Wagenschein v. Ehlinger, 581 S.W.3d 851 (Tex. App.—Corpus Christi-Edinburg 2019, pet. filed).


Tenancy in Common vs. Joint Tenancy

A dispute arose over the interpretation of a deed which contained the following language:


THERE IS HEREBY RESERVED AND EXCEPTED from this conveyance for Grantors and the survivor of Grantors, a reservation until the survivor’s death . . . . The reservation contained in this paragraph will continue until the death of the last survivor of the seven (7) individuals referred to as Grantors in this deed.


Does “survivor” refer to which of the seven grantors outlives the other grantors or does it refer to the grantor’s heirs as being the beneficiaries of the reservation?


Both the trial and appellate court held that the deed referred to the survivor of the actual grantors and not to their surviving heirs. Although the deed also contained the phrase “grantor’s successors,” reading the deed as a whole, this phrase referred to the surviving grantors and not the grantor’s heirs. According, the deed reserved a joint tenancy with right of survivorship in the seven original grantors.


Note that although this case involved a deed, the same logic would apply to language in other granting documents such as wills and trusts. See Tex. Est. Code §§ 101.002 & 111.001(a).


Moral:  Careful drafting of granting documents is necessary to be consistent with how terms are used to eliminate any debate as to whether a tenancy in common or a joint tenancy with survivorship rights is created.