Morgan v. Cornell, — So.2d —-, 2006 WL 2987107, 31 Fla. L. Weekly D2632 (Fla. 2d DCA Oct 20, 2006)

Estate planning and probate litigation are two sides of the same coin.  The planner needs to understand the underlying substantive property rights being conveyed and how to draft documents that accurately describe what those property rights are and to whom they are being conveyed.  In the event of a dispute, the litigator needs to understand the same: what are the underlying substantive property rights being disputed and does the operative document effectuate a legally enforceable conveyance.

That’s why this case is equally instructive to the planner and the litigator.  The litigation revolved around whether the decedent had validly devised a life estate in two properties he owned as tenants-in-common with his girlfriend.  The properties at issue were a home in Naples, Florida and a second home in New Hampshire (i.e., the amount in controversy likely exceeded seven figures).  The decedent’s children argued — and won at the probate-court level – that the devise was invalid and thus girlfriend got nothing.  Girlfriend argued the opposite . . .  and won where it really counted, before the 2d DCA, which reversed the probate court’s order.

Here’s how the 2d DCA articulated the issue on appeal:

The specific devises at issue state:

If I own the home [in New Hampshire/Florida] at my death, I leave said home and real estate together with the contents therein to Julia H. Morgan for the term of her life, subject to the obligation to pay all real estate taxes, upkeep, insurance and ordinary costs of ownership, with a remainder interest in fee simple as Tenants in Common to her children ···, per stirpes.


The personal representative of Mr. Cornell’s estate, his daughter Elizabeth L. Cornell, filed a petition seeking construction of these conditional devises, alleging that the condition-“If I own the home”-is unclear in extent, nature, and meaning. On one hand, the word “own” could be read to mean “to the extent I own the home,” so that the specific devises would be effective for whatever interest the testator possessed at his death. On the other hand, the word “own” could be interpreted more strictly, so that the condition would be fulfilled only if the testator were the sole owner of each home at the time of his death. If the second interpretation were operative, the condition would fail and the testator’s interest in the homes would become part of the residuary estate and pass to his three children.

The 2d DCA rejected the children’s interpretation — and the probate court’s order — by holding that the word "ownership" was a broad enough term to encompass a tenants-in-common interest.  This is the part of the 2d DCA’s opinion that is most instructive to future planners/drafters and litigators because it articulates in clear, unambiguous language what a "tenants-in-common" interest is and how it can be devised:

The parties in this case agree that Mr. Cornell and Ms. Morgan owned the real properties as tenants in common. When two persons own property as tenants in common,

A and B each owns in his own name, and of his own right, one-half of Blackacre···· It means that each owns separately one-half of the total ownership···· Each is entitled to share with the other the possession of the whole parcel of land. Each may transfer his undivided one-half interest as he wishes so long as the transfer does not impair the possessory rights of the other tenant in common. Each may transfer his undivided one-half interest by will···· The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel.

Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land & Future Interests 58-59 (1966). The estate of a tenant in common is both inheritable and devisable. Tyler v. Johnson, 61 Fla. 730, 55 So. 870 (1911).

As a tenant in common, Mr. Cornell owned a physically undivided part of each entire parcel in New Hampshire and in Naples. Without question, Mr. Cornell did “own” the property at the time of his death; the ownership condition was fulfilled; and each devise validly passed a life estate in his undivided half interest to Ms. Morgan-just as he intended.