.E.2d 801 (Ohio Ct. App. 1992), a mother and son were
granted a fee interest in a condominium ―by joint and survivorship deed.‖ Id. at 802.
Later, the mother attempted to terminate the survivorship rights of the joint tenancy by
quitclaiming her interest to a third party who immediately quitclaimed the interest back to
the mother. Upon the mother’s death, the administrator of her estate sought a declaration
that the mother’s undivided one-half interest did not pass to the son by survivorship but
instead passed to her estate. Id. at 802–03. The son argued he was the sole owner of the
property based on his survivorship interest. Id. at 803. The Ohio Court of Appeals
determined that, before the revision of Ohio Revised Code section 5302.17, joint tenancy
with right of survivorship did not exist at common law. Rather, the right to survivorship
could be created by contract. Because the survivorship rights were created by a contract
that did not provide for the unilateral termination of survivorship rights, the mother’s
conveyance to a third party did not extinguish the son’s survivorship rights. The court
further applied section 5302.20(C) to hold that ―a conveyance by less than all of the
survivorship tenants does not alter the interest of a survivorship tenant who did not join in
the conveyance.‖ Id. at 804. The court affirmed the trial court’s grant of summary
judgment for the son.

       The approach taken by these jurisdictions achieves predictability and consistency
for property law practitioners and the public. When parties use express language to create
a joint tenancy with survivorship, a co-tenant should not be allowed to unilaterally
destroy the survivorship interest. This approach honors the clear intent of the parties,
recognizes the value of the survivorship to each co-tenant, and protects a co-tenant’s
expectation that he or she will solely own the property upon the death of the other
co-tenant.


       grantor or grantors of the conveyance, and does not alter the interest in the title of any of
       the other survivorship tenants who do not join in the conveyance.


                                                   -4-
       A co-tenant suffering from ―buyer’s remorse‖ should not be able to convey his or
her right of survivorship to a third party and unilaterally defeat the other co-tenant’s
expectancy of full ownership. A co-tenant who is conveyed an interest in property with a
right of survivorship should be able to rely on the deed and know that the right of
survivorship will not be extinguished without his or her consent. The co-tenant should be
able to make financial decisions, such as investing in the upkeep of the property, in
reliance on the conveying instrument.

        The Court’s decision today impairs a co-tenant’s ability to protect his or her
investment. For example, an elderly parent’s home may need costly repairs. A daughter
may be willing to make a significant investment in the property, but only if she can
protect her investment by becoming the sole owner of the property upon the parent’s
death. The parent executes a deed conveying the home to the parent and the daughter as
joint tenants with the right of survivorship. The parent continues to have an ownership
interest in the home, and the daughter can maintain, improve, and make needed repairs
with assurance of full ownership at the parent’s death. This arrangement benefits both
parties. Under the Court’s decision, the parent can extinguish the daughter’s right of
survivorship without her knowledge or consent, causing the daughter to lose the benefit
of her bargain despite the terms of the deed.4

       The Court’s decision diminishes the effectiveness of deeds creating joint tenancies
with right of survivorship. I encourage the General Assembly to study this issue and
enact legislation, as other states have done, to protect a co-tenant’s investment in property
held in a joint tenancy with right of survivorship.

       For these reasons, I dissent from the Court’s decision.



                                               ______________________________
                                               SHARON G. LEE, JUSTICE




       4
           The Court suggests an alternative hypothetical in which the grandson makes improvements to
the home. Under these assumed facts, the grandson would lose the value of his investment if the son took
title to the property by virtue of his survivorship rights. However, the mother and the grandson would
understand that, given the existence of the deed granting the son full title to the property upon the
mother’s death, any improvements made by the grandson would be gratuitous.
                                                   -5-
