Marchel v. Estate of Marchel (WI)


Summary: The common law requirement that a grantor cannot also be a grantee in a deed creating joint tenancy is no longer the law in Wisconsin.


Marchel v. Estate of Marchel, 2012 AP 2131 (Wis. Ct. App. 2013).


Facts: Two brothers, Thomas Marchel (Thomas) and Robert A. Marchel (Robert), held property as tenants in common. In 1970, Thomas and Robert changed their ownership to joint tenancy by a deed to themselves. After that, Thomas married Mary L. Marchel (Mary). In 2008, Thomas transferred his undivided one-half interest in the property to himself and Mary to create survivorship martial property with Mary. On July 20, 2011, Thomas died. On July 21, 2011, Mary recorded her survivorship interest. On September 2, 2011, Mary filed a suit against Robert to seek a partition of the property. While the case was pending, Robert died on October 2, 2011. The estate of Robert (the Estate) was substituted as a defendant. The Estate counterclaimed that Robert is entitled to ownership of the entire property by virtue of joint tenancy he formed with Thomas in 1970. The trial court agreed with the Estate.


As a preliminary matter, the trial court found that the 1970 conveyance from Thomas and Robert to themselves validly established their joint tenancy under the statute that was in effect at that time. Despite the common law rule that invalidates the creation of joint tenancy by a deed in which a grantor is also a grantee, the statute had abrogated the common law rule by expressly stating that “Any deed to 2 or more grantees, including any deed in which the grantor is also one of the grantees, . . . shall be held and construed to create . . . joint tenancy.” 1947 Wis. Laws, ch. 140. Yet the trial court found that the creation of joint tenancy between Mary and Thomas by the 2008 conveyance is invalid because the statute was then changed. Under the changed statute, the precise language that permitted the creation of joint tenancy by a deed in which a person is both the grantor and the grantee was omitted. The trial court viewed this omission as effectively reinstating the previous common law rule requiring the unity of time and title in creating a valid joint tenancy. Thus, the trial court concluded that Thomas’s 2008 conveyance purporting to establish joint tenancy with Mary could not sever his previous joint tenancy with Robert. With the 1970 conveyance creating the only valid joint tenancy in this case, Robert became the single owner of the entire property upon Thomas’s death. Mary appealed.


Holding: Reversed. The sole issue on appeal was whether Thomas’s 2008 conveyance of his undivided one-half interest in the property to himself and Mary validly created survivorship interests between them. In answering affirmatively to this question, the appellate court relied on two grounds.


One was the review of the trial court’s interpretation of the statute de novo, specifically with respect to the effect of the omission of the old statutory language on the requirements to create joint tenancy under the new statute. The appellate court interpreted the statutory language, or the omission of it, in the context within which it was used, “not in isolation but as part of a whole; in relation to the language of surrounding or closely related statutes; and reasonably to avoid absurd or unreasonable results.” State v. Warbelton, 308 Wis. 2d 459, 465, 747 N.W.2d 717, 720 (Wis. Ct. App. 2008). While the new statute omitted the language, “any deed in which the grantor is also one of the grantees,” which could create joint tenancy under the old statute, it also added the following language: “The common law requirements of unity of title and time for creation of a joint tenancy are abolished.” 1969 Wis. Laws, ch. 324; renumbered in Wis. Stat. § 700.17(5) (2011–12). The appellate court viewed this new language as replacing the omitted language, thereby authorizing Thomas’s 2008 conveyance to validly create joint tenancy with Mary. Thus, contrary to the view of the trial court, the common law rule was not reinstated by the statutory amendment; rather, the requirement that a single person cannot be both a grantor and a grantee in a deed creating joint tenancy is no longer the law in Wisconsin. So, if Thomas intended to create joint tenancy by the 2008 conveyance, then it would be valid under the new statute.


But it was not joint tenancy that Thomas attempted to create by the 2008 conveyance. It was survivorship martial property, a whole new creature of the modern Wisconsin statute. The appellate court found that the two are different, and the latter didn’t even exist at common law. Moe v. Krupke, 255 Wis. 33, 34–40, 37 N.W.2d 865 (Wis. 1949). The unity of time and the unity of title are not requirements in creating survivorship marital property under the Wisconsin statute. 1983 Wis. Act 186, § 47; renumbered in Wis. Stat. Ann. § 766.60(5) (West 2013). Pursuant to the statute, therefore, Thomas’s 2008 deed validly created survivorship marital property. Also, Thomas’s intent expressed in the deed effectively severed joint tenancy with Robert upon Thomas’s creating survivorship martial property with Mary. Nichols v. Nichols, 43 Wis. 2d 346, 349–50, 168 N.W.2d 876 (Wis. 1969). Therefore, upon Thomas’s death, Mary is entitled to survivorship rights in Thomas’s undivided one-half interest in the property.

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By: ATG Underwriting Department | Posted on: Fri, 08/09/2013 - 11:44am