ATTORNEY FOR APPELLANT

Arend J. Abel

Cohen & Malad, LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

THOMAS BUNGER, IN HIS CAPACITY AS THE 

PERSONAL REPRESENTATIVE OF THE ESTATE OF

KENNETH K. KINNEY

Scott D. Pankow

Indianapolis, Indiana

_________________________________________________________________________________ 

In the

Indiana Supreme Court

_________________________________

No. 53S01-1703-MI-126

CHERYL L. UNDERWOOD,

Appellant (Plaintiff), 

V.

THOMAS BUNGER, IN HIS CAPACITY AS THE 

PERSONAL REPRESENTATIVE OF THE ESTATE 

OF KENNETH K. KINNEY;JUDITH M. FULFORD;

AND SHEREE DEMMING,

Appellees (Defendants). 

_________________________________

Appeal from the Monroe Circuit Court, No. 53C01-1504-MI-657

The Honorable E. Michael Hoff, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 53A01-1509-MI-1305

_________________________________

March 6, 2017

Slaughter, Justice.

Indiana has a longstanding legal presumption, recognized by statute and at common law, 

that spouses owning real property hold their interests as tenants by the entirety. This presumption, 

which is rebuttable upon a showing the parties intended another form of ownership, applies even 

if the couple owns the property with one or more additional parties. We hold this presumption is 

rebutted on the record before us. The deed conveying the property specifies that the three grantees, 

two of whom are married, shall take the property “all as Tenants-in-Common”. We reverse and 

remand with instructions.
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Factual and Procedural Background

On July 25, 2002, the owner of real property located near the Indiana University campus 

in Bloomington (Property) executed a warranty deed (Deed) to three grantees: Cheryl Underwood, 

Kenneth Kinney, and Judith Fulford. Kinney (Husband), now deceased, and Fulford (Wife) were 

married when the Property was conveyed and remained married at Husband’s death. The Deed’s 

granting clause provides as follows:

MERRILL DAVIS KISSICK, of legal age (“Grantor”), of MONROE 

County, Indiana, CONVEYS AND WARRANTS to CHERYL L. UNDERWOOD, 

of legal age, and KENNETH KINNEY AND JUDITH M. FULFORD, husband and 

wife, all as Tenants-in-Common (“Grantee”), of MONROE County, Indiana, for 

and in consideration of the sum of Ten Dollars ($10.00) and other valuable 

consideration, the receipt of which is acknowledged, the following described real 

estate in MONROE County, Indiana: [Legal Description Omitted]

A dozen years later, in a separate case in June 2014, the Monroe Circuit Court entered a 

six-figure damages judgment against Husband and Underwood, and in favor of Sheree Demming, 

Underwood’s former employer. The judgment for Demming was affirmed on appeal, Bunger v. 

Demming, 40 N.E.3d 887 (Ind. Ct. App. 2015), trans. denied. The Demming Judgment became a 

lien on the Property. Husband subsequently died in November 2014; his estate is represented here 

by Thomas Bunger, the personal representative.

In April 2015, Underwood filed this action, asking the court to partition and sell the 

Property and distribute the proceeds. Underwood argues that she, Husband, and Wife all owned 

the Property as tenants in common and says she no longer wants to own the Property in common 

with Wife and Husband’s Estate. Bunger, on behalf of the Estate, moved to dismiss Underwood’s 

petition under Trial Rule 12(B)(6), arguing her claim fails because it presupposes the Estate has 

an interest in the Property. Demming moved for summary judgment, likewise arguing the Estate 

has no interest in the Property, and that she has a valid, enforceable lien against Underwood’s 

interest.

The trial court agreed with the Estate and Demming and granted their respective motions. 

The court found the Deed to be “clear and unambiguous” in creating “an estate by the entireties as 

to the interest of” Husband and Wife. It also found the marital unit—and then Wife herself (after 
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Husband died)—was a tenant in common with Underwood. Based on these findings, the court held 

that the judgment lien created by the Demming Judgment did not attach to the share of the real 

estate now owned by Wife because the judgment was entered against only Husband. Thus, the 

court concluded that Demming’s lien applied against Underwood’s one-half interest in the 

Property but not Wife’s interest. The court entered a partial final judgment under Trial Rule 54(B), 

from which Underwood appealed.

The Court of Appeals affirmed. Underwood v. Bunger, 52 N.E.3d 829 (Ind. Ct. App. 2016), 

reh’g denied. It, too, rejected Underwood’s argument, concluding that “the deed’s phrase ‘all as 

Tenants-in-Common’ must be balanced against the identification of Kinney and Fulford as 

husband and wife and does not clearly overcome the presumption in favor of tenancies by the 

entirety.” Id. at 833 (citations omitted). Based on this determination, the Court held that Husband’s 

interest in the Property passed directly to Wife upon his death and not to his Estate. Underwood 

sought transfer, which we now grant and reverse.

Standard of Review

The interpretation of a written instrument, including a deed, is generally a question of law

we review de novo. Corn v. Corn, 24 N.E.3d 987, 994 (Ind. Ct. App. 2015), trans. denied. See also

Brown v. Penn Cent. Corp., 510 N.E.2d 641, 643 (Ind. 1987). In construing a deed, we read it as 

a whole, determining “the parties’ intent by the unambiguous language they used, presuming they 

intended each part to have meaning.” Girl Scouts of So. Ill. v. Vincennes Ind. Girls, Inc., 988 

N.E.2d 250, 256 (Ind. 2013) (citation omitted).

Discussion and Decision

We consider, first, whether the Deed is sufficiently clear to overcome the presumption 

that Husband and Wife held their interests in the Property by the entireties. We hold that it is. In 

addition, we address whether Underwood’s petition in the trial court contains a fatal judicial 

admission that estops her from challenging the trial court’s adverse judgment. We conclude it 

does not.
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I. The Deed’s unambiguous statement that the three grantees, including Husband and 

Wife, hold their interests in the Property “all as Tenants-in-Common” overcomes the 

legal presumption favoring a tenancy by the entirety.

Under established Indiana law, a conveyance of real property to spouses presumptively 

creates an estate by the entireties. The presumption can be overcome if the instrument of 

conveyance reflects an intention to create some other form of concurrent ownership. Over the 

years, this common-law rule has been re-enacted by statute on several occasions, including most 

recently in 2002. This latest statute, which applies here, likewise presumes that spouses hold 

interests in realty as tenants by the entirety. The only noteworthy change to the current statute is 

that it relaxes the showing required to overcome the legal presumption of an entireties estate. We 

conclude the Deed’s granting clause defeats the presumption by expressing an intention to create 

a tenancy in common among all three grantees—Underwood, Husband, and Wife.

A. At common law, a conveyance of real property to spouses created an estate by 

the entireties.

Three forms of concurrent ownership of real property have survived from English common 

law to the present: tenancy in common, joint tenancy, and tenancy by the entirety. United States 

v. Craft, 535 U.S. 274, 279 (2002) (citing 1 G. Thompson, Real Property § 4.06(g) (D. Thomas 

ed. 1994)). See also Powell v. Estate of Powell, 14 N.E.3d 46, 48 (Ind. Ct. App. 2014). At common 

law, when real property was conveyed to a husband and wife, their interest in the property was as 

tenants by the entirety, Hadlock v. Gray, 104 Ind. 596, 598, 4 N.E. 167, 168 (1886), and not as 

joint tenants or tenants in common, Chandler v. Cheney, 37 Ind. 391, 410 (1871).

A tenancy by the entirety exists only between spouses and is premised on the legal fiction 

that husband and wife are a single entity. Indiana Dept. of State Revenue v. Union Bank & Trust 

Co., 380 N.E.2d 1279, 1280 (Ind. Ct. App. 1978). Once an entireties estate has vested, each spousal 

tenant “becomes seized of the entire estate, but neither is seized of any divisible part thereof”. 

Kilgore v. Templer, 188 Ind. 675, 682, 125 N.E. 457, 459 (1919). Thus, an entireties estate cannot 

be severed by the unilateral action of one of the tenants. Neither spouse has a separable interest in 

property held by such a tenancy, so a conveyance by just one tenant is insufficient to pass legal 

title. Pension Fund of Disciples of Christ v. Gulley, 226 Ind. 415, 419, 81 N.E.2d 676, 678 (1948). 

An essential trait of this tenancy is that it “devolves upon the surviving spouse the ownership of 

the property in real estate, free and clear of the individual indebtedness of the other spouse.” 
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Whitlock v. Public Service Co. of Ind., 159 N.E.2d 280, 284 (Ind. 1959). When one spouse dies, 

the survivor, “being already seized of the whole, can acquire no new or additional interest” due to 

the survivorship. Kilgore, 188 Ind. at 682, 125 N.E. at 459. Rather, the survivor “holds the entire 

estate, not by virtue of any right which he acquires as survivor, but by virtue of the original grant.” 

Id. (citation omitted).

B. The legal presumption that spouses hold real property as tenants by the 

entirety can be overcome if the parties express or intend a different form of 

estate.

The common-law presumption in favor of an entireties estate for spouses is the default rule. 

But the rule can be defeated by “conditions, limitations, and stipulations in the deed conveying the 

property” showing the grantor intended to convey a different form of ownership. Hadlock, 4 N.E. 

at 168. “Husband and wife, notwithstanding tenancies by entirety exist as they did under the 

common law, may take and hold lands for life, in joint tenancy or in common, if appropriate 

language be expressed in the deed or will creating it[.]” Thornburg v. Wiggins, 135 Ind. 178, 187, 

34 N.E. 999, 1002 (1893). We have held the presumption defeated when the deed presented 

sufficient conditions or limitations, such as a conveyance of land “to Daniel S. Wiggins and Laura 

Belle Wiggins in joint tenancy”. Id. (emphasis added). See also Wilken v. Young, 144 Ind. 1, 3, 

41 N.E. 68, 69 (1895) (defeating presumption when deed granted land to “Samuel Gordon and 

Phoebe Gordon, his wife, in joint tenancy, their heirs and assigns, forever”) (emphasis added); 

Hadlock, 4 N.E. at 168-69 (creating life estate where conveyance made clear that each spouse’s 

share would be devised to his or her heirs upon death of last-surviving spouse).

C. By statute, Indiana adopted the common-law presumption favoring a tenancy 

by the entirety.

The common law prevails in Indiana unless modified or abrogated by statute. New York 

Life Ins. Co. v. Finkelstein, 212 Ind. 155, 159, 8 N.E.2d 598, 599 (1937). Cf. McIntosh v. Melroe 

Co., 729 N.E.2d 972, 977 (Ind. 2000) (“This Court has long recognized the ability of the General 

Assembly to modify or abrogate the common law.”) (citations omitted). Our legislature has never 

repealed the common-law rule governing conveyances of real property to married persons. In 

1807—nine years before statehood—Indiana, while still a Territory, first codified the legal 

presumption that spouses take and hold real property as tenants by the entirety. Thornburg, 135 

Ind. at 183, 34 N.E. at 1000. Since becoming a state, Indiana has reinforced this presumption in a 
6

series of legislative enactments occurring over many years. See, e.g., 1852 Revised Statutes of 

Indiana 233, §§ 7, 8; 1894 Ind. Acts Ann. 163, §§ 3341, 3342; 1914 Ind. Acts Ann. 509-10, 

§§ 3953, 3954; 1943 Ind. Acts 667-68. The legal presumption thus remains intact because “[o]ur 

statute [did] not change[] the common law rule as to the estate created by grants of real estate to 

husband and wife, but, on the contrary ... expressly recognized it.” Davis v. Clark, 26 Ind. 424, 

428 (1866). See also Arnold v. Arnold, 30 Ind. 305, 306 (1868).

During the 1850 constitutional convention, delegates considered the property rights of 

husband and wife but “wisely left the whole question to the legislature.” Chandler, 37 Ind. at 409-

10. The 1851-52 legislature did modify the common law in some respects. For example, it adopted 

the presumption that a joint deed to two or more (unmarried) persons would create a tenancy in 

common and not a joint tenancy, unless the intention to create a joint tenancy were either 

“expressly declared” in the instrument of conveyance or “manifestly” appeared from its tenor. Id.

at 410. But the legislature did not abolish estates by the entireties between spouses. 

[W]hen the legislature provided that husband and wife should not be tenants in 

common, but by entireties, the intention was to guard and protect the rights of the 

wife by depriving the husband of the power to alien or encumber the same without 

her consent and concurrence, or to charge the same with his debts, or to exercise 

sole control, or to enjoy exclusive possession thereof.

Id. at 414.

D. The 2002 statute relaxed the showing required to overcome the presumption.

In the modern era, our legislature in 1993 reaffirmed the common-law presumption but 

said the presumption would be defeated if the written instrument “expressed” a contrary intention 

or made its intention “manifestly” clear: the “contract shall not be construed as creating a tenancy 

in common unless it shall be expressed therein or shall manifestly appear from the tenor of the 

instrument that it was intended to create a tenancy in common.” Ind. Code § 32-4-2-1 (1993) 

(emphasis added).

In 2002, the legislature again reaffirmed the common-law presumption but reduced the 

showing required to overcome it by removing the word “manifestly”: 
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Sec. 1.

* * *

(d) If: 

(1) a contract [to purchase or lease real estate] expressly creates a tenancy 

in common; or

(2) it appears from the tenor of a contract [to purchase or lease real estate] 

that the contract was intended to create a tenancy in common; 

the contract shall be construed to create a tenancy in common.

I.C. § 32-17-3-1(d) (Supp. 2002) (added by Pub. L. No. 2-2002, §2). The 2002 statute applies to 

written contracts where a husband and wife either buy real estate or lease real estate with an option 

to buy. I.C. § 32-17-3-1(a). The statute provides that a written instrument conveying real property 

to a married couple generally creates an estate by the entireties. Id. § 32-17-3-1(b). But the statute’s 

general rule is subject to an exception. The instrument will be construed to create not an estate by 

the entireties but a tenancy in common if it does so “expressly” or if it “appears from the tenor” of 

the instrument that was the parties’ intention. Id. § 32-17-3-1(d). The legislature’s omission of the 

word “manifestly” from the statute indicates a weakening of the showing needed to defeat the 

presumption. 

The 2002 version of the statute—the current version—had been in effect for 25 days when 

the Grantor in this case issued the Deed on July 25, 2002. Thus, we analyze the Deed under the 

current statute.

E. The Deed’s granting clause rebuts the presumption favoring a tenancy by the 

entirety between Husband and Wife.

In applying the current statute, we are mindful of the common-law principles it subsumes, 

including the significant case authority dating to the 19th century that interpret and apply these 

principles. But we also heed the statute’s evolution and its noteworthy revision in 2002 to provide 

that the parties’ intention to create a different form of tenancy no longer need “manifestly” appear 

in the instrument of conveyance. These considerations require that we continue to honor the ageold presumption favoring a tenancy by the entirety between spouses. But in giving a fair reading 

to the whole instrument, we will find the presumption is rebutted if its terms reasonably reflect the 

parties’ intention to establish a different form of tenancy—a standard we find satisfied here.
8

Recall that the Deed’s granting clause provides in pertinent part: “[Grantor] CONVEYS 

AND WARRANTS to CHERYL L. UNDERWOOD, of legal age, and KENNETH KINNEY 

AND JUDITH M. FULFORD, husband and wife, all as Tenants-in-Common[.]”

We consider two aspects of the granting clause that bear on the issue of what interests in 

the Property the Grantor conveyed to the three grantees: the phrase “husband and wife”, on the 

one hand, and the phrase “all as Tenants-in-Common”, on the other. We conclude that the phrase 

“all as Tenants-in-Common” establishes the parties’ intention to create a tenancy in common 

among all three grantees, and that the phrase “husband and wife” does not compel a tenancy by 

the entirety.

The Grantor’s inclusion of “all” in the phrase “all as Tenants-in-Common” shows that he 

did not view Husband and Wife as one entity whose unitary estate in the Property was by the 

entireties. Were that his intention, the Deed would have described two sets of grantees—

Underwood and Husband/Wife—and said they were acquiring their interests “both as Tenants-inCommon”. We hold that the phrase actually used—“all as Tenants-in-Common”— refers to more 

than two such tenants and denotes that “all” three grantees take and hold as tenants in common. 

This phrase creates at least the appearance that the parties intended a form of ownership other than 

a tenancy by the entirety between Husband and Wife under Section 32-17-3-1(d)(2). And, on this 

record, the phrase expressly creates a tenancy in common between them as contemplated by 

Section 1(d)(1). Either way, the Deed defeats the legal presumption.

Against this conclusion, the Estate argues that the phrase “KENNETH KINNEY AND 

JUDITH M. FULFORD, husband and wife” shows the Grantor’s intention to create a tenancy by 

the entirety between Kinney and Fulford or, at a minimum, shows the Deed is insufficient to rebut 

the legal presumption favoring such a tenancy. But the phrase “husband and wife” does not 

necessarily reflect the Grantor’s intention to create a tenancy by the entirety. Established case 

authority holds that a “husband and wife, though not thus described in a deed of conveyance of 

real estate executed to them, take under such deed as tenants by the entireties.” Hulett v. Inlow, 57 

Ind. 412, 414 (1877) (citing Chandler, 37 Ind. at 394). In other words, husbands and wives enjoy

the legal presumption favoring tenancies by the entirety, regardless of whether the deed describes 

them as married. Under this view, the phrase is descriptive and provides little or no insight into 
9

the Grantor’s intent. Thus, we disagree that the phrase “husband and wife” prevents the deed from 

defeating the legal presumption.

We conclude the Deed rebuts the presumption favoring a tenancy by the entirety between 

spouses and reasonably reflects the parties’ intention that all three grantees take and hold their 

interests in the Property as tenants in common—meaning that Husband’s interest passed to his 

Estate upon his death.

II. Underwood did not make a fatal judicial admission in her trial-court petition.

We also consider whether Underwood’s “Petition to Compel Partition of Real Estate” 

contains a judicial admission fatal to her case. The argument is that Paragraph 3 of her petition, 

quoted below, essentially concedes the spousal interests are held by the entireties, given her 

allegation that she had an “undivided one-half interest” in the Property, and that so, too, did 

Husband and Wife:

Throughout the period of time from July 25, 2002, to the date of the filing of this 

Petition, it has been understood and reflected on tax returns that Cheryl L. 

Underwood took title to an undivided one-half interest in the subject real estate and 

that this was a business partnership wherein Kenneth Kinney [Husband] and Judith 

M. Fulford [Wife] owned the remaining undivided one-half interest in the real 

estate with the two one-half interests being owned by Tenants-in-Common. 

Statements in a party’s pleadings “may be taken as true as against the party without further 

controversy or proof.” Lutz v. Erie Ins. Exchange, 848 N.E.2d 675, 678 (Ind. 2006) (internal 

citations omitted). “Unless a pleading is withdrawn or superseded, any admission contained in the 

pleading is conclusive as to that party.” Id.

We hold that Underwood did not make a fatal pleading admission by characterizing the 

grantees’ interests in the Property as “undivided one-half interest[s]”. An undivided interest is 

merely “[a]n interest held under the same title by two or more persons, whether their rights are 

equal or unequal in value or quantity.” Black’s Law Dictionary 935 (10th ed. 2014). A property 

interest held with other parties as tenants in common is an undivided interest. “It is the general rule 

that the possession of one tenant in common is the possession of all, and for the common benefit 

of all[.]” King v. Carmichael, 136 Ind. 20, 24, 35 N.E. 509, 511 (1893). Underwood’s pleading 

does not admit to any form of ownership, but merely specifies the proportions in which the three 
10

grantees (before Husband’s death) originally held their respective interests in the Property: 

Underwood, one half; Husband and Wife, together, one half. These ownership proportions are not 

inconsistent with the written conveyance providing that all three conveyed interests were held in 

common.

Conclusion

The Deed overcomes the statutory and common-law presumption in favor of a tenancy by 

the entirety between spouses by specifying that the three grantees own the property “all as Tenantsin-Common”. We reverse the trial court’s contrary judgment and remand for further proceedings 

consistent with this opinion.

Rush, C.J., and Rucker, David, Massa, JJ., concur.