Cortelyou v. Dinger

Supreme Court of New York · 1970 · Property

Propertytenancy in commonjoint tenancysurvivorshipexecutor's deedself-conveyanceReal Property Law section 240-bReal Property Law section 245

Facts

Lillie A. Dinger's will left the property to her two daughters, Dorothy Dinger Cortelyou and Alwina E. Dinger, share and share alike, creating a tenancy in common. Dorothy, acting as executrix, later executed deeds conveying the property to herself and Alwina as joint tenants with survivorship, using deed language stating that all estate the testatrix had and all estate the grantor had or had power to convey individually or by virtue of the will was conveyed; Alwina did not sign the deeds, but they were recorded and delivered to her. Dorothy later died intestate, and Alwina conveyed part of the land to other defendants. Dorothy's husband then sued, claiming Dorothy's original one-half tenancy-in-common interest had never been altered and descended to him as her sole distributee.

Issue

Whether deeds executed by one cotenant, signed by her as executrix and conveying the property to herself and her sister as joint tenants, validly transformed the grantor's own undivided one-half interest into a joint tenancy with survivorship. Also, whether the executor's deed language was sufficient to convey Dorothy's individual interest despite her signature being in fiduciary form and without her cotenant's signature.

Rule

Under Real Property Law section 240-b, a person owning an interest in real property that she has power to convey may effectively convey that interest to herself and another as grantees, with the same effect as if a stranger had made the conveyance. A tenant in common may convey her own undivided share without the consent or joinder of the other cotenant. Under Real Property Law section 256, an executor's deed containing the statutory language conveying all estate the grantor has or has power to convey, whether individually or by virtue of the will or otherwise, also conveys the grantor's individual interest unless expressly reserved under section 245.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Albany, Nina Mercer and her brother Leo Mercer inherited a duplex from their aunt "share and share alike," so each held an undivided one-half interest as tenants in common. Nina later signed and delivered a deed conveying the duplex to "Nina Mercer and Leo Mercer, as joint tenants with right of survivorship," but Leo never signed anything.

If Leo challenges the deed during Nina's lifetime, what is the strongest conclusion under the governing rule?

Explanation. A tenant in common has a separate estate in her undivided share and may convey that share without the consent or joinder of the other cotenant. The governing rule also allows an owner to convey property or an interest to herself and another as grantees with the same effect as if a stranger had made the conveyance. But the deed can operate only on Nina's own half, not Leo's half.