Thomas, Daniel F.

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Maryland Law ReviewVolume 21 | Issue 4 Article 7Real Property Held by Tenants by the Entirety asthe Subject of an Advancement - Barron v. JanneyDaniel F. ThomasFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Property Law and Real Estate CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationDaniel F. Thomas, Real Property Held by Tenants by the Entirety as the Subject of an Advancement - Barron v. Janney, 21 Md. L. Rev. 344(1961)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol21/iss4/7MARYLAND LAW REVIEWWhen the Social Security system was planned, it wasdecided that the part which would in the future be mostbasic and inclusive should be financed from contributionsof workers and their employers. The size of the benefitspayable to the contributor or his dependents was to bearsome relation to the amount of his earnings which had beensubject to the Social Security tax. The same principleswere later applied to the self-employed. It is under-standable that American workers and their employers, andthe self-employed, feel a justifiable sense of participation- and even ownership - in the social insurance system towhich they have contributed. 4 The contributory nature ofthe system would certainly seem to impose on Congresscertain moral obligations to the contributors. This moralobligation (which continues beyond the term of the in-dividual legislator and even beyond the life of the indi-vidual contributor) is to devote to the payment of benefits,by direct expenditure or by investment, the amount ofthe contributions. The Nestor decision should make it clearthat this moral obligation does not give to insured per-sons and their dependents the kind of legal rights whichcharacterize private contractual insurance. Rather, the par-ticipants in Social Security must rely on that Court's as-surance that any changes in their present or potentialbenefits must not conflict with the Due Process Clause ofthe Fifth Amendment and must have the approval ofpublic opinion which can be reflected at Congressionalelections.Real Property Held By Tenants By The EntiretyAs The 'Subject Of An AdvancementBarron v. Janney'An aged couple owned a tract of land adjacent to thefamily farm as tenants by the entireties. They improvedthe tract by remodeling an old school house thereon intowhich their daughter, the defendant, moved in 1953. In1957 the parents jointly conveyed by deed all their interest"That there is such a sense of ownership can hardly be doubted when,for example, the recent Congressional and public controversy over healthcare for the aged is observed. The proponents of hospitalization benefitsas a part of the social Insurance system very emphatically insist that suchbenefits would not be "charity" but rather an earned right.1225 Md. 228, 170 A. 2d 176 (1961).344 [VOL. XXIBARRON v. JANNEYto the defendant.' After the parents died intestate a yearapart, the brother of the defendant filed a bill in equityseeking to require his sister to elect whether she wouldtreat the conveyance as an advancement or partition thetract between herself and the complainant. There wasconflicting testimony in regard to the actual intent of thefather with respect to the conveyance, and no testimonywas introduced as to the intent of the mother. The chan-cellor found the conveyance to be an advancement. Inreversing, the Maryland Court of Appeals assumed, with-out deciding, that the doctrine of advancements was stillapplicable to real property, but held that the conveyanceto the defendant was not an advancement.The Court found one of the essential elements of anadvancement to be "that the gift must have been partof the estate of a donor, which upon his death would de-scend to his heirs but for the fact that, by his act of makingthe gift, it had been separated from or taken out of hisestate."' Since neither parent could have died intestateseized and possessed of property owned by the entireties,because, upon the death of either, the whole would remainin the survivor with the heirs of the first deceased spousetaking no interest, the Court declared that, in order forthe property to have been an advancement, it would havehad to have been held by moieties and not by entireties.Since the basic requirement of intestacy with respect tothe property in question was lacking, there could have beenno advancement.The doctrine of advancements4 is a creature of statute"and results from the intent of the legislature to providefor equality among the heirs of the decedent.6 Generally,an advancement is an irrevocable gift in presenti of moneyor property, from an intestate to a descendant, to enablethe donee to anticipate his inheritance to the extent of theI In 1955 the father informed the defendant in a written note, signed onlyby himself, that the remodeled school house was hers. This note alonecould not have formed the basis of an advancement since the fatherhad no estate he could have given to the defendant due to the survivor-ship feature of property held by the entireties.2 Supra, n. 1, 236.For a general discussion of advancements see Elbert, Advancements: I,II, III, 51 Mich. L. Rev. 665 (1953); 52 Mich. L. Rev. 231 (1953) ; 52Mich. L. Rev. 535 (1954).54 VERNIER, AmERICAN FAMmY LAWS (1936) 114; but see 3 AMmuIcALAW OF REAL PROPERTY (1952) 585 as a possible qualification.6 Dilley v. Love, 61 Md. 603 (1883)."[Cj)ourts, both in this country and in England, have uniformlygiven a liberal construction to such enactments, in order to enforcethe cardinal doctrine which they announce, that in all such casesequality is equity." (605)19611MARYLAND LAW REVIEWgift.7 Although there is a great diversity in the treatmentof detail in the various jurisdictions,' in every state butNew Mexico9 there are statutes recognizing the doctrine.A majority of jurisdictions have enacted statutes concern-ing advancements which are expressly applicable to bothreal and personal property. I" The statutes in the remain-ing jurisdictions speak in more general terms. TheIndiana," Iowa, 2 and Kansas 3 statutes employ the term"property." The Georgia Code14 contains the words "eitherin money or property," while the Florida advancementstatute 5 provides, "[w]hen any person shall have receivedany advancement from an intestate . . . ." However, eventhough these general terms are employed, such statuteshave been interpreted so as to encompass both reality andpersonalty 6 or the courts have charged both realty andpersonalty without any discussion of the problem. 77 See the general discussion in the Michigan Law Review, supra, n. 4,for further refinements of the definition of advancements which is beyondthe scope of this note.8 ATKINSON, WILLS (2d ed. 1953) 716.But see Harper v. Harris, 294 F. 44 (8th Cir. 1923) apparently assumingthat the doctrine exists in New Mexico.1 5 CODE OF ALA. (1958) tit. 16, § 14; 6 ARIZ. REV. STAT. ANNO. (1956)§ 14-211; 5 ARK. STAT. ANNO. (1947) § 61-116; 54 WEST'S ANwNO. CALIF.PROHATE CODE (1956) § 1051; 6 COLO. REV. STAT. (1953) § 152-2-5; 21CONN. GEN. STAT. ANNO. (1960) § 45-274; 8 DEL. CODE ANNO. (1953)tit. 12, § 515; D.C. CODE (1951) § 18-108; 3 IDAHO CODE (1948) § 14-107;SMITH-HURD ILL. ANNO. STAT. (1961) § 3-15; BALDWIN'S Ky. REV. STAT.ANNO. (1955) § 391.140; 5 LA. CIVIL CODE (1952) Art. 1227, 1254, 1255,1283; 4 ME. REV. STAT. (1954) ch. 170, § 4; 6 ANNO. LAWS OF MASS.(1955) ch. 196, § 3; 23 MICH. STAT. ANNO. (1943) § 27.3178 (157); 31MINN. STAT. ANNO. (1947) §§ 525.53, 525.531; 1A Miss. CODE ANNO.(1942) § 475; 26 VERNON'S ANNO. MO. STAT. (1956) § 474.090; 6 REV.CODE OF MONT. ANNO. (1947) § 91-412; 2A REV. STAT. OF NEB. (1956)§ 30-112; 2 NEV. COMP. LAWS (Supp. 1942) § 9882.301; 5 N. H. REV.STAT. ANNO. (1955) §§ 561.13, 561.15, 561.16; N. J. STAT. ANNO. (1953)§ 3A:4-8; 13 MCKINNEY'S CONSOL. DECEDENT ESTATE LAW OF N. Y. ANNO.(1949) § 85; 2A GEN. STAT. OF N. C. (1950) § 29-1, Rule 2; 6 N. D.CENTURY CODE (1960) § 30-21-12; PAGE'S OHIO REV. CODE ANNO. (1954)§ 2105.05; 2 OKLA. STAT. (1951) tit. 84, § 223; 2 ORE. CoMP. LAWS ANNO.(1940) § 16-301; 20 PURDON'S PA. STAT. ANNO. (1950) tit. 20, § 1.9; 6 GEN.LAWS OF R.I. (1956) § 33-1-11; 2 CODE OF LAWS OF S.C. (1952) § 19-56;3 S. D. CODE (1939) § 56.0114; 6 TENN. CODE ANNO. (1955) § 31.702; 17AVERNON'S ANNO. TEX. STAT. PROBATE CODE (1956) § 44; 8 UTAH CODE ANNO.(1953) § 74-4-18; 5 VT. STAT. ANNO. (1958) tit. 14, § 1723; 9 CODE OFVA. (1950) § 64-17; 3 REMINGTON'S REV. STAT. OF WASH. ANNO. (1932)§ 1348; 1 W. VA. CODE ANNO. (1955) § 4094; 37 WEST'S WIS. STAT. ANNO.(1958) § 318.24; 3 Wyo. STAT. (1959) § 2-41.u 3 BURNS' IND. STAT. ANNO. (1953) § 6-210.12 2 CODE OF IOWA (1958) § 636.44.GEN. STAT. OF KAN. ANNO. (1949) § 59-510.1431 CODE OF GA. ANNO. (1959) § 113-1013.'321 FLA. STAT. ANNO. (Cum. Supp. 1960) § 734.07.11 West v. Beck, 95 Iowa 520, 64 N.W. 599 (1895).17 Bowen v. Holland, 184 Ga. 718, 193 S.E. 233 (1937) ; Pylant v. Burns,153 Ga. 529, 112 S.E. 455 (1922); Klein v. Blackshere, 113 Kan. 539,215 P. 315 (1923) ; Johnson v. Eaton, 51 Kan. 708, 33 P. 597 (1893).[VOL. XXIBARRON v. JANNEYIn Maryland the descent (or inheritance) statutes' anddistribution statutes 9 are codified under different articles.This separation has lead to some doubt as to whether thedoctrine of advancements is still applicable to realty ° sinceArticle 46, Section 31 of the 1911 Maryland Code,2' whichdealt with advancements of real property, along with othersections of the inheritance statute, was repealed in 1916.2The reason for abolishing these sections was to moreclosely assimilate the rules regulating the descent of realtywith those regulating the distribution of personalty."8 Onthis basis, the Maryland Court of Appeals in a recent case,Kreamer v. Hitchcock,24 stated that "Sections 1 and 2 ofArticle 46 [which accomplished the assimilation of thedescent and distribution rules] in practical effect incorpo-rate by reference the provisions of Article 93 relating tothe distribution of personal property of intestates". Itwould, therefore, logically seem to follow that since theonly advancement statute is now contained within Arti-cle 93 relating to the distribution of personal property ofintestates, it should be applicable to real, as well as per-sonal property, as the court assumed in the principal case.Since real property may be the subject of an advance-ment, does the fact that tenants by the entireties conveyedthe realty to their heir prior to their death prevent theconveyance from being an advancement? It has been saidthat one of the necessary prerequisites of a valid advance-ment is that the donor must have irrevocably parted withhis title in the subject matter of the advancement, saidtitle passing to and vesting in the donee.'5 Since an irre-S4 MD. CODE (1957) Art. 46.i8 MD. CODE (1957) Art. 93.'8 M.L.E. (1960) 334, Descent and Distribution, § 53; 2 SYKES, MARY-LAND PROBATE LAW AND PRACTICE (1956) 58.1 1 MD. CODE (1911) Art. 46, § 31:"Any child or children of the intestate, or their Issue, having receivedfrom the intestate any real estate by way of advancement may electto come into partition with the other parceners on bringing such ad-vancement ... into hotchpot with the estate descended .. .MD. LAWS 1916, ch. 325.=Ibid."An act to repeal Sections 1 to 23 (inclusive), 25, 26, 27, 28 and 31of Article 46 of the Code . . .and to enact in lieu thereof four newsections . . . ; thereby assimilating the law relating to the realproperty of decedents more nearly to the law relating to personalproperty."-207 Md. 454, 462, 115 A. 2d 255 (1955), cited in principal case, p. 234.' Colley v. Britton. 210 Md. 237, 123 A. 2d 296 (1956) ; Harley v. Harley,57 Md. 340 (1882); Fennell v. Henry, 70 Ala. 484, 45 Am. Rep. 88(1881) ; McCellan v. McCauley, 158 Miss. 456, 130 So. 145 (1930) ; Greenev. Greene, 145 Miss. 87, 110 So. 218, 49 A.L.R. 565 (1926) ; Callender v.McCreary, 4 How. 356 (Miss. 1840), cited in principal case, p. 236;1961]MARYLAND LAW REVIEWvocable transfer of the donor's title is necessary, courtshave held that the donor must have possessed an alienableestate in the property at the time of the transfer, and, ifan inalienable estate were purportedly transferred to thedonee, no advancement could have been made.26 Althoughat common law the husband, who owned property with hisspouse by the entireties, alone had the power to alienatesame27 and thereby divest his wife of her right of possessionduring his lifetime, by the weight of modern authority,with the inception of Married Women's Acts,28 neitherspouse alone has any specific interest in the property toconvey or encumber so held as long as the tenancy exists,29notwithstanding some decisions to the contrary.30Further, and perhaps of greater significance, in orderfor a valid advancement to occur, the property which wastransferred to the donee must have been a part of thedonor's estate at the time of the advancement, and, uponthe donor's death, would have descended to his heirs hadthe donor died intestate at that time.31 In other words,the property transferred must have been inheritable uponthe death of the intestate. However, one of the incidents ofa tenancy by the entireties, perhaps the most important,82is the right of survivorship33 which cannot be defeated byany act of the co-tenant.34 Since property so held does notpass by succession upon the death of a tenant by the en-tireties but rather remains in the living co-tenant by theincident of survival,8 5 the property is non-inheritable and,Rickenbacker v. Zimmerman, 10 S.C. 110, 30 Am. Rep. 37 (1878), cited Inprincipal case, p. 236, Darne's Ex'r v. Lloyd, 82 Va. 859, 5 S.E. 87 (1887)."McClellan v. McCauley, supra, n. 25; Greene v. Greene, 8upra, n. 25;Rains v. Hays, 6 Lea. 303, 40 Am. Rep. 89 (Tenn. 1880).I Cases collected in 2 TIFFANY, REAL PROPERTY (3d ed. 1939) 232, § 435,n. 92.28 4 MD. CODE (1957) Art. 45. § 1 et seq.2'Routzahn v. Cromer, 220 Md. 65, 150 A. 2d 912 (1959); Lissau v.Smith, 215 Md. 538, 138 A. 2d 381 (1958); Columbian Carbon Co. v.Knight, 207 Md. 203, 114 A. 2d 28 (1955) (Lease executed by the husbandalone on property held by tenants by the entirety held void when made,but the husband was estopped from claiming Its invalidity after thedivorce of the co-tenants) ; Carlisle v. Parker, 38 Del. 83, 188 A. 67 (1936) ;Richart v. Roper, 156 Fla. 822, 25 So. 2d 80 (1946) ; Sharp v. Baker, 51Ind. App. 547, 96 N.E. 627 (1911); O'Malley v. O'Malley, 272 Pa. 528,116 A. 500 (1922) ; Smith v. Smith, 200 Va. 77, 104 S.E. 2d 17 (1958).10 King v. Greene, 30 N.J. 395, 153 A. 2d 49 (1959) ; Goodrich v. Villageof Otego, 216 N.Y. 112, 110 N.E. 162 (1915)."IRickenbacker v. Zimmerman, 10 S.C. 110, 30 Am. Rep. 37 (1878) citedin principal case, p. 236.Hutson v. Hutson, 168 Md. 182, 177 A. 177 (1935).18 Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266 (1878).Hutson v. Hutson, supra, n. 32.Stieff Co. v. Ullrich, 110 Md. 629, 73 A. 874 (1909) ; Marburg v. Cole,supra, n. 33; Tyler v. U.S., 281 U.S. 497 (1930) (stating Maryland law) ;[VOL. XXICUMMINGS v. STATEtherefore, not subject to the application of the doctrine ofadvancements.However, the principal case does not fall within theusual advancement situation where property is trans-ferred to a child by one parent. In the instant case, boththe husband and wife joined in the execution of the deedto the defendant. Although neither spouse, acting alone,had the power to convey or encumber any interest in theproperty held by the entireties, 6 the co-tenants, acting to-gether and voluntarily, could validly alienate such prop-erty. Therefore, the deed executed by both spouses whichnamed defendant as the grantee transferred an alienableestate.The Court of Appeals, however, based its decision uponthe absence of the prerequisite of inheritability in the in-stant case. While this factor is lacking in any case whereparties hold property by the entireties, and the Court wascorrect in its application of the theoretical aspect of thelaw, ancient technicalities should not be employed to bindall future decisions in this area of advancements. TheCourt, in the proper case, should find an advancement, ifthe policy prerequisites for an advancement are other-wise present,38 notwithstanding the fact that property washeld by the entireties and therefore not technically in-heritable. Where the intent to make an advancement isclear on the part of both spouses, this intent should begiven effect. If not, the policy of the legislature to providefor equality of distribution among the heirs of the in-testate will be defeated.DANIEL F. THOMASDeliberation And Premeditation In First Degree MurderCummings v. State'An intimate, clandestine relationship had developedbetween defendant and decedent, and they often took longautomobile trips together. On July 28, 1960, the decedentdrove from Chicago with her sister to the home of rela-Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941); Sloan v. Jones, 192Tenn. 400, 241 S.W. 2d 506, 25 A.L.R. 1235 (1951); also see 2 TIFFANY,REAL PROPERTY (3d ed. 1939) § 430.Supra, n. 29.8 Tizer v. Tizer, 162 Md. 489, 160 A. 163 (1932); also see 2 TIFFANY,REAL PROPERTY (3d ed. 1939) § 436.See Elbert, op. cit. 8upra, n. 4.1223 Md. 606, 165 A. 2d 886 (1960).1961]

Real Property Held by Tenants by the Entirety as the Subject of an Advancement - Barron v. Janney

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