Summary 2009 WY 10

Summary of Decision issued January 29, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: In re: Estate of Thomas

Citation: 2009 WY 10

Docket Number: S-08-0109

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Appellant Dickson: William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellee Thomas: Russell Rauchfuss, Casper, Wyoming.

Facts/Discussion: Appellant Dickson requested review of a district court order which quieted title to the property at issue in the appeal, to Dickson and the estate of Thomas “in equal shares as tenants in common.” Thomas was Dickson’s brother. Dickson contended that the quiet title action should have resulted in recognition that the two siblings held title to the property as joint tenants with sole right of survivorship, and that the occurrence of Thomas’ death left Dickson as the sole owner of the property.

The grantor attempted to create a tenancy by the entireties in his son and daughter but he also used the words “with right of survivorship and not as tenants in common.” The Court thought the Exhibit 1 Deed evidenced an unintentional error (mistake.) A joint tenancy can only be created by an act of the parties but may also be the result of an attempt to create an impossible tenancy by the entirety. The Court concluded that the deed was not ambiguous when all of its language was read together because tenancy in common was forthrightly eliminated. That portion of the district court’s judgment was reversed and the Court remanded the district court enter a judgment reflecting that after the death of her brother, Dickson was now sole owner of the land described in the Exhibit 1 Deed.

The Court thought the circumstances were different with the Exhibit 2 Deed. Wyo. Stat. Ann. § 34-4-140 reflects the legislative intention that “joint tenancies” and “tenancies by the entireties” are created by the use of one or the other of those phrases. The Court considered the wording of the Exhibit and stated that since there was no apparent intention to create a tenancy by the entireties, by default it assumed that a tenancy in common was intended.

Conclusion: The Court held that the district court erred in treating the Exhibit 1 Deed as creating a tenancy in common. That portion of the district court’s judgment was reversed. The Court affirmed the district court’s order to the extent that it settled the ownership of the Exhibit 2 Deed property in Dickson and Thomas’s estate as tenants in common.

Affirmed in part, reversed in part.

J. Hill delivered the decision.

Link: http://tinyurl.com/bwkdcc .

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