## Facts

- Joanne Rucker Smith owned a residence since 1958.
- After marrying Ernest J. Smith, Sr., she executed a deed (Aug. 17, 2000) conveying him an undivided one-half interest.
- The deed conveyed the property to the spouses “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.”
- Ernest later became incapacitated, and his son acting for him filed an action seeking partition that would have forced a sale.
- When the partition action was filed, the spouses remained married and had taken no action inconsistent with remaining married.

## Issues

1. Whether the deed created (a) a joint tenancy with right of survivorship, subject to severance and partition, or (b) a tenancy in common for life with survivorship interests that cannot be destroyed unilaterally.
2. If the deed created a tenancy in common with survivorship, whether the property was exempt from partition under South Carolina law.

## Decision

- The Supreme Court of South Carolina reversed.
- The Court held the deed created a tenancy in common with a right of survivorship (life estates in common with cross-contingent remainders in fee).
- Because the survivorship interests were not destructible by unilateral action, the estate was not subject to partition.

## Legal Principles

- Deed language granting ownership “for and during their joint lives and upon the death of either of them, then to the survivor” is construed to create life estates as tenants in common with contingent remainder interests in fee in the survivor.
- A statutory joint tenancy with right of survivorship may be defeated by unilateral acts (including conveyance) and is therefore subject to partition.
- A tenancy in common with survivorship interests structured as cross-contingent remainders creates survivorship rights that cannot be destroyed unilaterally and is not subject to partition.
- Courts construe deeds in light of South Carolina’s preference against joint tenancies where the language supports a tenancy in common with survivorship.

## Conclusion

The court classified the spouses’ deed as creating a tenancy in common during their joint lives with contingent remainder interests in fee to the survivor, making the survivorship rights indestructible and preventing partition of the property at the request of one spouse’s representative.


Smith v. Cutler, 623 S.E.2d 644 (S.C. 2005)