Powell v. Estate of Powell (IN)

Summary: Property conveyed to two brothers "as tenants by the entireties" created a joint tenancy with right of survivorship, and not a tenancy in common.


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Powell v. Estate of Powell, 14 N.E.3d 46 (Ind. App. 2014).


Facts: By warranty deed, Lawrence Powell conveyed his property to his two sons, Kevin and Gary Powell, "as tenants by the entireties." Gary died, was survived by Kevin, and his estate filed a complaint for declaratory judgment seeking a ruling that title to Kevin and Gary’s real estate was held as tenants in common rather than a joint tenancy. Kevin filed a counterclaim seeking a declaratory judgment that the deed created in the brothers a joint tenancy with right of survivorship, thereby making Kevin the sole owner of the real estate.

The trial court conducted a hearing, and found that (1) the deed expressed no intent other than to transfer real estate to Gary Powell and Kevin Powell, and (2) the deed transferred the property to the brothers “as tenants by the entireties.” The latter was held to be devoid of bearing, however, as tenancy by the entirety was deemed in error, since only husband and wives could hold under such a title. Therefore, the property was held as a tenancy in common, and Gary’s estate inherited his half of the real estate. Kevin appealed.

Holding: Reversed and Remanded. On appeal, the court addressed the issue of what effect the language “as tenants by the entirety” had in the conveyance of the real estate to the two brothers. The court stated that under Ind.Code Ann. § 32–17–2–1(c), a conveyance or devise of land or any interest in land made to two or more persons creates an estate in common and not in joint tenancy unless: (1) it is expressed in the conveyance or devise that the grantees or devisees hold the land or interest in land in joint tenancy and to the survivor of them; or (2) the intent to create an estate in joint tenancy manifestly appears from the tenor of the instrument. The court first held that subsection (c)(1) did not apply here because Lawrence did not express in the deed that his sons should “hold the land or interest in land in joint tenancy and to the survivor of them,” or substantially similar language.

However, under subsection (c)(2), the court held that Lawrence intentionally chose to give it to them “as tenants by the entireties.” The validity of this presumption was buttressed by the fact that Lawrence retained legal counsel to help him draft the deed. The most notable aspect of tenancy by the entirety is the right of survivorship. Additionally, tenancy by the entirety was deemed merely a special form of joint tenancy, and common to both was the right of survivorship. Therefore, the court concluded the use of “as tenants by the entireties” meant Lawrence intended to convey the right of survivorship. As such, when property is conveyed to individuals as tenants by the entirety or entireties, regardless of whether those individuals are husband and wife, a presumption arises that the grantor intended to convey the property with the right of survivorship. This, in turn, is sufficient to establish the intent to create an estate in joint tenancy with right of survivorship under I.C. § 32–17–2–1(c)(2). Thus, Kevin was entitled to the entirety of the real estate.


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By: ATG Underwriting Department | Posted on: Mon, 06/15/2015 - 2:06pm