Citations
- 105 So. 2d 912
Full opinion text
HORTON, Judge.
This appeal is from a final decree in a suit brought by the appellant in the court below to construe a deed of conveyance by appellee’s deceased husband to her. The chancellor below concluded that the deceased husband of the appellee intended to create an estate by the entireties in all oí the real property.
In 1953, Donald A. Eastman, the husband of the appellee, executed a warranty deed to the appellee, his wife, purporting to convey the following described property:
“An undivided half (1/2) interest in Lots 3, 4, 5, 40, 41, and 42, of Block C of Commercial Shore Crest a subdivision in Dade County, Flojrida, according to the Plat thereof, recorded in Plat Book 17, Page 16, of the Public Records of Dade County, Florida, less the Northerly five (5) feet of Lot 3, which was conveyed to the State of Florida.
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“It is the express intention of the grantor herein to create an Estate by Entireties between Donald A. Eastman, a married man, and Karen M. Eastman, his wife. Henceforth, this property shall be held by the entireties by and between the above parties to this deed.”
Upon the death of Donald A. Eastman, the appellee-widow concluded that having survived her husband, she was entitled under the aforesaid conveyance to the entire fee simple title to the above described property and the same was not listed as an asset in her husband’s estate. The appellant, a creditor of the decedent, then brought this action for a declaratory decree, asking the court to construe the instrument of conveyance.
The appellant contends that the deed off conveyance created an estate by the entireties in an undivided one-half interest only. However, we conclude that the rec-ord, as well as the instrument of conveyance, more properly raise the question of whether or not it was the intent of the grantor to create a right of survivorship in the appellee-wife. Section 689.11, Fla. Stat., F.S.A., provides for a conveyance of real estate by a husband or wife direct to the other and that such conveyance shall be effectual to transfer the legal title to such husband or wife the same as if the parties were not married. An estate by the entire-ties could, pursuant to this section, be created by a spouse holding fee simple title conveying by deed to the other in which the purpose to create the estate is stated. Section 689.15, Fla.Stat., F.S.A., abolishes the right of survivorship in real and personal property held by joint tenants except in cases of estates by the entireties or in tenancies in common where the instrument creating the estate shall expressly provide for the right of survivorship. We are of the view that the conveyance by Donald A. Eastman, then the owner of the entire fee, of an undivided one-half interest to the ap-pellee created a tenancy in common with the appellee; that the intention thereafter expressed in the deed to hold “this property” as an estate by the entireties between Eastman and his wife, was in effect the creation of a right of survivorship in the tenancy in common, pursuant to § 689.15, supra. It is true that the deceased husband, in making the conveyance to the appellee, did not use the words “survivor” or “sur-vivorship” but used the words “estate by the entireties”. Nevertheless, we conclude that his misuse of words should not thwart his intent and that his intent was obviously to establish an estate in the property which, upon the death of either, would vest the full title in the survivor. To construe the deed otherwise would, we feel, defeat the intent of the grantor.
In the case of Runions v. Runions, 1948, 186 Tenn. 25, 207 S.W.2d 1016, 1017, 1 A.L.R.2d 242, the Supreme Court of Tennessee had before it a factual situation similar to the present case. In that case, Runions was the owner of certain real prop