[W]hether those survivorship rights are paired with a tenancy in common and therefore indestructible or whether they are paired with a joint tenancy, in which case the property would be subject to partition at the whim of either party.
Smith v. Cutler
Defendant Rucker, a home owner in her 70s married Smith, a man in his 80s. Rucker wanted to make sure that Smith would get the home if she died first, so she deeded him and undivided one-half interest in her home. The deed stated that they were to hold the land "for and during their joint lives and upon the death of either of them, then to the survivor of them, his or her heirs and assigns forever in fee simple, together with every contingent remainder and right of reversion."
A conflict later arose between their families. Smith's son, the plaintiff, then filed a partition on behalf of his father, who had become incapacitated.
The equitable master granted summary judgment for Smith. The Court of Appeals affirmed.
Page 339, Paragraph 2
Page 339, Paragraph 1
[T]he deed created a tenancy in common between Smith and Rucker for their lives, with each holding a remainder in fee simple contingent upon surviving the other, and that this remainder interest was not subject to partition.
Page 342, Paragraph 2
The use of the phrase "for and during their joint lives and upon the death of either of them, then to the survivor of them" indicates an intention of the parties to share a tenancy in common for life