Lober v. Dorgan

Bird, J. George W. Bush and his wife, on April 12, 1909, took a real estate mortgage from Joseph and Leona Rudinger for $2,700. The mortgage ran to “George W. Bush, and Sarah Bush, his wife, of — 63 — Gobleville, Michigan, as joint tenants, with sole right to the survivor.” In 1913, George W. Bush died and his widow took charge of the mortgage and collected thereon $850. In 1918 she died. The administrator of the husband’s estate insists that one-half of this mortgage belongs to the estate of his intestate. This is denied by the administrator of the wife’s estate. Not being able to agree concerning it, this bill was filed by plaintiff to have the question determined. It was contended on the part of the plaintiff that our authorities hold that there can be no joint tenancy in personal property in this State and, therefore, it would follow that defendant could not take the entire mortgage as survivor. It is argued that this was determined by the case of Ludwig v. Bruner, 203 Mich. 556. Defendant’s counsel insists that this question was not decided by the Ludwig Case. It is pointed out by him that in the Ludwig Case the language described the parties merely as “joint tenants,” whereas in the present mortgage they are not only described as “joint tenants,” but it is expressly provided that the survivor shall take the fund. The chancellor took the view of the defendant, holding that the wife, as survivor, took the entire fund. The mortgage in the Ludwig Case ran to “Samuel Ludwig and Sarah E. Ludwig, as joint tenants.” The present mortgage runs to “George W. 'Bush and Sarah Bush, his wife, as joint tenants, with sole right to the survivor.” It was decided by the Ludwig Case that where there was a conveyance of personalty to two or more parties as joint tenants they would take as tenants in common. The question, therefore, gets around to this, whether the use of the additional words “with sole right to the survivor” will change the rule — 64 — established in that case. There was much argument and many things said in the Ludwig opinions, but the real question and the only question before the court was whether when the parties were described as joint tenants of personalty either party would take the whole by reason of the incident of survivorship. It seems to me the question is open as to what force we will give the words “with sole right to the survivor.” In the Ludwig Case we said we would not, as a matter of law, infer from the words “joint tenants” the ordinary incident of survivorship, but that is not the question here. Here it is a question of contract. The parties themselves have provided for survivorship by agreement. The parties having so contracted, is there any valid reason why we should refuse to enforce their agreement? Our statute does not prohibit such a contract. There is nothing in the agreement which is immoral or against the public good. If this be so, why should a court of last resort arbitrarily say to the citizens of its State “you may not contract that the survivor of two grantees shall succeed to the title of personal property.” Once this step is taken and a devise of personal property in a will to two persons and to their survivor will not be enforced. If there be any reason why we should say so it does not occur to me. A still more serious question is, Have we the inherent right to say so ? If we are to deny the right to the people to make a harmless contract we should have some vhry good reason for doing so. In many States joint tenancies with their common law incidents have been abolished by legislation, but even in those States where joint tenancies result from express contract they are recognized as valid. The State of Georgia is an illustration of this. It is said in Equitable Loan & Security Co. v. Waring, 117 Ga. 599, 676 (44 S. E. 320, 353, 62 L. R. A. 93, 130), that the code provides that: — 65 — “ ‘Joint tenancy does not exist in this State, and all such estates, under the English law, will be held to be tenancies in common under this code.’ Civil Code, 1895, § 3142. * * * While the doctrine of survivorship, as applied to joint tenancies, has been distinctly abolished and does not exist in this State, there is no law of this State that we are aware of which prevents parties to a contract, or a testator in his will, from expressly providing that an interest in property shall be dependent upon survivorship. Of course, all presumptions are against such an intention; but where the contract or will provides, either in express terms or by necessary implication, that the doctrine of survivorship shall be recognized, we know of no reason why a provision in the contract or will dependent upon such doctrine may not become operative under the laws of this State. * * * At common law an estate in joint tenancy, with the incident of survivorship, was created in any case where lands or tenements were granted to two or more persons, to be held in fee simple, fee tail, for life, for years, or at will. The mere creation of the estate in two or more persons, without more, drew to it the incident of survivorship. See 2 B. L. Com. p. 180. In Georgia the mere creation of the estate in two or more persons never draws to it survivorship as an incident, and the presumption fis in all cases that survivorship was not intended. But where by express terms or necessary implication, a survivorship is provided for, the law of Georgia allows it to exist. This exact question has been passed upon in other States having statutes abolishing the doctrine of survivorship as! applied to joint tenancies. In Arnold v. Jack’s Ex’rs, 24 Pa. St. 57, the supreme court of Pennsylvania held that, though survivorship, as an incident to joint tenancies, had been abolished in that State, it might be expressly provided for by will or deed; Knox, J. in the opinion saying: “ ‘But, conceding that the right of survivorship, as an incident of a joint tenancy, no matter how created, is gone, it hy no means follows that this right may not he expressly given, either by a devise in a will, or hy grant in a deed of conveyance. — 66 — It may cease to exist as an incident, and yet be legally created as a principal.’ “See, also, Jones v. Cable, 114 Pa. 586 (7 Atl. 791); Sturm v. Sawyer, 2 Pa. Super. Ct. 254; Lentz v. Lentz, 2 Phila. 117. In the case of Taylor v. Smith, 116 N. C. 531 (21 S. E. 202), the supreme court of North Carolina held that the act abolishing survivorship in estates in joint tenancy did not prohibit contracts making the rights of the parties dependent on survivor-ship. In the opinion, Avery, J., said: ‘“The act of 1784 (Gode, § 1326) abolishes survivorship where the joint tenancy would otherwise have been created by the law, but does not operate to prohibit persons from entering into written contracts as to land, or verbal agreements as to personalty, such as to make the future rights of the parties depend upon the fact of survivorship.’ “See, also, 17 Am. & Eng. Enc. Law (2d Ed'.), p. 650.” It is observed in 17 Am. & Eng. Enc. Law (2d Ed.), p. 650, that: “A statute abolishing survivorship relates only to estates in joint tenancy, and does not have the effect to abolish survivorship in choses in action; and upon the death of one of several payees or obligees of a note or bond, or the like, the right of action survives to the others, notwithstanding the statutes.” In Michigan the doctrine of the common law with reference to joint tenancies in personal property has never been adopted. Wait v. Bovee, 35 Mich. 425. But this fact does not furnish any reason for holding that parties may not create them by express contract. The statute nowhere forbids it and the legislature itself has recognized joint tenancies in real estate by pointing out the way in which they may be created. 3 Comp. Laws 1915, § 11562. The principal cases in which this question has been discussed by this court are: Ludwig v. Bruner, 203 Mich. 556; Hart v. Hart, 201 Mich. 207; Negaunee National Bank — 67 — v. LeBeau, 195 Mich. 502 (L. R. A. 1917D, 852); Luttermoser v. Zeuner, 110 Mich. 186; Wait v. Bovee, 35 Mich. 425. These decisions do not forbid the creation of the right of survivorship in personalty where it is created by the express act of the parties. In Negaunee National Bank v. LeBeau, supra, this court permitted a bank deposit to pass to the survivor independent of the statute. The conclusion of the chancellor was clearly right and the decree should be affirmed. Moore, Wiest, Clark, and Sharpe, JJ., concurred with Bird, J.