## Facts

- A 1928 deed conveyed a one-acre tract in Rockingham County, Virginia to Add Shoemaker and Bessie Shoemaker “as joint tenants, and not as tenants in common.”
- Add died intestate in 1951, survived by Bessie and their children.
- After Add’s death and before her own death in 1984, Bessie executed a deed purporting to convey the entire interest in a 0.542-acre portion of the tract to her son, Wilmer A. Shoemaker.
- Wilmer later devised the 0.542-acre portion to Shelby Jean Moubray, who in 1988 conveyed it to David Martin Smith and Vivian Secrist Smith.
- Several of Add and Bessie’s daughters (the Hoovers) asserted that Va. Code §§ 55-20 and 55-21 eliminated survivorship unless clearly expressed, so Add and Bessie each held a one-half interest; Add’s half passed to his heirs at death.
- The Hoovers filed suit seeking a judicial sale and distribution of proceeds, alleging the land could not be conveniently partitioned in kind.
- Defendants demurred, asserting the 1928 deed created a survivorship estate, making Bessie sole owner upon Add’s death and validating subsequent conveyances.
- The trial court sustained the demurrers and dismissed the complaint with prejudice as to the 0.542-acre tract held by the Smiths.

## Issues

1. Whether a deed to grantees “as joint tenants, and not as tenants in common” manifests the intent required by Va. Code §§ 55-20 and 55-21 to create a survivorship estate.

## Decision

- The Supreme Court of Virginia reversed the decree sustaining demurrers and dismissing the complaint as to the 0.542-acre tract.
- The court held the 1928 deed’s wording did not manifest an intent to create survivorship as required by Va. Code § 55-21, so survivorship was abolished by Va. Code § 55-20.
- The case was remanded for further proceedings consistent with the court’s construction of the deed and statutes.

## Legal Principles

- Va. Code § 55-20 abolishes the common-law incident of survivorship between joint tenants unless saved by statute.
- Va. Code § 55-21 permits survivorship only when the instrument makes the intent for survivorship manifest.
- Language stating grantees take “as joint tenants, and not as tenants in common,” without express survivorship terms, is insufficient to create a survivorship estate.
- To create survivorship, the conveyance must contain clear language indicating that the deceased tenant’s share passes to the survivor (for example, by using “survivorship” or an equivalent explicit transfer-on-death clause).
- When survivorship is not created, each co-owner holds a divisible interest that passes at death to heirs or devisees rather than automatically to the other co-owner.

## Conclusion

Because the deed did not expressly provide for survivorship, the statutory abolition of survivorship controlled, leaving Add’s interest to pass through intestate succession and preventing Bessie from conveying more than her own share; the trial court’s dismissal was reversed and the matter remanded.


Hoover v. Smith, 444 S.E.2d 546 (Va. 1994)