WILLIAM DANYLEIKO and CHRISTINE DANYLEIKO vs. NICHOLAS DANYLEIKO and LENA DANYLEIKO.

This is a petition filed pursuant to G. L. c. 185, §114 seeking the issuance of a new certificate of title to registered land. Respondents, who also have certain rights in the property, have challenged the interest in the land claimed by petitioners.

Petitioners William Danyleiko and Christine Danyleiko, who are husband and wife, allege that William Danyleiko is an owner of a one-half interest in realty described in Certificate of Title No. 4773, recorded in Middle Registry District of Berkshire County, Book 21, Page 419; that on June 5, 1975, petitioner William Danyleiko conveyed his one-half interest in the realty to himself and his wife, petitioner Christine Danyleiko, with petitioners to hold the interest as tenants by the entirety. Petitioners also state that they recorded the deed of conveyance on June 6, 1975, in the Middle Registry District of Berkshire County. They ask this Court to issue a certificate of title declaring that they own an undivided one-half interest in the land as tenants by the entirety.

Respondents admit most of petitioners' allegations, but claim that petitioner William Danyleiko could not legally convey his one-half interest in the property.

The parties have agreed that there are no contested issues of fact in this dispute, although they were unable to submit an agreed stipulation of facts. Neither side filed a formal motion for summary judgment, but that is essentially the basis upon which they have asked the Court to dispose of this case. Accordingly, this Court will apply its rulings of law to facts drawn from the pleadings, briefs, and documentary evidence submitted by the parties.

Mary Danyleiko, who was the mother of petitioner William Danyleiko and respondent Nicholas Danyleiko, died testate at Pittsfield, Massachusetts on January 30, 1967. At the time of her death, she was the sole owner of the land which is the subject of this dispute. The land was devised by the following provision in her will:

"All the rest and residue of my estate of every kind and description, both real and personal, wherever located, now or hereafter owned or held by me, I give, bequeath and devise in the following manner:-

One undivided half interest to NICHOLAS DANYLEIKO and LENA DANYLEIKO, husband and wife, as Tenants by the Entirety; and

One undivided half interest to WILLIAM DANYLEIKO; the said William Danyleiko and the said Nicholas and Lena Danyleiko to hold their respective undivided half interests as joint tenants and not as tenants in common; the intention here being to create a joint tenancy, one-half to William Danyleiko and the other half to Nicholas and Lena Danyleiko, husband and wife, as tenants by the entirety.

Each owner of each undivided half shall be entitled to the occupancy and possession and/or rentals of one-half of the premises, and none of the joint tenants shall have the exclusive right of possession of the whole as against any of the other joint tenants.

The cost of maintenance and repair and improvements if required, including but not limited to taxes, interest and/or principal, insurance, repairs, outside painting, shall be apportioned between the respective joint tenancies.

Respondents claim that this provision should be construed to prohibit any conveyance of the land by William Danyleiko. We disagree. Respondents' principal argument is that clause 7 of the will is ambiguous, which ambiguity should allow this Court to consider extrinsic evidence of testatrix intention to prevent any conveyance by devisees of their interests in the land. Respondents claim specifically that it was inconsistent for testatrix to describe devisees as "joint tenants," and then to add that each owner of each undivided one-half interest shall be entitled to occupancy of one-half the land, and that the cost of maintenance, repair, and taxes shall be apportioned between them. This allocation of rights and duties appears to this Court to be no more than a simple restatement of the law with respect to joint tenancies. See generally W. Busby, Real Property §97 (1965). Even if there were a question as to whether the testatrix had attempted in clause 7 to impose extraordinary conditions on the use and maintenance of the land, extrinsic evidence could be submitted solely on that issue. Parol evidence is admissible only to clarify ambiguous language appearing in the will. Hyatt v. Jurczyk, 368 F. 2d. 546 (1st Cir. 1966).

Since the will makes absolutely no reference to future conveyances by the owners, no evidence may be submitted relative to the testatrix' unexpressed wish in this matter. Walton v. Draper, 206 Mass. 20 (1910). This issue must therefore be controlled exclusively by the common law of joint tenancies.

A joint tenant always may terminate the joint tenancy by transfer or conveyance of his interest. Attorney General v. Clark, 222 Mass. 291 (1915). Respondents argue that William Danyleiko's conveyance of his interest to himself and his wife does not destroy the joint tenancy because his status, as the husband in a tenancy by the entirety, is identical to his previous status as a fee simple owner. This is not true as a matter of law. Although he retains exclusive right to possession and control of the premises, his wife acquired a survivorship interest in the property which cannot be defeated by any act of the husband without her consent. Pineo v. White, 320 Mass. 487 (1946). The joint tenancy was therefore converted into a tenancy in common.

The conveyance by William Danyleiko to himself and his wife as tenants by the entirety was valid. A new Certificate of Title shall be issued stating that the land is owned by Nicholas Danyleiko and Lena Danyleiko, Husband and Wife, tenants by the entirety, as to one moiety, and to William Danyleiko and Christine Danyleiko, Husband and Wife, tenants by the entirety, as to one moiety, each moiety to be held as a tenancy in common with the other.

Judgment accordingly.