Cloud v. Gardner

WILSON, J.

By a deed executed May 4, 1920, the real property in question in this proceeding was conveyed to Bertha C. Davis and Augustus L. Davis, her husband, as joint tenants. Bertha passed away in April, 1926. Augustus died intestate in November, 1946, leaving no issue and no surviving spouse.

[705]

Appellant is the surviving sister of Augustus and Ms only heir at law. Respondents are the sole surviving lineal descendants of Bertha. The property covered by the deed was originally the separate property of Bertha.

In proceedings in the estate of Augustus to determine heir-ship pursuant to section 1080 of the Probate Code the trial court determined that the deed by which Bertha and Augustus acquired the property is a joint tenancy deed and adjudged that in accordance with section 229

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of the Probate Code the property should go to respondents as the lineal descendants of Bertha, the predeceased spouse of Augustus. Prom that judgment appellant has appealed.

Three elements of the deed are commented upon in the briefs as having a bearing on its effect: (1) It names the grantees followed by the words “as Joint Tenants, with right of survivorship”; (2) in the granting clause it grants the property to the second parties “as Joint Tenants, and not as tenants in common, and

to the survivor of them, the heirs and assigns of such survivor

forever”; (3) the

habendum

reads “To Have and to Hold” unto the second parties “as Joint Tenants, and

to the survivor of them, the heirs and assigns of such survivor

forever.”

Appellant contends that the italicized words in items (2) and (3) are inconsistent with joint tenancy and that the inclusion of those words in the deed created a tenancy in common. In each item the grantees are denominated as “joint tenants. ’ ’ In item (1) the words “with the right of survivorship” are superfluous. It is unnecessary to accompany the creation of a joint tenancy with a declaration respecting survivorship since survivorship is an incident of such tenancy and the quoted words add nothing to the effect of the deed.