Full question:
I'm trying to find the definition that the state of maryland gives to tenants in common. Please direct me. It would be good if you had a case.
- Category: Real Property
- Subcategory: Joint Tenants
- Date:
- State: Virginia
Answer:
Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.
Tenancy in common is another form of co-ownership of property that can exist between any two or more persons. Tenancy in common can be created by deed, will, or by law. Tenants in common, like joint tenants, must act together to decide how they are going to enjoy and use the property. Problems about the management and improvement of the property, and how the income stream is to be divided, can exist. A distinguishing characteristic is that there is no right of survivorship. Each tenant can dispose of their separate and distinct, yet undesignated, interest in the property in any way they choose.
Each co-owner can sell it or give it away. They can direct its eventual disposition by last will and testament, or they can ignore the problem. Each co-owner’s property will be distributed, when they die, according to the law of property descent and distribution. Several of the more important characteristics of a tenancy in common are:
1. Each tenant in common has the power to dispose of their separate and distinct, yet undesignated interest, in whatever property is involved, any way they choose.
2. When a co-owner dies, their interest does not pass to the surviving tenant-in-common. It passes to the surviving co-owner spouse, or to some other person or party, but only if the property owner so indicates his wishes in his last will and testament. Otherwise, the property passes under the laws of intestacy.
Please see the following MD case law:
Maryland Court of Appeals Reports
HELINSKI v. HARFORD MEMORIAL HOSPITAL, INC., 376 Md. 606 (2003)
831 A.2d 40
GAIL LYNN HELINSKI and MARK P. MUELLER v. HARFORD MEMORIAL HOSPITAL, INC.
No. 133, September 2002.
Court of Appeals of Maryland.
Filed: August 27, 2003.
Certiorari to the Circuit Court for Harford County, Thomas E. Marshall,
Judge.
Page 607
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN
OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Page 608
Stanley A. Snyder and Randolph C. Baker (Margolis, Pritzker &
Epstein, P.A., on brief) of Towson, Md., for petitioners.
Page 609
Kevin T. Olszewski of Bel Air, Md., for respondent.
Argued before Bell, C.J., Eldridge, Raker, Wilner, Cathell, Harrell,
Battaglia, JJ.
Opinion by Harrell, J.
On 2 October 2001, Harford Memorial Hospital, Inc. ("Respondent")
obtained a judgment in the District Court of Maryland, sitting in Harford
County, against Constance Helinski ("Judgment Debtor") for a personal
debt in the amount of $4,727.53, plus costs and attorneys' fees. On 8
November 2001, Respondent filed a Notice of Lien in the Circuit Court for
Harford County and, on 13 November 2001, filed a Request for Writ of
Execution with respect to certain improved real property in Harford
County owned as joint tenants by the Judgment Debtor and the
Petitioners, Gail Helinski and Mark P. Mueller. The writ was issued by
the Clerk's office on 20 November 2001, but the Judgment Debtor died in
late December before the Sheriff executed on the writ. Contending that
the property was transferred to them by operation of law at the
decedent's death free and clear of the judgment lien against Constance
Helinski, Petitioners filed in the District Court a Motion to Release the
Property from Levy, which was denied. Petitioners then appealed the
judgment to the Circuit Court for Harford County, which affirmed the
denial by the District Court of Petitioners' motion. We granted
certiorari on Petitioners' initiative to determine, because Maryland law
requires a joint tenancy with rights of survivorship to be severed before
the interest of one joint tenant can be levied upon, whether such a
severance occurred on the facts of this case. 373 Md. 406, 818 A.2d 1105
(2003). We conclude that a severance did not occur here prior to the
Judgment Debtor's demise. Thus, we shall reverse the judgment of the
Circuit Court.
I.
The facts are undisputed. Prior to the Judgment Debtor's death,
Petitioners and the Judgment Debtor owned improved
Page 610
property in Forest Hill, Maryland (the "Property") as joint tenants,
with rights of survivorship. Respondent's judgment against Constance
Helinski, obtained on 2 October 2001, was for a personal debt in the
amount of $4,727.53 plus costs and attorneys' fees. A Notice of Lien
as to the judgment was recorded in the Circuit Court. Next, Respondent
filed a Request for Writ of Execution with respect to the Property on
13 November 2001, which was issued and delivered to the Sheriff on 20
November 2001.
A little over a month later, on 27 December 2001, Constance Helinski
died. Three weeks later, on 17 January 2002, the Sheriff went to the
Property and served a copy of the Writ of Execution upon Gail Helinski
and Mark P. Mueller, the Petitioners in the present case, and learned for
the first time of Constance Helinski's passing. The sheriff wrote on his
return "mortuus est" as to the Judgment Debtor.
It is undisputed that the Sheriff failed on 17 January 2002 to post "a
copy of the writ and the schedule in a prominent place on the property,"
as required by Rule 3-642(a).[fn1] The record also indicates that he
failed to furnish a copy of the schedule to the surviving Ms. Helinski or
Mr. Mueller, who were in possession of the Property, as required by
Maryland Rule 3-642(a).[fn2]
Petitioners filed a Motion to Release the Property from Levy, together
with a Request for Hearing, in the District
Page 611
Court, contending that, because the Judgment Debtor died before the
Sheriff executed the writ against the Property, her individual interest
in the Property died with her. Consequently, they argued, as surviving
joint tenants, that they owned the Property free and clear of any
judgment lien against the late Ms. Helinski. The District Court
disagreed and ruled in favor of the Respondent, finding that the date
of execution of the writ related back to the date that the Sheriff
received the writ. As that date, 20 November 2001, preceded the
Judgment Debtor's demise on 27 December 2001, the court determined
the writ reached her interest in the property.
Petitioners appealed to the Circuit Court, which affirmed the District
Court's ruling that the date of execution relates back to the date that
the Sheriff received the writ. The Circuit Court, in addition to agreeing
with the relation back reasoning of the District Court, also looked to
the language of Maryland Rule 3-641(c),[fn3], requiring the Sheriff to
"endorse on the writ the exact hour and date of its receipt and maintain
a record of actions taken pursuant to it." From this the court discerned
that the moment of receipt is key in determining at what point a writ is
executed.
II.
A.
Petitioners first note the fundamental premise that a joint tenancy
must be severed in order for a judgment creditor to
Page 612
attach the interest of an individual joint tenant. Petitioners maintain
that an individual judgment debtor's interest is severed when a judgment
creditor executes against the judgment debtor's interest in real property
while he or she is living. Once the judgment debtor has died, however,
there is no longer an interest in the real property upon which to levy.
On the facts of the present case, Petitioners contend that the mere
delivery of the Writ of Execution to the Sheriff did not sever the joint
tenancy or create a lien on the Property. Because the Sheriff did not
attempt to execute the writ until after the death of the Judgment
Debtor, they claim that there was no pre-mortem severance of the joint
tenancy and thus no property interest to which the lien could attach when
ultimately executed. As the interest of one joint tenant passes to the
other joint tenant or tenants at his or her death as a matter of law,
Petitioners ultimately posit that they acquired the Judgment Debtor's
interest in the Property at her death and that, from that moment
forward, the Judgment Debtor held no interest to which Respondent's lien
later could attach.
Petitioners support their argument by citing, inter alia, Eder v.
Rothamel, holding that "a judgment lien, without levy or execution on the
judgment, does not sever a joint tenancy or prevent the interest of the
judgment debtor from passing to or ripening in the surviving co-tenants,
free of lien." 202 Md. 189, 193, 95 A.2d 860, 862 (1953).
Petitioners also direct our attention to various cases of our sister
states purporting to hold that something more than a judgment lien is
necessary to sever a joint tenancy. Recognizing that these cases are not
binding on this Court, Petitioners argue that these cases nonetheless
merit our favorable consideration. See, e.g., Grothe v. Cortlandt Corp.,
11 Cal.App.4th 1313 (1992) (lien does not sever joint tenancy);
People's Trust & Savings Bank v. Haas, 328 Ill. 468, 160 N.E. 85
(Ill. 1927) (judgment alone does not sever joint tenancy); Van Antwerp v.
Horan, 390 Ill. 449, 61 N.E.2d 358 (Ill. 1945) (levy does not transfer
possession of real property to the sheriff and therefore does not sever
a joint tenancy); Knibb v. Security Ins.
Page 613
Co., 121 R.I. 406, 399 A.2d 1214 (R.I. 1979) (judicial sale
of real property is necessary to sever joint tenancy).
B.
Respondent concedes, as it must, that a joint tenancy first must be
severed in order to levy upon one joint tenant's interest in the
Property; however, it contends in the present case that a severance
occurred at the moment the Sheriff received the Writ of Execution from
the Clerk's office. Accordingly, Respondent claims that the Property was
levied upon properly when the Sheriff received the writ nearly a month
before the Judgment Debtor died. Respondent argues that an inchoate lien
was created when the Sheriff received the writ, and that the date of
execution of the writ "relates back" to 20 November 2001, provided that
the Sheriff perfected the writ within the statutory period by executing
it. Respondent urges us to adopt the following policy rationale for
implementing such a "writ in the mitt" rule: The effective execution of a
writ is not dependent on actual delivery to that person or posting on the
property because the "modern" sheriff plays only a ministerial role in
transmitting the writ to the owner of the interest in the property.
Adoption of his policy, Respondent contends, would eliminate the harm
befalling a creditor who files first, but whose interest is levied last
by the Sheriff. Such a policy also would reduce the incentive for a
creditor to offer inducements and cajolery to sheriffs to execute its
writs first.
Respondent directs our attention to American Security & Trust Co.
v. New Amsterdam Casualty Co. to support its argument that the date of
the levy relates back to the date the writ was delivered to the Sheriff.
246 Md. 36, 40, 227 A.2d 214, 215 (1967). In American Security, the
sheriff took possession of an automobile in execution of a writ he
received a month before. In upholding the sheriff's sale of the
automobile to satisfy a judgment debt, despite the fact that it had been
used to secure a loan to its owner during the period between delivery and
execution of the writ, this Court held that "the lien of an execution has
as its effective date, not the
Page 614
day on which the levy was actually made, but the day on which the
writ . . . was delivered to the sheriff." Id. In this manner, the
Court explained, the claims of competing creditors could be prioritized
according to the date the sheriff received the writ. Id.
C.
In response, Petitioners attempt to distinguish a levy on personal
property from a levy on real property as a means to discredit Respondent's
"relation back" argument. Petitioners assert that American Security is
not analogous to the instant case because real property is treated
differently than personal property for such purposes in Maryland.
Petitioner notes that our precedents hold that, for real property, the
delivery of the writ to the sheriff, without any further action to
execute it, is insufficient to levy on real property. Rothamel, 202 Md.
at 195, 95 A.2d at 863. Petitioners also assert that the "relation back"
concept exists, if at all, to prioritize claims among competing
creditors, and thus is inapposite to the case of a single creditor, as
here.
III.
On appellate review, the Court of Appeals may set aside the judgment of
the lower court based on the factual findings of the lower court only
when those findings are clearly erroneous. Maryland Rule 8-131(c).[fn4]
The legal analysis of the lower court, however, enjoys no deferential
appellate review. The Court of Appeals must apply the law as it discerns
it to be. Heat & Power Corp. v. Air Products & Chemicals, Inc.,
320 Md. 584, 591, 578 A.2d 1202, 1205 (1990).
Page 615
The issue before the Court in the present case falls under the latter
standard of review.
A.
Although many states have abolished it entirely, Maryland continues to
recognize by statute the joint tenancy form of real property ownership.
Maryland Code (1974, 2003 Repl. Vol.), Real Property Article, §
2-117.[fn5] A joint tenancy is distinguished by the
"four unities." In order for a joint tenancy to exist, the owners of
the property must share unity of time, title, interest, and possession.
Rothamel, 202 Md. at 192, 95 A.2d at 862. The unities must exist
concurrently; if any one is missing, the estate cannot be one of joint
tenancy. Id. We will consider the requirements of the four unities at
greater length infra.
1.
In Eastern Shore Bldg. and Loan Corp. v. Bank of Somerset, we addressed
the question of whether a joint tenancy must be severed in order for a
lien to attach to the interest of an individual joint tenant. 253 Md. 525,
253 A.2d 367 (1969). In Eastern Shore, a judgment was entered against one
joint tenant's interest in real property to satisfy a judgment against
him for defaulting on a bank loan. The joint tenants then sold the
property. The bank subsequently obtained a writ of fieri facias to direct
the sheriff to levy on the property in order to collect on the debt the
joint tenant owed. In finding that there was no time at which the
debtor-joint tenant's interest in the property was severed from that of
the other joint tenant, we held that his interest could not have been
levied upon. 253 Md. at 531, 253 A.2d at 371. We held further that joint
Page 616
tenants hold per my et per tout,[fn6] and that "the nature of the tenancy
is such that the judgment lien cannot attach to the estate in joint
tenancy until after the severance and the creation of a separate estate
in title and possession to which the judgment lien can then attach." Id.
(citing Alexander v. Boyer, 253 Md. 511, 253 A.2d 359 (1969) (emphasis in
original)). We concluded that
there was no execution by the judgment creditor prior
to the conveyance by the joint tenants, nor was there
any contract of sale or lease by one joint tenant or
other action. . .which might possibly result in a
severance of the joint tenancy prior to the
conveyance. That conveyance, it is true, terminated
the joint tenancy, but simultaneously with the
conveyance, title to the subject property vested in
the grantees in fee simple. There was never a time,
therefore, that Otho and William [the joint tenants]
ever held title to the subject property as tenants in
common so that there was no estate in the land which
Otho [the debtor-joint tenant], alone, held in
severalty to which the lien of a judgment against him
alone could attach.
253 Md. at 531, 253 A.2d at 370-71 (emphasis added). Without severance of
the joint tenancy, there is no individual interest of a joint tenant to
which a judgment lien may attach. Severance of a joint tenancy therefore
is required in order for a judgment creditor to levy on the interest of
an individual joint tenant.
2.
Severance of a joint tenancy occurs when one of the four unities of
time, title, interest, and possession ceases to exist. Rothamel, 202 Md.
at 192, 95 A.2d at 862. This may happen voluntarily (e.g., through
conveyance by one of the joint tenants) or involuntarily (e.g., by court
partition). Id.When a joint tenancy is severed, the co-tenants become
tenants in common. Id.
Page 617
Recognition of the moment at which one of the unities is destroyed,
thereby severing a joint tenancy, varies by jurisdiction. As we
recognized in Rothamel, however, "[t]here is complete agreement. . .in
all jurisdictions that (a) the levy and completed sale in execution does
sever the joint tenancy, and (b) the mere obtention or docketing of a
judgment lien does not operate to sever the joint tenancy." 202 Md. at
193, 95 A.2d at 862. We observed that "the general rule that a judgment
lien will not sever the tenancy is consistent with the common law theory
that the mere creation of a lien or charge upon the property would not
diminish or affect any unity or a joint tenancy." 202 Md. at 195, 95 A.2d
at 863. We also noted that "[i]n every reported case, it has been held
that a judgment lien, without levy or execution on the judgment, does not
sever a joint tenancy or prevent the interest of the judgment debtor from
passing to or ripening in the surviving co-tenants, free of lien." Id.
In Rothamel, the plaintiff-creditor obtained a judgment against a
debtor-joint tenant, who then died before execution of the judgment. 202
Md. at 190, 95 A.2d at 861. The surviving joint tenants then conveyed the
property to a third party, and the plaintiff sued both the estate of the
late joint tenant and the new owners of the property to recover the
judgment debt. Id. In holding that a judgment lien alone does not sever a
joint tenancy because it does not interfere with any of the four
unities, we opined that the lien must be executed within the lifetime of
the judgment debtor in order for the judgment creditor to levy on the
property. 202 Md. at 195, 95 A.2d at 863. Because the lien had not been so
executed, the unities remained intact, and the joint tenancy was not
severed. The surviving joint tenants thus rightly conveyed their interest
in the property to the third party free of the lien. Id. Applying that
reasoning to the present case, the writ at least must be executed
actually in order to sever a joint tenancy; mere delivery of the writ to
the sheriff, unless the date of execution relates back to the date of
delivery, is not sufficient to sever the joint tenancy.
Page 618
3.
We are of the view that the mere delivery of the Writ of Execution to
the Sheriff did not interfere with any of the four unities and thus did
not sever the joint tenancy in the present case. There is nothing in the
record which indicates that the unities of time and title were affected
by delivery of the writ to the Sheriff. By definition, the unity of time
means that the joint tenants held title to the Property at the same
moment. Delivery of the writ to the Sheriff would have had no effect on
that unity. Likewise, as the unity of title requires that joint tenants
acquire and hold title to the property by the same conveyance, delivery
of the writ to the Sheriff would not have altered the fact that the
Petitioners and the Judgment Debtor acquired and held title to the
Property by the same instrument.
Delivery of the writ to the Sheriff also did not interfere with the
unity of interest. As Petitioners point out, the Supreme Court of Rhode
Island held that even a levy on real property is not enough to sever a
joint tenancy, and that an actual sale must occur in order to destroy the
unity of interest. Knibb v. Security Insurance Co. of New Haven,
121 R.I. 406, 411, 399 A.2d 1214, 1217 (1979). There, the Supreme Court
of Rhode Island concluded that an estate held in joint tenancy was not
severed by a levy of execution against one tenant's undivided half
interest in the property to satisfy a judgment against that tenant, and
that, after that joint tenant's death, the property passed to the
surviving joint tenant free of the judgment. Id.Because no judicial sale
had occurred prior to the death of the decedent, the court found that the
defendant-judgment creditor's lien on the property constituted a mere
"expectation of title" and that this expectation did nothing to alter the
interest of either the decedent or the surviving joint tenant. 121 R.I.
at 411-12, 399 A.2d at 1217. Finding that none of the unities was
destroyed prior to the death of one joint tenant, the court held that the
joint tenancy was not severed by the levy alone, and that a judicial sale
was necessary to destroy the unity of interest and sever the joint
tenancy. Id.
Page 619
We agree with the logic of the Supreme Court of Rhode Island (though in
the present case we need not go as far as that court did in
application), and hold that the delivery of the writ to the Sheriff did
not interfere with the interest of the Petitioners and the Judgment
Debtor in the Property. In the case of real property, a writ of execution
functions as an instruction to the sheriff to go to the property in
question and inform its inhabitants that it will be sold to satisfy a
judgment owed. By going to the property and delivering such notice, the
sheriff executes the writ and levies on the property, formally attaching
it for sale at a later date. It is difficult to see how simply
instructing the sheriff to tell the owners of a piece of real property
that their land will be sold to satisfy a judgment against one of the
owners interferes with the interest the owners currently have in the
property. Until the property is actually sold, the landowners interest in
the property does not change. Due to the fact that, in the present case,
the Sheriff received the writ but did not execute it before the death of
the Judgment Debtor, we conclude that certainly there was no interference
with the interest of either the Judgment Debtor or the Petitioners in the
Property. We are not called upon to decide today whether a different
result would obtain had the Sheriff executed the writ before the Judgment
Debtor's death.
We also conclude that delivery of the writ to the Sheriff had no effect
on the Judgment Debtor's possession of the Property. This Court
repeatedly has held that, for personal property, delivery of a writ of
execution to the sheriff constitutes a levy and is sufficient to place
the goods in question in the virtual custody of the law. American
Security and Trust Co. v. New Amsterdam Casualty Co., 246 Md. 36, 39,
227 A.2d 214, 216 (1967). Likewise, we have held that, for personal
property, "the time of the levy. . .is not controlling, but the time of
the delivery of the writ to the Constable is crucial." Harris v. Kohner,
Inc., 230 Md. 349, 354, 187 A.2d 97, 100 (1963).
Page 620
We believe, however, that the nature of real property is
distinguishable from that of personalty in this regard, and that the mere
delivery of the writ to the sheriff does not interfere with a joint
tenant's possession of real property. As the California Court of Appeal
observed, the levy of personal property constitutes a physical seizure of
the goods. Grothe v. Cortlandt Corporation, 11 Cal.App. 1313, 1321
15 Cal.Rptr.2d 38 (1992). In Grothe, the court held that where the
judgment debtor-joint tenant died after a judgment creditor's levy on his
real property, but before a judicial sale occurred, none of the four
unities was destroyed and the joint tenancy was not severed. The court
distinguished a levy of personal property, which involves actual seizure,
noting that an actual seizure clearly interferes with the owner's
possession of the property. 11 Cal.App. at 1321, 15 Cal.Rptr.2d 38.
By contrast, a levy of real property denotes the setting aside of property
to be taken or sold at a later date and does nothing to interfere with
the owner's current possession. 11 Cal.App. at 1320, 15 Cal.Rptr.2d 38.
Consequently, the court decided that "the `levy,' as opposed to the
ultimate sale of the property, does not destroy the unities any more than
any other kind of lien against a specific property." 11 Cal.App. at 1321,
15Ca.Rptr.2d 38.
We agree with the Grothe court's analysis and hold that the delivery of
the writ does not destroy the unity of possession. During the period
between 20 November 2001, when the Sheriff received the writ, and 17
January 2002, when he went to the Property and attempted to execute on
the writ, there was no interference with either the Judgment Debtor's or
the Petitioners' possession of the Property. Both the Judgment Debtor and
the Petitioners remained in actual possession of the land and retained
all of the rights with respect to the Property that land ownership
implies. When the Judgment Debtor died, her interest in the Property
passed to the surviving joint tenants, with whose possession of the
Property the sheriff did not attempt to interfere until he arrived on 17
January 2002 to attempt to levy on the Property. We conclude
Page 621
that the unity of possession was not destroyed by the delivery of the
writ to the Sheriff.
IV.
Ultimately, we hold that upon the death of the Judgment Debtor, her
estate passed to the Petitioners, the surviving joint tenants, free of
Respondent's lien. At least one of the four unities must be destroyed in
order to sever a joint tenancy, but no such destruction occurred here
until the Judgment Debtor died. Mere delivery of the Writ of Execution to
the Sheriff did not interfere with the unities of time, title, interest,
or possession, and thus may not be said to have severed the joint
tenancy.
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY REVERSED; CASE
REMANDED TO THAT COURT WITH DIRECTIONS THAT IT REVERSE THE JUDGMENT
OF THE DISTRICT COURT OF MARYLAND, SITTING IN HARFORD COUNTY, AND REMAND
THE CASE TO THAT COURT WITH DIRECTIONS TO GRANT PETITIONERS' MOTION TO
RELEASE PROPERTY FROM LEVY; COSTS TO BE PAID BY RESPONDENT.
[fn1] Maryland Rule 3-642(a) provides: Levy upon real property. Except
as otherwise provided by law, the sheriff shall levy upon a judgment
debtor's interest in real property pursuant to a writ of execution by
entering a description of the property upon a schedule and by posting a
copy of the writ and the schedule in a prominent place on the
property.
[fn2] Maryland Rule 3-642(d) provides: Notice of Levy. The sheriff shall
furnish a copy of the writ of execution and schedule to any person found
by the sheriff to be in possession of the property, and, if that person
is not the judgment debtor, the sheriff shall promptly mail a copy of the
writ and schedule to the judgment debtor's last known address.
[fn3] Maryland Rule 3-641(c) provides:
Transmittal to sheriff; bond. Upon issuing a writ
of execution or receiving one from the clerk of
another county, the clerk shall deliver the writ
and instructions to the sheriff. The sheriff shall
endorse on the writ the exact hour and date of its
receipt and shall maintain a record of actions taken
pursuant to it. If the instructions direct the
sheriff to remove the property from the premises
where found or to exclude others from access to or
use of the property, the sheriff may require the
judgment creditor to file with the sheriff a bond
with security approved by the sheriff for the payment
of any expenses that may be incurred by the sheriff
in complying with the writ.
[fn4] Maryland Rule 8-131(c) provides: Action tried without a jury. When
an action has been tried without a jury, the appellate court will review
the case on both the law and the evidence. It will not set aside the
judgment of the trial court on the evidence unless clearly erroneous, and
will give due regard to the opportunity of the trial court to judge the
credibility of the witnesses.
[fn5] Maryland Code (1974, 2003 Repl. Vol.), Real Property Article, 2-117
provides: Presumption against joint tenancy. No deed, will, or other
written instrument which affects land or personal property, creates an
estate in joint tenancy, unless the deed, will, or other written
instrument expressly provides that the property granted is to be held in
joint tenancy.
[fn6] "by the half and by the whole"
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