Kipp v. Chips Estate

Annotate this Case
Kipp v. Chips Estate; 169 Vt. 102; 732 A.2d 127

[Filed 26-Feb-1999]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as  formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the  Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 97-279

June Kipp	                         Supreme Court

	                                 On Appeal from
     v.		                         Windham Superior Court

Ervin W. Chips Estate	                 January Term, 1999

Richard W. Norton, J.

Lance C. Shader, Brattleboro, for Plaintiff-Appellant.

Richard M. Gale of Gale & Corum, Brattleboro, for Defendant-Appellee.

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

       DOOLEY, J.   This dispute over the language in a deed requires us to
  decide whether  the co-owners of a parcel of land in Newfane held the
  property as joint tenants with a right of  survivorship so that the death
  of a co-owner extinguished the interest of his heirs in the realty. 
  Concluding that the deed created a tenancy in common, the superior court
  awarded an undivided  one-half interest to defendant, the estate of
  co-owner Ervin W. Chips.  Plaintiff and co-owner  June Kipp appeals,
  contending that the deed provides for a joint tenancy or, alternatively,
  that  the deed is ambiguous such that the court should have admitted parol
  evidence to resolve the  ambiguity.  We affirm.

       The following facts, as found by the Windham Superior Court, are not
  in dispute.  On 


  August 7, 1987, plaintiff acquired her interest in the property through a
  warranty deed conveying  the land from Byllee Lloyd Gould to Ervin W. Chips
  and June Kipp.  The granting clause of the  deed provided that Gould was
  conveying the property to "Ervin W. Chips and June Kipp, joint  tenants,
  and their heirs and assigns forever."  The habendum clause,(FN1) however,
  described  the grantees as "tenants in common, and their heirs and

       Chips died on October 5, 1994.  On January 21, 1997, plaintiff filed a
  complaint in the  Windham Superior Court seeking a declaratory judgment
  that the deed created a joint tenancy  and, therefore, that Chips' son and
  heir had no interest in the property upon his father's death.   Relying
  solely on the language of the deed, and the argument and submissions of
  counsel, the  Windham Superior Court entered judgment in favor of the
  estate.  The court determined that the  language of the deed fully
  expressed the intention of the grantor and, therefore, that the court did 
  not have to look beyond the four corners of the instrument.  The court then
  ruled that the  habendum clause of the deed clarified the granting clause
  and created a tenancy in common.

       Plaintiff's main argument is that the dispute should have been
  resolved based on the rule  of deed construction that the wording of the
  granting clause controls over the wording of the  habendum clause when
  there is a conflict between them.  In plaintiff's view, the granting clause 
  of the deed clearly conveys a joint tenancy, while the habendum clearly
  conveys a tenancy in  common.  Since the clauses are in conflict, plaintiff
  argues that the granting clause must control 


  and the deed therefore conveys a joint tenancy.  For four reasons, we do
  not find this argument  persuasive in resolving this case.

       First, in interpreting a deed, we look to the language of the written
  instrument because it  is assumed to declare the intent of the parties. 
  See Okemo Mountain, Inc. v. Town of Ludlow,  164 Vt. 447, 451, 671 A.2d 1263, 1267 (1995).  Our "master rule for the construction of deeds  is that
  the intention of the parties, when ascertainable from the entire
  instrument, prevails over  technical terms or their formal arrangement." 
  Kennedy, Adm'r v. Rutter, Adm'r, 110 Vt. 332,  338, 6 A.2d 17, 20 (1939)
  (quoting Vermont Kaolin Corp. v. Lyons, 101 Vt. 367, 376, 143 A. 639, 642
  (1928)).  We read the entire written instrument as a whole, giving "effect
  to every  part" so as to understand the words in the context of the full
  deed.  Aiken v. Clark, 117 Vt. 391,  393, 92 A.2d 620, 621 (1952).  In so
  doing, we construe the various clauses of the document,  wherever possible,
  so that the deed has a consistent, or harmonious, meaning.  See deNeergaard 
  v. Dillingham, 123 Vt. 327, 332, 187 A.2d 494, 498 (1963).
       As this Court observed in 1912:

     It seems to have been recognized from the first that the division of 
     a deed into such parts as the premises, the habendum and the 
     tenendum, was pretty much a matter of capitalization and 
     punctuation, and our Court was never greatly impressed with the 
     idea that it is of vital importance in what part of a deed the 
     intention is expressed so long as it finds somewhere clear and 
     adequate expression.

  Johnson v. Barden, 86 Vt. 19, 25-26, 83 A. 721, 724 (1912).

       The rule on which plaintiff relies is actually an aid to construction
  and not a positive rule  of law.  See id. at 25, 83 A.  at 724; see also
  Fairbrother v. Adams, 135 Vt. 428, 429, 378 A.2d 102, 104 (1977).  We also
  note that as an aid to construction it "has been increasingly  discredited, 


  and most modern cases either reject it entirely or give only a rather mild
  priority to the granting  clause."  R. Cunningham, W. Stoebuck & D.
  Whitman, The Law of Property § 11.1, at 719  (1984) (footnotes omitted). 
  Although we agree that in some cases according priority to the  granting
  clause over other deed language is appropriate, we stress that such
  priority is only an  aid to determining the intent of the grantor, to be
  used along with other such aids.

       Second, the rule plaintiff espouses must be assessed in light of the
  role of a habendum  clause to modify, to limit or to explain the grant of
  the property interest set out in the granting  clause.  See Kennedy, 110
  Vt. at 339, 6 A.2d  at 21.  Thus, even in the face of a clear conflict 
  between the language of the clauses, the language of the habendum may
  control as a  modification, limitation or explanation of the language of
  the granting clause.

       Third, the rule plaintiff espouses applies only if the granting clause
  is "expressed in clear  and unambiguous language."  Id. (quoting Bennett v.
  Bennett, 93 Vt. 316, 318, 107 A. 304, 305  (1919)).  As discussed below, we
  do not find the language of the granting clause to be clear and 
  unambiguous in this case.

       Fourth, the Legislature has made clear that an "[e]state in common" is
  "preferred to joint  tenancy."  27 V.S.A. § 2.  Although the statute does
  allow a deed to create a joint tenancy by  explicit language, the
  legislative policy requires that we resolve ambiguity in favor of a tenancy 
  in common rather than a joint tenancy.  See, e.g., Palmer v. Flint, 161 A.2d 837, 842 (Me.  1960) (under similar Maine statute, intent to create
  joint tenancy "must be clear and  convincing"); Cross v. Cross, 85 N.E.2d 325, 327 (Mass. 1949) (under similar Massachusetts  statute, joint tenancy
  created only when it "plainly appears" from words used); Gagnon v. 
  Pronovost, 71 A.2d 747, 751 (N.H. 1950) (affirming on rehearing that, under
  similar New  Hampshire statute, grantor must 


  clearly express intention to create joint tenancy).

       The central issue in this case is whether the interests conveyed by
  the deed to June Kipp  and Ervin Chips included a right of survivorship.  A
  right of survivorship is normally the  distinguishing feature of a joint
  tenancy.  See Methodist Church v. First Nat'l Bank, 125 Vt.  124, 128, 211 A.2d 168, 171 (1965).  The language of the granting clause was, however, 
  internally inconsistent on exactly this point.  Although it used the term
  "joint tenants," it went on  to add "and their heirs and assigns forever." 
  The additional language suggests that upon the  death of one of the
  grantees, the grantor intended that the grantee's undivided one-half
  interest  would pass to his or her heirs and assigns, rather than to the
  surviving co-grantee.  The  additional language is inconsistent with a
  right of survivorship.

       Because the language of the granting clause alone is unclear, the
  habendum operates to  explain the intent of the grantor.  Here, the
  habendum is explicit that the interests conveyed were  tenancies in common. 
  Construing all parts of the deed together, we hold that it conveyed a 
  tenancy in common. This result is consistent with the legislative
  preference for tenancies in  common over joint tenancies.

       Plaintiff also argues that the court erred in refusing to admit
  extrinsic evidence to  demonstrate the intent of the parties in drafting
  the deed.  Plaintiff sought to call herself (FN2)   and the lawyer who
  drafted the deed.  The superior court rejected both witnesses, ruling that
  the  deed was not ambiguous.


       As a general rule, extrinsic evidence is not admissible to show the
  intent of the parties to  a deed unless the language of the deed is
  ambiguous.  We actually have two ambiguity rules.   For both, the question
  of whether ambiguity exists is one of law.  See Isbrandtsen v. North 
  Branch Corp., 150 Vt. 575, 577, 556 A.2d 81, 83 (1988).  First, when
  looking at particular  language in a deed, the court must accept the plain
  meaning of the language and not look to  construction aids if the language
  is not ambiguous.  See Simpson Dev. Corp. v. Herrmann, 155  Vt. 332,
  334-35, 583 A.2d 90, 92 (1990).  Second, if the court finds some ambiguity
  in  particular language, it must examine the whole instrument, attempting
  to determine the intent of  the drafters from all of the language and using
  relevant construction aids.  See Isbrandtsen, 150  Vt. at 580-81, 556 A.2d 
  at 85 (agreement must be viewed in its entirety; even if inartfully  worded
  or clumsily arranged, writing is not ambiguous if it fairly admits of one
  interpretation).   If the court then finds the writing is ambiguous, the
  proper interpretation becomes a question of  fact, to be determined on all
  relevant evidence.  See Breslauer v. Fayston Sch. Dist., 163 Vt.  416, 425,
  659 A.2d 1129, 1135 (1995).  If the court does not find the writing
  ambiguous, it  must declare the proper interpretation as a matter of law.

       We allow limited extrinsic evidence of "circumstances surrounding the
  making of the  agreement" in determining whether the writing is ambiguous. 
  See Isbrandtsen, 150 Vt. at 579,  556 A.2d  at 84.  This evidence is
  relevant, however, only when, in combination with the  writing, it supports
  an interpretation that is different from that reached on the basis of the
  writing  alone, and both are reasonable.  See id.  It may not be used to
  vary the terms of an unambiguous  writing.  See Tilley v. Green Mountain
  Power Corp., 156 Vt. 91, 93-94, 587 A.2d 412, 414  (1991).

       Based on a vague offer of proof that suggested that the evidence would
  go to the true  intent


  of the parties, the trial court ruled that the evidence was inadmissible. 
  It found that the language  of the deed was unambiguous such that extrinsic
  evidence would not be helpful.  It was  concerned that plaintiff was
  offering evidence to vary the terms of an unambiguous instrument,  and
  plaintiff's offer of proof did not allay that concern.

       As we held above, we do find internal inconsistency in the wording of
  the granting  clause, but the meaning of that clause is fully explained by
  the habendum.  We conclude that the  writing as a whole is unambiguous, and
  the trial court acted within its discretion in refusing to  admit the
  proffered evidence.  See In re Letourneau, 9 Vt. L.W. 346, 351 (1998) ("the
  trial  court has broad discretion to exclude marginally relevant evidence
  that is remote, tends to  confuse the issues or causes a waste of time");
  Doucette v. Doucette, 9 Vt. L.W. 313, 314  (1998) ("The trial court has
  broad discretion in determining the relevance of any evidence.").

       There is an additional reason to refuse to admit the evidence in the
  circumstances of this  case.  Because of the Legislature's preference for
  tenancy in common, as expressed in 27 V.S.A.  § 2, we can find a joint
  tenancy only if the intent to convey that property interest is expressed in 
  clear and definite terms.  We cannot find that the expression to create a
  joint tenancy is clear and  definite in this case.  Thus, we are left in
  the situation described by the New Hampshire Supreme  Court in Gagnon:

     Consequently in the opinion of a majority of the Court the 
     admission of evidence as to the facts and circumstances existing at 
     the time of and surrounding the drawing of this deed, no matter 
     how crystal clear it may be as to the grantor's intent to create a 
     joint tenancy, would serve no useful purpose in this case, for it 
     cannot alter the fact that he failed to express this intention in the 
     deed in clear language as required by [statute]. If he had there 
     would be no need for extraneous evidence to determine what kind 
     of estate the deed creates.


  71 A.2d  at 751.  Even if the extrinsic evidence was overwhelming that the
  parties to the deed in  this case intended to create a joint tenancy, that
  intent was inadequately expressed to allow us to  find such a property
  interest.  There can be no error in the refusal to admit evidence of that 
  unavailing intent.



	Associate Justice


FN1.  The habendum clause in a deed typically sets forth the estate to
  be held by the grantee.  While the granting clause  actively transfers the
  land from the grantor to the grantee/s, the habendum clause seeks to
  describe the type of title that has  been granted.  See, e.g., Estate of
  Fleck, 154 N.W.2d 865, 867 (Iowa 1967); see also Johnson v. Barden, 86 Vt.
  19, 24, 83 A. 721, 723 (1912) (it is proper office of habendum to define
  quantity of estate granted).

FN2.  Defendant argued that plaintiff's evidence was also inadmissible
  under 12 V.S.A. § 1603 because that statute  prohibits a party, in a case
  against the executor of an estate, from testifying in his or her favor with
  respect to a contract with a  person who is not living or competent to
  testify.  In view of our disposition, we do not reach this question.