## Facts

- Ernest J. Smith, Sr. (Husband) and Joanne Rucker (Wife) married in June 2000.
- Wife owned a home and surrounding land before the marriage.
- On August 17, 2000, Wife executed and delivered a deed conveying to Husband a one-half interest in the property.
- The deed’s granting clause conveyed the property to Husband and Wife “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,” and also referenced “every contingent remainder and right of reversion.”
- The habendum clause used similar joint-life and survivor language.
- The deed did not use the statutory wording that the grantees take “as joint tenants with rights of survivorship, and not as tenants in common.”
- After a family dispute and Husband’s incapacity, Husband’s son acted on Husband’s behalf and pursued a partition action.
- The matter was referred to a master-in-equity, who granted summary judgment for Husband, ruling the deed created a joint tenancy with right of survivorship and that the property could be partitioned.
- Wife appealed, arguing the deed instead created life estates as tenants in common with a survivorship remainder, making the survivorship feature not subject to defeat by partition.

## Issues

1. Whether deed language granting property to two spouses “for and during their joint lives and upon the death of either of them, then to the survivor” creates a joint tenancy with right of survivorship or a tenancy in common for life with survivorship rights that cannot be defeated during the parties’ lifetimes.
2. Whether a deed can create a joint tenancy with right of survivorship without using the exact statutory phrase “as joint tenants with rights of survivorship, and not as tenants in common.”
3. If the deed created a joint tenancy with right of survivorship, whether either cotenant may compel partition under South Carolina law.

## Decision

- The South Carolina Court of Appeals affirmed the master-in-equity’s summary judgment order.
- The court held the deed created a joint tenancy with rights of survivorship, even though it did not recite the statutory “joint tenants … and not as tenants in common” formula.
- Because the estate was a joint tenancy, it was a cotenancy subject to partition at the request of either owner under South Carolina’s partition statute.

## Legal Principles

- When a conveyance is ambiguous, South Carolina favors a tenancy in common unless the instrument clearly shows an intent to create another form of concurrent ownership.
- South Carolina Code § 27-7-40 states that a joint tenancy with right of survivorship is “conclusively established” by a deed using the statutory phrase “as joint tenants with rights of survivorship, and not as tenants in common.”
- The statutory phrase is not the only way to create a joint tenancy with right of survivorship; a deed may do so through other clear language showing survivorship tied to joint ownership.
- A joint tenancy generally requires the four unities (time, title, interest, and possession) and carries a right of survivorship that can be destroyed by severance.
- Under South Carolina Code § 15-61-10, property held in cotenancy (including a joint tenancy) may be partitioned upon the request of a cotenant.
- By contrast, if a deed creates life estates as tenants in common with contingent remainders to the survivor, the survivorship feature is not defeated by a unilateral act such as partition during the joint lives.

## Conclusion

The Court of Appeals concluded that the deed’s joint-life and survivor language created a joint tenancy with right of survivorship despite the absence of the exact statutory words, and because joint tenancies are subject to severance and partition, either spouse could seek partition of the property under South Carolina law.


Smith v. Rucker, 593 S.E.2d 497 (2004)