ELLIOTT (CHARLES R.), ET AL. VS. O'DANIEL (CYNTHIA ELLIOTT), ET AL.
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RENDERED: JANUARY 8, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002107-MR
CHARLES R. ELLIOTT AND
JUANITA ELLIOTT
v.
APPELLANTS
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE ROBERT J. HINES, JUDGE
ACTION NO. 07-CI-00521
CYNTHIA ELLIOTT O'DANIEL;
JOE KENT ELLIOTT; SHERRY
ELLIOTT ROSS; AND JEFFREY
PAGE ELLIOTT
APPELLEES
OPINION
REVERSING AND
REMANDING
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BEFORE: LAMBERT AND VANMETER, JUDGES; HENRY,1 SENIOR
JUDGE.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
HENRY, SENIOR JUDGE: Charles R. Elliott and his wife, Juanita Elliott, appeal
from orders of the McCracken Circuit Court which granted partial summary
judgment to their nieces and nephews in connection with a farm Charles had
owned as a joint tenant with his late sister-in-law, Betty. The central issue is
whether a deed executed by Betty shortly before her death, in which she conveyed
her interest in the property to her children, was sufficient to destroy her joint
tenancy with Charles under the terms of KRS 381.130(2)(a)(2.). Because the
language of the deed was insufficient to sever the joint tenancy, and a deed of
correction filed after her death was ineffective, we reverse the order of the circuit
court.
Since the 1950s, Charles R. Elliott and his brother, Lee Earl Elliott,
had farmed several tracts of property together in McCracken and Ballard counties.
Some of the property was owned individually, other property was owned jointly.
Lee Earl and his wife Betty had four children, Sherry, Kent, Cindy and Jeff, who
are the appellees in this action. In 1966, Lee Earl died following a farm accident.
Charles continued to farm for himself and his brother’s widow, Betty. They
divided the profits earned on jointly owned property.
On September 3, 1971, Charles and Betty purchased the Champion
farm (a/k/a the Luttrell farm) in McCracken County. The parties’ rights of
survivorship were described in the deed as follows:
IT IS AGREED AND UNDERSTOOD, and is a part of
the consideration hereof, that by this instrument the
above-described property is conveyed to the parties of
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the second part [Charles and Betty] with right of
survivorship, that, upon the death of either of the parties
of the second part while they are still the owners of the
above-described property, or any part thereof, or any
interest therein, all right, title and interest of the one so
dying shall immediately vest in the survivor.
It is undisputed by the parties that this deed created a joint tenancy
with right of survivorship.
Thirty years later, in June 2001, Betty asked Charles to alter the
survivorship arrangement. Charles refused. Betty then asked two of her children,
Cynthia and Sherry, to enlist the aid of an attorney to change the Champion farm
ownership from a joint tenancy with right of survivorship into a tenancy in
common, and to assist her in conveying her interest in the property to her children.
The attorney drafted a deed which Betty signed on July 8, 2005, at which time she
was hospitalized, suffering from a serious illness. The deed was recorded on the
same day. It stated in pertinent part as follows:
THAT FOR AND IN TOTAL CONSIDERATION of
$1.00 cash in hand paid, the receipt and sufficiency of
which are hereby acknowledged, and the love and
affection of the Grantor for her children, the Grantees,
the Grantor has bargained and sold and does hereby
grant, sell and convey unto the Grantees all of her onehalf undivided interest in and to the property described
below as follows: unto Cynthia Elliott O’Daniel, her
heirs and assigns forever, an undivided 1/8 interest in and
to the hereinafter described property, unto Joe Kent
Elliott, his heirs and assigns forever, an undivided 1/8
interest in and to the hereinafter described property, unto
Sherry Elliott Ross, her heirs and assigns forever, an
undivided 1/8 interest in and to the hereinafter described
property, unto Jeffrey Page Elliott, his heirs and assigns
forever, an undivided 1/8 interest in and to the hereinafter
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described property, located in McCracken County,
Kentucky, and more particularly described as follows, to
wit:
. . . . [Property description omitted]
TO HAVE AND TO HOLD the above-described real
property together with all appurtenances and privileges
thereunto belonging unto the Grantees as follows: unto
Cynthia Elliott O’Daniel, her heirs and assigns forever,
an undivided 1/8 interest in and to the above-described
property, unto Joe Kent Elliott, his heirs and assigns
forever, an undivided 1/8 interest in and to the abovedescribed property, unto Sherry Elliott Ross, her heirs
and assigns forever, an undivided 1/8 interest in and to
the above-described property, unto Jeffrey Page Elliott,
his heirs and assigns forever, an undivided 1/8 interest in
and to the above-described property.
Betty died one month later. After her death, her children asserted a
one-half undivided interest in the Champion Farm. Charles filed a declaratory
action in the McCracken Circuit Court, seeking a declaration that the deed from
Betty to her children was ineffective to sever his survivorship rights in the farm,
and that he consequently held the entire property in fee simple. Specifically,
Charles argued that the July 8, 2005, deed from Betty to her children did not
contain the language required under KRS 381.130(2)(a)(2.) to partition a joint
tenancy. On November 28, 2007, he moved for partial summary judgment.
Before the trial court had ruled on his motion, Betty’s children
recorded a “Deed of Correction” on March 21, 2008. Betty’s daughter, Sherry, the
executrix of her estate, signed the deed, which stated in pertinent part as follows:
WHEREAS, by Deed dated July 8, 2005 and recorded in
Deed Book 1069, page 377, in the office of the
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McCracken County clerk, Grantor herein attempted to
convey unto Cynthia Elliott O’Daniel, Joe Kent Elliott,
Sherry Elliott Ross and Jeffrey Page Elliott a certain tract
of land in McCracken County, Kentucky; and
WHEREAS, the parties to that transaction intended to
partition the survivorship aspect of Betty R. Elliott and
Charles R. Elliott’s joint tenancy in the property;
WHEREAS said conveyance arguably failed to include a
phrase in the consideration clause indicating the intent to
partition the joint tenants’ interest in the property;
WHEREAS, said tract of land intended to be conveyed
by said deed is the property hereinafter described; and
WHEREAS, said parties hereto desire to correct said
conveyance . . . .
The appellees also filed a cross-motion for summary judgment, which
the trial court granted in an order entered on April 17, 2008. Charles and his
nieces and nephews were adjudged tenants in common to the Champion farm, with
Charles holding a one-half interest and each of the appellees a one-eighth interest.
This appeal followed.
The seminal case on the issue of joint tenancies in Kentucky is
Sanderson v. Saxon, 834 S.W.2d 676 (Ky. 1992). It defines joint tenancy as
follows:
A joint tenancy, as distinguished from the tenancy by the
entirety, is an estate held by two or more people who (in
the case where the estate is held by only two) are not
husband and wife. Each is jointly entitled to the
enjoyment of the estate so long as all live; however, the
interest of a joint tenant, at his or her death, passes to the
survivor.
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Id. at 678 (citations omitted, emphasis in original).
The Sanderson Court observed that, at common law, “it seems
uncontroverted that one joint tenant could destroy the right of survivorship of the
other joint tenant, by way of a conveyance to a third party.” Id. at 679. The Court
explained that this principle was embodied by the General Assembly in KRS
381.120, which provides that
Joint tenants may be compelled to make partition, and
when a joint tenant dies, the joint tenant’s part of the
joint estate, real or personal, shall descend to the joint
tenant’s heirs, or pass by devise, or go to the joint
tenant’s personal representative, subject to debts, curtesy,
dower, or distribution.
The Court further noted, however, that the General Assembly had
“carved out an exception to KRS 381.120” in the form of KRS 381.130, which at
the time the Sanderson opinion was written provided as follows:
KRS 381.120 shall not apply to any estate which joint
tenants hold as executors or trustees, nor to an estate
conveyed or devised to persons in their own right, when
it manifestly appears, from the tenor of the instrument,
that it was intended that the part of the one dying should
belong to the others, neither shall it affect the mode of
proceeding on any joint contract or judgment.
The Court concluded that the General Assembly had redefined the nature of a joint
tenancy. “The clear intent of KRS 381.120 is to preserve the survivorship aspect
of joint tenancies, where ‘it manifestly appears, from the tenor of the instrument,
that it was intended that the part of the one dying should belong to the others. . . .’”
Sanderson, 834 S.W.2d at 679.
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In 1998, the General Assembly amended KRS 381.130 by adding an
additional provision; it now states as follows:
(1) KRS 381.120 shall not apply to any estate which joint
tenants hold as executors or trustees, nor, except as
provided in subsection (2) of this section, to an estate
conveyed or devised to persons in their own right, when
it manifestly appears, from the tenor of the instrument,
that it was intended that the part of the one dying should
belong to the others, neither shall it affect the mode of
proceeding on any joint contract or judgment.
(2)
(a)
1. Except as provided in paragraph (b) of
this subsection, one (1) or more joint
tenants
of real property may partition their
interest
in the real property during their
lifetime by
deed or other instrument.
2. The deed or other instrument shall express
the intent of the joint tenant to partition the
joint tenant’s interest in the real property
and shall be recorded at the office of the
county clerk in the county where the real
property or any portion of the real property
is located.
3. The partitioning shall be effective at the
time the deed or other instrument is
recorded.
(b) Residential real property that is owned
exclusively by husband and wife as joint tenants
with a right of survivorship and actually occupied
by them as a principal residence shall not be
partitioned as provided in paragraph (a) of this
subsection.
(c) The deed or other instrument shall convert the
partitioning joint tenant’s interest in the real
property into a tenancy in common with the
remaining joint tenants. If there are two (2) or
more nonpartitioning joint tenants, the interests of
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the nonpartitioning joint tenants in relation to each
other shall be governed pursuant to the terms of
the instrument creating the interest.
We interpret the revision of the statute to mean that joint tenants with survivorship
may partition their interest in real property during their lifetimes by recording a
deed to that effect, and that the partition is effective if the deed or other instrument
expresses the intent of the joint tenant to partition the interest in the real property.
Charles argues that the deed executed by Betty before her death was
inadequate to express her intent to partition the survivorship interest. The
appellees contend that Betty clearly intended and attempted to sever the joint
tenancy by means of the 2005 deed; and that any deficiency in that deed was
remedied by the deed of correction. Because Betty had discussed her desire to
sever the tenancy with Charles in 2001, they argue that he was not an innocent
third party to the transaction and is therefore estopped from challenging the
validity of the deed of correction.
We turn first to the appellees’ contention that the deed of correction
signed by the executrix of Betty’s estate was effective to convey the intent to
partition, and that it in effect had “retroactive application.” Sanderson plainly
states that “the interest of a joint tenant, at his or her death, passes to the survivor.”
834 S.W.2d at 678 (emphasis supplied). If the deed signed by Betty and recorded
on July 8, 2005, was ineffective to partition the joint tenancy, then her interest
passed immediately to Charles upon her death. The deed signed by her executrix
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and entered after her death would have no effect because Betty’s share would
already have passed to Charles.
The appellees contend that because Charles was fully aware that Betty
wanted to terminate the joint survivorship arrangement, he was not an innocent
third party and is therefore estopped from challenging the validity of the deed of
correction. But KRS 381.130 clearly requires that the joint tenant who wishes to
partition the interest shall record a deed or other instrument expressing that intent,
and that this partition must occur during his or her lifetime. These statutory
conditions were simply not met in this case.
The July 8, 2005, deed, states that “the Grantor has bargained and sold
and does hereby grant, sell and convey unto the Grantees all of her one-half
undivided interest in and to the property described below as follows: . . . .” This
conveyance of Betty’s interest to a third party would have been sufficient under the
old common law rule to destroy Charles’s right of survivorship. Under KRS
381.130(2), however, a more explicit statement of the intent to partition the joint
tenancy is required. Such a statement is lacking in the deed.
The interpretation of a deed is a matter of law and the court is bound
by the four corners of the document. Florman v. MEBCO Ltd. Partnership, 207
S.W.3d 593, 600 (Ky. App. 2006). The law is clear that “[e]xtrinsic evidence
cannot be admitted to vary the terms of a written instrument in the absence of an
ambiguous deed.” Hoheimer v. Hoheimer, 30 S.W.3d 176, 178 (Ky. 2000).
However, “[w]here the language employed in a deed is uncertain in its meaning, it
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is proper to consider the nature of the instrument, the situation of the parties
executing it, and the objects which they had in view.” Sword v. Sword, 252
S.W.2d 869, 870 (Ky. 1952). If a deed is ambiguous, the terms are construed
“strongly against the preparers, whether that be the grantor or the grantees.”
Florman, 207 S.W.3d at 600.
The July 8, 2005, deed conveys Betty’s interest in the property to her
children, with no express intent to sever the survivorship arrangement with
Charles. As a matter of law, the deed is not ambiguous and consequently we may
not consider extrinsic evidence (such as Betty’s request to Charles to sever the
joint tenancy arrangement) in order to interpret it. We reiterate that, under the old
common law rule, such a deed of conveyance to a third party would have been
sufficient to sever the joint tenancy with survivorship. Under the operation of KRS
381.130(2), however, Betty conveyed at most a life estate to the appellees which
ended upon her death.
The partial summary judgment of the McCracken Circuit Court
naming the appellees as tenants in common of the Champion farm is therefore
reversed, and the case is remanded for entry of a judgment naming Charles as the
owner in fee simple of the Champion farm.
LAMBERT, JUDGE, CONCURS IN RESULT ONLY.
VANMETER, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
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VANMETER, JUDGE, DISSENTING: In my view, the 2005 deed
from Betty to her children sufficiently evinces Betty’s intent to partition her
interest in the real property in compliance with KRS 381.130(2). I would affirm
the trial court.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Kerry D. Smith
Paducah, Kentucky
Joe H. Kimmel III
James R. Coltharp, Jr.
Paducah, Kentucky
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