## Facts

- In 1941, a Vermont farm was conveyed to Carrie A. Coolidge, her husband, and one of their sons, Melvin G. Coolidge, “as joint tenants and not as tenants in common.”
- The three understood the conveyance to mean that the last survivor of the three would own the farm outright through the joint tenancy’s right of survivorship.
- In 1966, Carrie’s husband died; afterward, Carrie moved off the farm.
- Carrie was elderly and living on limited income.
- Carrie filed an action for partition under 12 V.S.A. § 5161, which provides that a person holding real estate with others “as joint tenants, tenants in common or coparceners” may have partition.
- Melvin opposed partition, arguing that the parties’ shared understanding about survivorship meant the statute should not allow partition in this setting.
- The trial court entered judgment ordering partition, although the later division proceedings described in 12 V.S.A. § 5169 had not yet been ordered.
- Melvin appealed; Carrie argued the order was interlocutory and reviewable only through certification procedures rather than by appeal as of right.

## Issues

1. Whether a judgment ordering partition, entered before the later statutory division proceedings occur, is a final judgment appealable as of right.
2. Whether 12 V.S.A. § 5161 authorizes partition of property held in joint tenancy when the parties originally understood that the ultimate survivor would take the whole property by survivorship.

## Decision

- The Vermont Supreme Court held that a judgment ordering partition is final and appealable as of right as to the entitlement to partition and the parties’ respective interests, even though later proceedings will carry out the division.
- The court held that 12 V.S.A. § 5161 applies by its terms to joint tenancies, and the parties’ survivorship understanding does not, by itself, bar partition.
- The court concluded that the deed phrase “as joint tenants and not as tenants in common” merely confirmed the joint tenancy form (including survivorship) and did not add a restriction that would remove the property from the statute.
- The court affirmed the judgment ordering partition.

## Legal Principles

- A decree ordering partition is final for purposes of appeal with respect to (a) the right to the remedy of partition and (b) the determination of the parties’ interests, even if additional statutory steps are required to complete the physical or monetary division.
- Under 12 V.S.A. § 5161, a joint tenant has a statutory right to partition; courts will not read an exception into the statute simply because the parties expected survivorship to control eventual ownership.
- Because survivorship is a standard feature of joint tenancy, the presence of survivorship expectations does not, without more, prevent the statute from operating on joint-tenancy property.
- Language stating the grantees take “as joint tenants and not as tenants in common” identifies the estate as a joint tenancy but does not, by itself, create an enforceable waiver of partition.

## Conclusion

The Vermont Supreme Court affirmed an order granting partition of a farm held in joint tenancy by a mother and her son, holding that the order was final and appealable and that the statutory right to partition under 12 V.S.A. § 5161 is not defeated merely because the joint tenants originally expected the last survivor to own the property outright.


Coolidge v. Coolidge, 287 A.2d 566 (1971)