Matter of Jones
Annotate this CaseDecided on August 12, 2005
Surrogate's Court, Richmond County
In the Matter of the Estate of Vivian Jones, Deceased.
A-119/02
John A. Fusco, J.
In this proceeding to determine the validity of a claim against this estate, the matter has been submitted to the Court for decision.
The petition of Gary D. Gotlin, Public Administrator of Richmond County, the administrator of the estate of Vivian Jones, seeks a determination of the validity of a claim presented by Thelma Jones. Thelma Jones interposed a written claim against this estate, dated June 30, 2003. This claim consists of three parts: first, the costs incurred by Thelma Jones for maintaining the real property from the date of death of the decedent, September 8, 1998, until the sale of that property to a third-party on January 28, 2003; second, the demand for payment upon a promissory note in the amount of $10,000.00 allegedly given by Vivian Jones to the claimant; and lastly, $3,050.00, for the repayment to the claimant of the cost of a burial plot for Vivian Jones.
The decedent, Vivian Jones, and her husband, Waverly Jones, purchased 21 Egmont Place, Staten Island, New York on September 3, 1980, and received a deed for that property as husband and wife. Despite their joint ownership of the property, Waverly Jones, alone, conveyed a deed for the subject property to Thelma Jones, his mother, on December 6, 1985. Vivian Jones died September 8, 1998, married to Waverly Jones, and Waverly Jones died December 30, 1998.
It has long been held that when a husband and wife take title to real property, they do not take as tenants in common, or as joint tenants, but both are seised of the entirety of the property, per tout, et non per my, and upon the death of either the husband or wife, the whole of the ownership of the real property survives to the other. The survivor of the husband and wife takes the whole of the real estate, not by survivorship only, but by virtue of the grant of the real property which vested the entire estate in each of the grantees. Bertles v. Nunan, 92 NY 152 (1883). During the time both husband and wife are alive, neither can make any disposition of the land that would prejudice the rights of the survivor. Bertles, (supra).
When, as here, there is a deed by one of the married grantees during the lifetime of both into a third-party, said deed can not effect the title enjoyed by the spouse not joining in the conveyance to the third-party.
"One tenant by the entirety cannot sever the tenancy or convert it into a tenancy in common by unilateral action... When one tenant by the entirety conveys his interest [*2]in the property, the characteristics of the tenancy, including the right of the survivor to take the whole fee, remain unimpaired... title is still deemed to be held by the entirety. The grantee may ultimately obtain the whole fee, if his grantor survives, but his interest in the property may be completely extinguished, if the other spouse survives." Lawriw v. City of Rochester, 14 AD2d 13, 217 N.Y.S.2d 113 (4th Dep't. 1961), aff'd. 11 NY2d 759, 226 N.Y.S.2d 695 (1962).
In the present case, the husband having survived the wife, his grantee became entitled to the whole fee upon the death of the decedent, Vivian Jones on September 8, 1998.
The claimant may have been mistaken as to the ownership of 21 Egmont Place when she interposed her claim against the Estate of Vivian Jones, however, it is undeniable that Thelma Jones can not claim the estate of Vivian Jones must repay her for the costs of maintaining the real property that she, Thelma Jones, had owned since September 8, 1998, the date of death of Vivian Jones. That portion of the claim of Thelma Jones for the cost of maintaining 21 Egmont Avenue, Staten Island, New York, is accordingly denied since said property was owned by the claimant.
As to the remaining portions of the claim, the Public Administrator is directed to review any evidence in the possession of Thelma Jones, and report to the Court forthwith whether he is satisfied with the proof offered by Ms. Jones, or whether a short factual hearing ill be required.
This decision shall constitute the Order of the Court. Proceed accordingly.
Dated: August 12, 2005
_____________________________JOHN A. FUSCO, Surrogate
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