If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CINDY SCHAAF, COLLEEN M. FRYER, and 

GWEN MASON,

Plaintiffs/CounterdefendantsAppellees,

FOR PUBLICATION

July 1, 2021

v No. 343630

Antrim Circuit Court

CHARLENE FORBES, also known as ANGIE 

FORBES,

LC No. 2016-009008-CH

Defendant/CounterplaintiffAppellant.

ON REMAND

Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.

RIORDAN, J. (concurring in part and dissenting in part).

I concur with the majority that the circuit court had subject-matter jurisdiction over this 

case, that it did not abuse its discretion by considering more than 300 pages of documentation 

offered by plaintiffs, and that it did not err by requiring contribution to plaintiffs. However, I 

respectfully dissent from the majority’s conclusion that the circuit court did not err by ruling that 

a trust cannot hold title to real property as a joint tenant with rights of survivorship.1

“The common law, which has been adopted as part of our jurisprudence, remains in force 

until amended or repealed.” Wold Architects & Engineers v Strat, 474 Mich 223, 233; 713 NW2d 

750 (2006). See also MCL 554.43 (“Estates, in respect to the number and connection of their 

owners, are divided into estates in severalty, in joint tenancy, and in common; the nature and 

properties of which respectively, shall continue to be such as are now established by law, except 

so far as the same may be modified by the provisions of this chapter.”). It is true that the common 

 

1 Because I would conclude that the circuit court erred in this regard, I also disagree with the 

majority that the circuit court’s corresponding partition ruling should be affirmed as well.
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law provided that neither corporations nor sovereigns may hold title as a joint tenant because “king 

and corporation can never die.” 2 Blackstone, Commentaries on the Laws of England, p *184. 

That is, “because a corporation can survive indefinitely, which is contrary to the right of survival 

of a joint tenancy,” a corporation may not hold title as a joint tenant under the common-law rule. 

6A Fletcher, Cyclopedia of the Law of Corporations § 2816.

However, as the majority acknowledges, a trust could not exist in perpetuity under the 

common law. See Scudder v Security Trust Co, 238 Mich 318, 320; 213 NW 131 (1927). Thus, 

the basis for the common-law rule precluding a corporation from holding title as a joint tenant is 

inapplicable here. Indeed, the majority does not cite any authority providing that a trust may not 

hold title as a joint tenant under the common law. Rather, the majority offers “common sense” 

arguments to reach its conclusion. In my view, the common law and statutory framework provide 

to the contrary, and that is what we should follow to resolve the matter before us.

“A trust is a right, enforceable solely in equity, to the beneficial enjoyment of property the 

legal title to which is vested in another.” Fox v Greene, 289 Mich 179, 183; 286 NW 203 (1939). 

“ ‘Trusts’ in the broadest sense of the definition, embrace, not only technical trusts, but also 

obligations arising from numerous fiduciary relationships, such as agents, partners, bailees, etc.” 

Id. (cleaned up). See also Restatement (Third) of Trusts § 2 (“A trust . . . is a fiduciary relationship 

with respect to property, arising from a manifestation of intention to create that relationship and 

subjecting the person who holds title to the property to duties to deal with it for the benefit of 

charity or for one or more persons . . . .”).

Our common law recognizes that a trustee may hold title as a joint tenant. See, e.g., Norris 

v Hall, 124 Mich 170, 176; 82 NW 832 (1900) (“The deed from Dyson to the five trustees expressly 

stated that they were to hold ‘as joint tenants, and not as tenants in common.’ ”); Fox, 289 Mich at 

184 (“[P]roperty held by a trustee who is a joint tenant, or tenant in common with another, may be 

partitioned at the instance of the trustee, or of any person beneficially interested in the trust.”).

2

 If 

a trustee may hold title as a joint tenant, it seemingly follows that the trust itself may be deemed 

as holding title as a joint tenant to the same extent. See Ford v Wright, 114 Mich 122, 124; 72

NW 197 (1897) (explaining that a trustee holds trust property). The conclusion that a trust may 

hold title as a joint tenant is consistent with the Restatement (Third) of Trusts § 40, which explains 

that “a trustee may hold in trust any interest in any type of property.” Comment b to that section 

further explains: 

[L]egal or equitable present interests in real or personal property for life or for a 

term of years, and presently existing future interests, whether legal or equitable, 

whether reversionary interests, executory interests, or remainders (contingent, 

vested, or vested subject to being divested), may be held in trust.

 

2

I acknowledge that Norris and Fox concerned properties in which the joint tenants were all 

trustees. Nonetheless, such cases illustrate that there was no blanket common-law prohibition 

against a trustee holding title as a joint tenant.
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Accordingly, in my view, the common-law authorities cited above weigh in favor of a rule 

that a trust may hold title as a joint tenant, or at a minimum, fail to establish a contrary rule.

Alternatively, even if there was a common-law rule providing that a trust may not hold title 

as a joint tenant, I would conclude that such a rule has been superseded and replaced by statute. 

The Michigan Trust Code, which is set forth as Article VII of the Estates and Protected Individuals 

Code, MCL 700.1101 et seq., is a comprehensive scheme with dozens of provisions addressing 

virtually every aspect of trust law. “In general, where comprehensive legislation prescribes in 

detail a course of conduct to pursue and the parties and things affected, and designates specific 

limitations and exceptions, the Legislature will be found to have intended that the statute supersede 

and replace the common law dealing with the subject matter.” Trentadue v Buckler Lawn 

Sprinkler, 479 Mich 378, 390; 738 NW2d 664 (2007) (quotation marks and citations omitted). 

Thus, for example, this Court has held that the Michigan Trust Code sets forth the exclusive 

grounds for removal of a trustee and that a trustee cannot be removed for additional grounds at 

common law. In re Gerald L Pollack Trust, 309 Mich App 125, 161-163; 867 NW2d 884 (2015).

Relevant to this case, there is no provision within the Michigan Trust Code that precludes 

a trust from holding title to real property in the same manner as a natural person. This absence is 

noteworthy because the Michigan Trust Code includes several provisions otherwise limiting trusts 

and trustees. See, e.g., MCL 700.7404 (“A trust may be created only to the extent its purposes are 

lawful, not contrary to public policy, and possible to achieve.”); MCL 700.7815(3)(b) (“A trustee 

may not exercise a power to make distributions pursuant to a discretionary trust provision in a 

manner to satisfy a legal obligation of support that the trustee personally owes another person.”). 

Further, the Michigan Trust Code includes several provisions conferring broad powers upon trusts 

and trustees to hold, manage, and distribute trust property. See, e.g., MCL 700.7816(1)(b)(ii) (“A 

trustee, without authorization by the court, may exercise all of the . . . [p]owers appropriate to 

achieve the proper investment, management, and distribution of the trust property.”); MCL 

700.7817(g) (“[A] trustee has . . . [the power to] acquire property, including property in this or 

another state or country, in any manner for cash or on credit, at public or private sale; and to 

manage, develop, improve, exchange, partition, or change the character of trust property.”). In my 

view, the express conferral of such powers, coupled with the absence of any express limitation that 

would be controlling here, shows the Legislature’s intent to supersede and replace any commonlaw rule that may have existed to prohibit a trust from holding title as a joint tenant. 

I respectfully disagree with the majority that “[c]ommon sense and relevant law establish 

that . . . a trust may not hold property as a joint tenant with rights of survivorship.” The commonlaw rule against a corporation holding title as a joint tenant—which the majority extends here to 

trusts—is, according to one court, “universally criticized and generally ignored in the United 

States.” Bank of Delaware v Bancroft, 269 A2d 254, 255 n 1 (Del Ch 1970).3 Indeed, the rule 

 

3

In Bancroft, the Delaware Court of Chancery ruled that a trust company may hold title as a joint 

tenant with rights of survivorship because a Delaware statute conferring the powers of “a legally 

qualified individual” upon such companies superseded the common-law rule to the contrary. 
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was revoked in England in 1899 by the Bodies Corporate (Joint Tenancy) Act, 1899, 62 & 63 

Vic.C. 20. Id. As illustrated by this case itself, application of the rule results in a division of 

interests that, in all likelihood, was completely unforeseeable by both the grantor and the grantees 

at the time of the trust’s creation. Even if such a peculiar outcome is compelled by the common 

law applicable to corporations and joint tenancies, our Legislature has sensibly abrogated that 

common law with respect to trusts in order to provide stability and certainty to trustees and those 

who engage with them.

Accordingly, I respectfully dissent from the majority’s conclusion that a trust cannot hold 

title to real property as a joint tenant with rights of survivorship. 

/s/ Michael J. Riordan

 

See also Bogert, Trusts & Trustees (2d ed) § 145 (“In the United States, where a trust company or 

bank is made co-trustee with an individual, it is usual to provide in the trust instrument for 

survivorship in the corporate trustee. If such a provision is not made, . . . the ancient law with 

regard to the inability of corporations to act as joint tenants is deemed to be still in force . . . .”).