# FILED
May 14, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN RE: ) ) ESTATE OF ED WARD P . RUSSELL, ) ) Deceas ed, ) ) BILL COVINGTON and BRENDA ) JOHNSON, ) ) Plaintiffs/

Appellee s, ) ) Davidson Probate VS. ) No. 98777 ) VELMA RUS SELL, ) ) Appeal No. Defendant/Appellant, ) 01A01-9611-PB-00516 Count er-P laint iff, )

) ERVIN B. and EDWARD P. RUSSELL, ) JR., ) ) Interve nors/Defe

ndants, ) Counter- Plaintiffs. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEAL FROM THE DAVIDSON PR OBATE COURT AT NASHVILL E, TENNESSEE HONORABLE JO HN A. TURN BULL, JUDG

E BY DESIGN

ATION Charles C. Cornelius #2761 Nashville City Center, 911 Union Street, Suite 2700 Nashville, Tennessee 38219 ATTORNEY FOR DEFENDANT/APPEL LANT George H. Cate, Jr., #2775 95 White Bridge Road, Suite 503 Caval ier Bld g. Nashville, Tennessee 37205 ATTORNEY FOR PLAI

NTIFF/APPEL

LEE Greg Galloway , #4931 101 Antioch Pike, Suite 100 Nashville, Tennessee 37211 ATTORNEYS FO R INTERVENORS, DEFENDANTS/ COUNTER-P LAINTI FFS 

### REVERSED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR: BEN H. CANTRELL , JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

IN RE: ) ) ESTATE OF ED WARD P . RUSSELL, ) ) Deceas ed, ) ) BILL COVINGTON and BRENDA ) Davidson Probate JOHNSON, ) No. 98777 ) Plaintiffs/

Appellee s, ) ) VS. ) ) VELMA RUS SELL, ) ) Defendant/Appellant, ) Appeal No. Count er-P laint iff, ) 01A01-9611-PB-00516

) ERVIN B. and EDWARD P. RUSSELL, ) JR., ) ) Interve nors/Defe

ndants, ) Counter- Plaintiffs. )



### O P I N I O N

The captioned defendant has appeal ed froman adverse decision of the Trial Court regarding her inte rest in real estate. The undisputed chain of events le ading to

this contr oversy is as follo ws:

In 1965, Mar

y L . Covin gton, a widow, now deceased, purchased in he r sole name, the subject real es tate loca

ted in Davidson County, Tennessee . Her children were the plaintiff s, Bill Covington and Brenda Johnson.

Thereafter, in 1966 or 1967, Mrs. Covington married Edward P. Russell whose children, by a previous marria

ge, Er vin B. Russ ell and Ed

ward P. Ru ssell, Jr., are intervening petitioners in the present case.-3- On Februa

ry 21, 1968, M

rs. Coving

ton Russell

executed a warranty

deeddescribing the subject p roperty and providing in p ertinen t part as f ollows: For and in conside

ration of the sum of

$10.00 DO LL

ARS cash in hand paid, the receipt of which is hereby acknowledged and other good and valuable considerations, includingthe assumption by the Grantee s of the outstanding principal balance of a note desc ribed in a

nd secur ed by , that ce

rtain De ed of Tru st from Charles C. Lloy

d, Register’s Office for said County Mary L. Covington Russell has barga ined and sold, and by these presents Do transfer and convey unto the said Mary L . and Edward P. Russell their heirs and assigns, a certain trac t or parcel of land in Davidson County , State of Tennessee.

On the same date, February 21, 1968, E. P. Russell signed and sworeto an affidavit of the value of the property . The deed was re co rd ed in th e R eg is te r’ s O ff ic e o f D av id so n C ou nt y, Tennessee.

On August 11, 1972, Mary Covington Russell filed a suit for divor ce. Ther e is no evidence or insistence that any order or decree was ever e

nteredin that pro ceeding

which wou

ld af fe ct th e t it le to th e s ub

je ct pr op er ty.

On January 28, 1980, Mary L. Covington

Russell died. Her survivors were her husband, Edward P. Russell, a

nd her tw o childre

n, Bill Covington a

nd Brenda Johnson. Edward P. Russ ell conti nued t o occu py the subject p ropert y and to pa y the inst allm ents o f the m ortgage indebted ness.

In 1984, Edward P. Russell married the defendant, Velma Russell. Edward Russell and Velma Russell occupied the subject property until his death on February 16, 1992. His widow, the defendant Velma Russell, and his two children, the intervenors Ervin Bradford Russell and Edward P. Russell, Jr. , survive d him.

On Febru ary 26, 1992, Ve lma Russell qualified as administratrix of the estate of the deceas ed, Edwa

rd P. Russell.-4- On Septe mber 4, 1992, the plaintiffs, surviving children of Mrs. Mary L. Covington Russell, filed cla

ims against theestate of Edward P. Russell seeking enforce ment of an alleged antenuptial agree

ment of Ma

ry L. Covington a

nd Edwar d P. Russell. Exceptionswere fi led to the claims. T

his reco rd does not reflect what dis position wa s made of the claims or the exceptions thereto.
On March 30, 1993, the surviving children of Edwar d P. Russell, Ervin B. Russell and Edward P. Russell, Jr., filed an intervening petition in Probate C ourt unde

r the ca ption, “I n Re Estate of Edward P., Russell, Docket No. 98777.” The petition asserted:

Comes Ervin Brad

ford Russe

ll and Edw ard Phillip

Russell, Jr. petitioner’s and heirs of the Deceased, and would show unto the Court: I. That they ar

e the only lawful he

irs to the property of the deceased described and known as 1818 Tammany Dr., Nashville, Da vidson Coun

ty, Tenness ee. Tha

t said pro perty was held in fee simple in the sole name of Deceased a t the time of his death. II. That the Deceased’s widow, Velma Russell, was not listed on the deed of said property . That said property at the point of death of deceased passed immediately to deceased’s issue, Ervin Russell and Edward Russell, Jr. III Th at Ve lm a R us se ll sh ou ld no t b e a ll ow ed to cl ai m a ny interest in said property, suc h as Elective Share, Homestead, Years Support, or One Third I nterest, because there existed a pre-n uptial ag reemen t betwee n Decea sed and V elma Russe ll which waived any

claim that she might have to said property
.

IV. That petitioner Ervin Russell has witnessed the pre-nuptial document signed by

both the Deceased and Velma Russell. That petitioners a sks the Cou rt to rec onstruct

this appa rently lost document. That Velma Russell refuses to admit the existence of said pre-nuptial agreement. An unsig ned copy of said document is attached to this petition as Exhibit A. PREMISES CONSIDERED, PETI TIONERS PRAY: 1. That petitioners be allowed to file this petition and a copy of same

by served upon the

administrator of this estate, Velma Rus sell.-5-2. That the Court reconstruct the lost pre-nuptial document. 3. That the

Court issue

an order stating that Velma Russell has no interest in the property known as 1818 Tammany D r., Nashville, Tennessee. 4. That the costs of this cause along with attorney ’s fees be asses sed ag ainst Vel

ma Russell
. 5. For general relief

.

On December 22, 1994, the captioned plaintiffs filed in Probate Court a complaint under the caption, Bill Coving ton and Brenda Johns on, pla i ntiffs v. Ve lma Russe ll, Ervin B radford Russell and

Edward Phillip Russell, Jr., de fendants , Docket No. 98777.” The complaint read as follow s: Comes (sic) the plaintiffs, Bill Covington and Brenda Johnson, in the

above sty

led matte r and for cause of action a gainst the Defendants, Velma Russell, Ervin Bradford Russell, and Edward Phillip Russell, Jr., would show unto the Court the following , to wit:1. That the Plaintiff, Bill Covington, is a resident of Nashville, Davidson County, Tennessee;2. That the Plaintiff, Brenda Johnson, is a resident of Nashville, Davidson County, Tennessee; 3. That the Defendants, and each of them, a ll reside in the City of Nashville, County of Davidson, State of Tennessee. The real property

herein referred to, which is the subject of this action, is situated in the City of Nashville, County of Davidson, State of Tennessee. 4. That the

Plaintiff s as name d herein , are the natural ch il dr en of

Ma ry L. Co vi ng to n R us se ll , w ho di ed on Ja nu ar y 28, 1980; 5. That prior to the death of the said Mary L. Covington Russell, the said Mary L . Covington Russell executed a Warranty Deed on the property a t issue, from her sole name into the na me of M ary L. And Edw ard P. Russ ell, a fter b ecomi ng the lawf ul wife of

Edward P. Russell, a

copy of which is annexed hereto, made a part hereof, a nd marked as Exhibit A; 6. Th at sa id Wa rr an ty D ee d f ai le d t o s pe ci fy t he co nv eyance of the real property

at issue as tenants-by- the-entirety in accord ance wi th T.C .A. S ectio n 66-1 -109, thereb y creating the presumption that the intent of the said Mary L. Covington Russell was to create a tenancy-in-common;-6- 7. That the said Mary L. Covington Russell died intestate, and that a

fter he r death t he said Ed

ward P. Ru ssell kep t possessio n of the r

eal prop erty

at issue, and subsequently married said Velma Russell;
8. That the Plaintiffs as named herein are informed and believe, and so allege, that the said Edwar d P. Russell died intestate as a resident of this state, and Defendant Ve lma Russell, his wife, continues to reside at the real property at is su e. Pl ai nt if

fs ha ve ma de a d il ig en t s ea rc h a nd in qu ir y concer ning the heirs or devises o f deced

ent Edwa rd P. Russell and have been able to determine or asce rtain, and believe that the sa

id heirs o r devise s are the

Defend ants as named herein;9. That the Plaintiffs, Bill Covington and Brenda Johnson , ar e th e su rvi vi ng h eir s or dev is es o f de ced ent Mar y L. Covington Russell, and pursuant to T.C.A. Section 31-2- 104, (laws of descent and distribution) are the owners of the undivided interest formally ( sic)owned and held bydecedent Mary L . Covington Russell. Plaintiff, Velma Russell, is in posse ssion of the real p roperty and the sa

me is, as Plaintiffs are informed and believe, not capable of pa rtition and divisi on, but the

same ca n be rea dily sold for it s fair market value, and the proceeds partitioned. Wherefore, premises considered, Plaintiffs pray: 1. That this petition be filed under the estate of Edward P. Russell and that the same be served upon the attorneys of r

ecord for the respective defe ndants, requiring them to answer this complaint within the time prescribed by law, but oath to their answe r is hereby e

xpressly waived; 2. That upon partition, the undivided interest of the known heirs or dev ises o f the d eceden ts, M ary L. Covin gton Russell and Edward P. Russell, can be apportioned to them in their several shares, as their interests are ascertained and adjudicated; 3. That upon hearing of this cause, the Plaintiffs eac h be adjudged to be e

ntitled of one-sixth ( 1/6) shar

e of the f air market value of the property at issue; 4. Th at De fe nd an t, Ve lm a R us se ll , b e r eq ui re d t o p ay rent in a fair and reasonable amount to the Plaintiffs, for the ti me in wh ic h s he ha s o cc up ie d s ai d r ea l p ro pe rt y; 5. That the costs and expenses of this action and of the partition hereby soug

ht, including the expenses and renumer ation of s uch ref

erees o r commissi ons as the

Court may appoint, should be char ged equitably

against the interest s of Defe

ndants, a nd each of them he

retofore described;-7- 6. That the p

roperty be sold at

auction a nd the pro ceeds of said sale be distributed to the parties and proportioned to their re spective

interest s; 7. For such other genera l and further relief as the Court deems pr oper and just.

On January 13, 1995, the defe ndant, Velma Russell, filed a motion for s ummary judgmen t readin g in per

tinent pa rt as foll ows: Movant would admit th e materi al factsalleged in the co mplaint being that Mary

L. Covington Russell executed a warranty deed on the property

at 1818 Tammany Dr

ive, Nashville, Tennessee which she solely owned to Mary L . and Edward P. Russell, after becoming his wife. Said conveyanc e created a tenancy by the entirety

thus passing the fee simple title to Edward P. Russell when Mary Covington Russell died January 28, 1980. In support of this motion, defendant, Velma Russell, relies upon the pertinent provisions in the deed from Mary L. Covingto n Russell to

Mary L. And Edward

P. Russell. Estate by entireties c reated by

direct convey ance. T.C.A. § 66-1-109 provides that any married person owning propert y in such per son’s own

name, de siring to

convert such person’s interest into an estate by the entireties with such person’s may

do so by direct conve yance to such spouse by an instrument of conve yance which shall provide that it is the grantor’s intention to create an estate by the entireti es.
- - - - A devise

or conve

ya nce to a h usband a nd wife c reatesa tenancy by

the entirety in the abse

nce of an expression of a co nt ra ry i nt en ti on . It is a r ul e o f c on st ru ct io n t ha t a co nv eyance to husband and wife, the langua ge prima fa

cie means that they are

to hold by the entireties. Bost et al v. Johnson et al, 175 Tenn. 232, 133 S.W.2d 491 (1939).

Since the motion relies upon the allegations of the complaint, it appears to be a motion to dismiss for failure to state a claim for which relief ca n be granted. Neverth

eless, its disposition

is review able in the prese nt appea l.

On June 8, 1994, the plaintiffs, Covington and Johnson, filed a response to the motion for summa

ry judgmen t which re lied upon T .C.A. § 66- 1-109, wh ich rea ds as follo ws:-8- Estate by entireties created by direct conveyance
. Any marrie d person owning property or any intere st therein in such person’s own name, desiring to convert such pe rson’s interest in such property

into an estate by the e

ntireties with such person’s spouse, may do so by direct convey ance to such spouse by an instrument of conve yance which shall provide that it is the grantor’s intention by

such instrument to create an estate by the entireties in an d t o t he en ti re in te re st in th e p ro pe rt y previously held by

the grantor. [Acts 1949, ch. 255, § 1; mod. C. Supp. 1950, § 84611.1 (Williams, § 7605.1); T.C.A. (orig. ed.), § 64-109.] (Emphasis supplied)
The resp onse stat

es: For our

purpose, the import

ant word ing of th is statute is reflected in the

last phra se, “con

vey ance with shall pr

ovide tha t it is the g

rantor’ s intention by such an instrument to cre ate an estate b y e

ntiretie s.” The r

eal issue here is w hether o r not it wa s th e i nt en ti on of

Ma ry L. Co vi ng to n R us se ll to cr ea te an es ta te by entireties when she added her husband’s name to the title of the property. We submit that it was not her intention. Mary L. Covington Russell told Plaintiffs that she never intended Edward R. Ru ss el l t o o wn an y pa rt of sa id pr op er ty, bu t t ha t s he on ly believed it was necessary to put his name on the deed to obtain a loan. See , Affidavit of Bill Covington, p.1. Mary L. Covington Russell told Affiant on several occasions that she believed her children, the Plaintiffs, would inherit said real estate at her death. See , Affidavit of Bill Covington, p. 2.
The defendant, Velma Russell, filed an answer and counte r-complaint

and the cause was set for hearing

on its merits. After

the hear ing, the Trial Judg e enter

ed judg ment as fo llows: 2. The motion

of the defendant , Velma Ru ssell, to di smiss the Intervening

Petition of Ervin Bradford Russell and Edward Phillip Russell, Jr., made at the end of plaintiffs’ and intervening petitioners’ proof should be granted; 3. For the reasons expressed by the Court at the end of the trial of this case said warranty deed created in the wife and husband, Mary L . and Edward P. Russell, a tenancy -in-common, ea ch ow ni ng a o ne -h al f u nd iv id ed in te re st an d n ot a t en an cy- byentireti es; 4. Mary L . Russell died intestate prior to the death of Edward P. Russell leaving her two children surviving and tha t by the laws o f intesta

te succe ssion, her

husband, Edward P. Russell and children, Bill Covington and Brenda C. Johnson, became the ow ne rs of a o ne -s ix th in te re st ea ch in th e r ea l p ro pe rt y. 5. At the time

of the inte state de ath of Edw ard P. Russ ell in 1991, histwo-thir

ds undivided intere st in the pr opertydescribed in the deed descended to his spouse, Velma Russell, and-9- two children, Bradford Russell, and Edward Phillip Russell, Jr., in equal shares of four-eighteenths eac h by the law of intestate succession; and 6. Any

and all ot

her cla ims of the p arties w ere not established by the proof

. It is, therefore, ORDERED, ADJUDGED AND DECREED: (1) That the Intervening Petition of Ervin Bradford Russell and Edward

Phillip Russe

ll, Jr., be a

nd the sam

e is hereby dismissed a

nd the cos ts of same

are ass essed ag ainst the petiti oners, f

or which execution

may issue, if n

ecessa ry ; (2) That the Warranty D eed of record in Book 4213, Page 546 of the Register’s Off ice for Davidson County, Tennessee, created a tena ncy-in-c ommon between the wife and husba

nd gra ntees, Ma

ry L. And Edward

P. Russell, in the property the

rein described; (3) That at the time of t he death of Mary L. Rus sell in 1980, her one-half interest descended in equa l shares to her only two children, B ill Covington and Brenda C. Johnson, and he r husb and, E dward P . Rus sell ( Sr.), each ta king a one-sixth undivided interest in said real estate; (4) That at th

e time of t

he death of Edwar d P. Russell (Sr.) in 1991, his two-thirds undivided interest in said property de scended in equal shares to his surviving spouse, Velma Rus sell and th

e decendent’s on

ly tw o childre

n, Ervin Bradford Russell and Edward P. Russell, Jr., each taking an undivided four-eighteenths interest each; (5) Th at th e s ai d p ro pe rt y de sc ri be d i n t he wa rr an ty deed is not capable of being partitioned and should be sold at private sale in accordance with an a greement to be re ac he d b et we en th e p ar ti es or , f ai li ng su ch ag re em en t, by order of the Court upon motion by any one or all of the parties; (6) That any and a

ll other claims of the parties herein should be and are hereby

dismissed; and (7) That the costs of the proceedings other than the costs of the Intervening Petition are assessed equallybetween the parties, for which execution may issue, if necessary .

Fro mthe fore going

judgmen t, the def endant- counter

plaintiff , Velma Ru ssell, ha s appealed and pre sented the following issue s:

I. Should the Trial Court have granted defendant’s motion for

summary judgmen t?-10- II. Does the admissible evidence in the case preponderate against the Trial Court’s decision that the warranty deed of February

21, 1968 to wife and husband created a tenancy

in common? III. Is the claim of the plaintiffs to an interest in the property de scribed in the warranty deed barred or precluded by

the defenses of the doctrines and principles of es top pe l a nd l ac he s? IV. Is the claim of the plaintiffs to an interest in the real estate barred by

the provisions of Tenn. Code Ann. § 28-2-102,103 and/or 105?
The intervenors, Ervin B. Russell and Edward P. Russell, Jr., have not appealed or filed a brief in this Cour

t.
I.

The Summ

ary Judgm

ent Moti on
The defenda

nt, Velma Russell , insists that her mot ion for summary judgment should have been sustained because, under the admitted fact that Mrs. Covington e xecuted the February

21, 1968, deed to herself and husband, an estate by the entireties was created.

The plaintiff

s, Bill Covington and Brenda Covington insist that no estate by the entireties was created by

the deed because it contained no provision expressing an intention to create an estate by the e

ntireties as required by

T.C.A. § 66-1-109, quoted above.
Oliphant v. McAm is , 197 Tenn. 367, 273 S.W.2d 151 (1954), involved p ersonal ty held in the name of one spouse, but intende d b y both spouses to be joint marital property . The Supreme Court held that the property was held by the e

ntireties with rights of survivorship. However, the Supreme Court also said:

We think Cha

pter 255 o f the Publi c Acts of 1949 has no applic ation to the

case at bar. The Act mere ly p rovides th at an es ta te by t he en ti re ty may be created by

deed of either husband or wife to one another and that the intention to create such an estate must appear upon the f ace of the instrument of conveya

nce. This statute makes it possible fo r e it he r h us ba nd or wi fe to cr ea te an es ta te by t he en ti re ty-11- without the necessity of deeding the property to a third party and ha

ving that party

re-convey

to the husband and wife an estate by

the entirety. (Empha sis supplied)

Alth ough common-law tenancy by the entireties wa s abolished by the Marr ied Women’s Emancipation act (Cha

pter 26, Pu

blic Acts of 1913, T.C.A. § 36-3-504, common-law estates by the entireties were re -establi shed by Chapter 1 26, Public A

cts of 1919 (T.C.A. § 36-3-505), Bost v. Johnson , 175 Tenn . 232, 133 S. W.2d 491 (1 939). The cited au thority states: “While a c onvey ance or devise to

a husband and wif

e will ordinarily cre ate a tenancy by entireties, the a

uthorities are generally to the effect than an intention, clearly expressed in the instrument, that they shall take as te nants in common or as joint tenants, will be effective, even at common law, if persons who have previously acquired joint interests become hu sb an d a nd wi fe , t he y do no t b ec om e t en an ts by t he en ti re ty, there is evidently nothing in the relation of husband and wife to prevent their acquisition of property as joint tenants or tenants in

common. Th

e result o f this view

is that the

existence of a tenancy

by entireties is a question pure ly of intention, through an intention on the part of the grantor to create such a tenancy

is presumed, in the absence of an expression of a contrary

intention. In other words, there is a rule of construction that, in case of a convey ance to husband and wife, the language

prima facie means that they are to hold by the entireties. 175 Te

nn. At 235.

In Hardin v. Chapman , 36 Tenn. App. 343, 255 S.W.2d 70 7 (195 2), property w as conveyed “unto H. H. Brown and his wife, Mary B rown, equally a nd jointly --- to ha ve and to hold the same to the said H. H. Brown and Mary Brown, their heirs and assigns foreve r”. This Court held that a tenancy

by the entireties re sulted and said: [1] “An esta

te by entirety which is a

form of c o-owner ship held by husband a

nd wife with righ

t of surviv orship, is defined as an estate held by husband and wife by

virtue of title acquired by them jointly after marriage.” 41 C. J. S., Hu sb an d a nd Wi fe Se ct io n 3 4, pa ge 45 8. An d “ an es ta te by the entireties involves the unities of time, title, interest, and possession, as well as the husband and wife unityof ownership.” 26 Am. Jr., Sec. 71, p. 698.

- - - - [3] It is generally

held that a tenancy

by the entirety

is created when a husband and wife take an estate to themse lves jointly, and such will be presumed where words do not appea r to the contrar y or , as in the

instant ca se, wher

e the languag e used is ambiguous. Bost v. Johnson , 175 Tenn. 232, 133 S.W. (2d)-12- 491. Regarding estates cre ated by the e ntireties, the Court, in Bennett v. Hutchens , 133 Tenn. 65, 179 S. W. 629, 630, said: “By the authorities it is held that a deed to husband and wife, which would at common law have created in them an estate in join tenancy, ha

d they not been mar

ried, does, by the fact of the marriage, crea te in the husband a

nd wife a n estate by t he entir eties. “By the

authorities it is held that a deed to husband and wife, which would at common law have created in them an esta te in joint tenancy, had they

not been married, does, by the fact of the marriage, create in the husba nd and wife an estate by

the entireties. 36 Tenn. App. 347, 349.

The deed in the present case does not designa te the convey ees as husband an d wife. However, the evidence is uncontradicted that they were, in fact, husband and wife when the deed was executed.

At the bar of this Court, it was conceded that, if the deed in the present case had been executed by a third par ty, the result would ha

ve been a tenancy by

the entir eties.

Neverth eless, it i s insisted that the fact that the conveyor

was not a third party, but one of the spouses brings the transaction within the scope of T.C.A. § 66-1-109 which states, “may do so by direct convey ance -- - which sh all provid e that it isthe gra

ntor’s int ention -- - to cre ate an estate by the

entireties.”

The above cited authorities lead this Court to the conc lusion that, in order to create an estate by the

entireties by a deed to two spouses, it is not necessary to state in the deed that the convey ers are husband a

nd wife if they are such in fact
.

If a conveyor c onveys proper ty to two people who are

in fact husband and wife, an estat e by the entireties results unless the deed states otherwise. A conveya nce to husband and wife by-13-

a th ir d p ar ty cre ates a presumption of intent to create an estate by the entireties, requiring contrad ictory evidenc e to produ ce a dif ferent result.

No reason o ccurs to

this Court w

hy t he same rules shouldnot apply

to a conve

ya nce to two spouses by one of the spouse s as conveyor .

T.C.A. § 66-1-109 applies only to deeds fromone spouse to the other spouse. That is, if one spous e desire s to convey to his or her spouse an interest in property on a “one to one basis,” the deed

must in some

manner indicate on its fact an intention to produce an estate by the entireti es.
If, on the other hand, the property is conveyed by

one spouse to both spouses, the result is the same

as if the c onveyor were

a third pe

rson, tha t is, the fa

ct that t he conveyees were spouses created a presumption of intent to create esta tes by the entireties. The re be ing n o evidence in this record to contradict the presumption, it is conclusive as a matter of law.

The resu lt of the f orego ing is: When Mrs. Covington Russell conveyed her property to herself and husband, she created estates by the e

ntirety in her husband a

nd herself.

When Mrs. Coving

ton Russell

died, her husband’ s estate by the entire ty became an

estate in fe e, an d M rs . C ov in gt on ’s he ir s h av e n o i nt er es t i n t he pr op er ty.

It was error for the Trial Judge to overrule the motion of th

e defen dant, Velma Russell, for a summary

judgment. This Court sustains the motion.-14- II. Preponderance of Evidence

Since the undisputed evid

ence requires the summary dis missal of plaintiff’s su it, the issue of prepondera nce of evidence is moot. None of the evidence contradicts the common law presumption which is therefore conclusive.

III. Bar of Estoppe

l and Laches

Since the suit of

plaintiffs must be dismissed on other grounds, the issues of estoppel and laches a re moot.

IV. The Bar of T.C .A. §§ 28- 2-102, 103, 105 (Adv erse P ossession)

Since plaintiff’s suit must be dismissed on other grounds it is unnecessary to discuss the defense of adverse possession.

Otheri ssues presented to the Trial Court and not restated to this Court need not b e discusse d or deci ded by

this Court.-15- The judgment of the Trial Court in respect to the claim of Bill Covington and Brenda Covingto n is reve

rsed, and the cau se is remanded to the Trial Court for entry of a judgment in conform ity with this opinion and further necessary proceedings. Costs of this appeal are assessed against Bill Covington and Brenda Coving ton.



### REVERSED AN

D REMANDED

____________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR:

_____________________________________ BEN H. CANTRELL , JUDGE

_____________________________________ WILL IAM C. KOCH, JR., JUDGE