“Their Heirs and Assigns” + Limited Joint-Tenancy Language Fails the Clear-Intent Standard: Vermont Presumes a Tenancy in Common

1. Introduction

Tammy Kirshon et al. v. Angela Abodeely-Mills and Jonathan Abodeely, et al., 2026 VT 2 (Vt. Jan. 23, 2026), is a family property-title dispute over a lakeside summer-camp parcel in Orwell and Benson, Vermont. The parties are descendants of the original grantees under two deeds: (1) a 1958 quitclaim deed from Thelma L. Lillie to Hazel R. Rathbun and Hazel’s three sons (Leslie, Ernest, and Albert Soothcage), and (2) a 1977 quitclaim deed from Hazel Rathbun conveying her interest to her three sons.

The core issue was whether the 1958 deed created a joint tenancy with right of survivorship (which would funnel title to the last surviving joint tenant, Ernest), or a tenancy in common (which would leave each family line with an inheritable fractional share). The superior court held the deed created a joint tenancy and awarded plaintiffs (Ernest’s daughters) 5/6 of the property. The Vermont Supreme Court reversed, holding the 1958 deed created a tenancy in common, and therefore did not reach the parties’ competing severance theories under the 1977 deed.

2. Summary of the Opinion

The Court reviewed summary judgment de novo and interpreted the deed without deference to the trial court. Applying Vermont’s statutory presumption favoring tenancies in common, the Court reiterated that a joint tenancy exists only when the instrument expresses that intent in “clear and definite terms.”

Two features prevented the 1958 deed from meeting that standard:

  • The granting clause contained no joint-tenancy language.
  • The habendum clause was internally inconsistent: it described the grantees as “joint tenants with right of survivorship” but then continued with “their heirs and assigns forever”, language the Court previously treated as inconsistent with survivorship.

Because the deed did not clearly overcome the statutory presumption, it was construed as a tenancy in common. The Court reversed and remanded for entry of judgment consistent with that construction.

3. Analysis

3.1 Precedents Cited

Deed interpretation principles

  • LeBlanc v. Snelgrove, 2015 VT 112, ¶ 30: deed construction is a question of law reviewed de novo; the “master rule” is that intent governs. The Court used this as the framework for independent interpretation.
  • Kipp v. Chips Est., 169 Vt. 102, 105-08, 732 A.2d 127, 129-31 (1999): central case. It supplies (a) the “clear and definite” requirement to find joint tenancy in Vermont, (b) the insistence on reading the entire instrument harmoniously, and (c) the specific insight that adding “their heirs and assigns forever” is inconsistent with survivorship. The Court treated Kipp as controlling on the inconsistency problem and as reinforcing the statutory presumption.
  • Aiken v. Clark, 117 Vt. 391, 393, 92 A.2d 620, 621 (1952): supports contextual reading—interpret “not simply a single clause” but the “entire context.” The Court used Aiken (alongside Kipp) to criticize the trial court’s focus on the habendum clause alone.

Statutory presumption and “clear expression” comparison across jurisdictions

  • Cross v. Cross, 85 N.E.2d 325, 327 (Mass. 1949); Palmer v. Flint, 161 A.2d 837, 842 (Me. 1960); Gagnon v. Pronovost, 71 A.2d 747, 748-51 (N.H. 1950); Therrien v. Therrien, 46 A.2d 538, 538 (N.H. 1946). The Court used these not as binding authority but as persuasive confirmation that Vermont’s approach—favoring tenancies in common absent a clear expression—is consistent with neighboring states. Of particular importance, Gagnon v. Pronovost supported the point that a lone survivorship reference, not repeated across the instrument, can be “too sketchy and speculative” to create a joint tenancy. Palmer v. Flint and Therrien v. Therrien served as contrasts where repeated and consistent joint-tenancy language across clauses supported joint tenancy findings.

Procedural and ancillary citations

  • Tillson v. Lane, 2015 VT 121, ¶ 7 and Bartlett v. Roberts, 2020 VT 24, ¶ 9: standard of review for summary judgment and resolving reasonable doubts against the movant.
  • DeGraff v. Burnett, 2007 VT 95, ¶ 20: if a writing is unambiguous, courts enforce it as written without resort to construction rules or extrinsic evidence. The opinion noted (in a footnote) defendants’ argument that the trial court improperly relied on a typewritten/preprinted hierarchy while declaring the deed “not ambiguous,” but the Supreme Court did not decide the point because reversal was warranted on the deed’s language itself.
  • Methodist Church of Sandgate v. First Nat'l Bank of N. Bennington, 125 Vt. 124, 128, 211 A.2d 168, 171 (1965): cited for the proposition that survivorship is the distinguishing feature of joint tenancy. This was part of the trial court’s discussion, acknowledged in the Supreme Court’s recitation.

3.2 Legal Reasoning

  1. Start with the statute and heightened clarity requirement. The Court placed 27 V.S.A. § 2(a) at the center: conveyances to two or more persons are construed as tenancies in common unless the deed expresses joint tenancy (or survivorship) expressly. Consistent with Kipp v. Chips Est., that means the proponent of joint tenancy must point to clear, definite language overcoming the presumption.
  2. Read the deed as a whole. The trial court treated survivorship in the habendum clause as “critical” and largely dispositive. The Supreme Court rejected that clause-by-clause approach, invoking Kipp and Aiken to require a holistic reading that attempts harmony across clauses. The Court treated the absence of joint-tenancy language in the granting clause as meaningful when judging whether intent was “clear and definite.”
  3. Identify internal inconsistency as fatal to “clear and definite” intent. Even though the habendum clause used the phrase “as joint tenants with right of survivorship,” the Court focused on what followed: “their heirs and assigns forever.” Under Kipp, “their heirs and assigns” suggests inheritable shares for each grantee (a tenancy-in-common attribute), rather than survivorship to the last living joint tenant (and then that survivor’s heirs). The unresolved contradiction created enough doubt that the deed could not meet the clarity threshold required to create a joint tenancy.
  4. Apply the presumption: tenancy in common. Once the deed failed the clarity test, 27 V.S.A. § 2(a) supplied the default rule. The result: the 1958 conveyance created a tenancy in common, and the Court therefore did not need to decide how (or whether) the 1977 deed severed a joint tenancy.

3.3 Impact

The opinion’s practical and doctrinal impact is concentrated in deed drafting and title litigation:

  • Reinforcement—and sharpening—of the “clear and definite” test. Even explicit “joint tenants with right of survivorship” phrasing may be insufficient if paired with language signaling inheritable interests (“their heirs and assigns”) and if not consistently reflected elsewhere in the deed.
  • Clause placement matters. The Court signaled that joint-tenancy intent is more credibly “clear” when it appears consistently across key clauses (especially the granting clause), not as a lone or internally conflicted phrase in the habendum.
  • Risk allocation in family and informal conveyances. Many family deeds use form language (“heirs and assigns forever”) without appreciating survivorship consequences. This decision increases the likelihood that such instruments will be construed as tenancies in common—preserving inheritable fractional shares and increasing the chance of multi-heir co-ownership disputes.
  • Title examination and quiet-title strategy. Litigants relying on survivorship should expect close scrutiny for internal consistency and for repetition of joint-tenancy intent across the instrument. Conversely, parties seeking tenancy-in-common outcomes can point to form “heirs and assigns” language as undermining survivorship claims.

4. Complex Concepts Simplified

  • Joint tenancy with right of survivorship: Co-owners share one unified estate; when one dies, that person’s interest automatically passes to the surviving joint tenant(s), outside probate.
  • Tenancy in common: Co-owners hold separate fractional shares in the same property; each share is inheritable and can pass by will or intestacy.
  • Granting clause vs. habendum clause: The granting clause identifies who receives what; the habendum clause traditionally defines the nature/extent of the estate (“to have and to hold…”). Vermont reads deeds as a whole; a habendum clause can explain the grant, but inconsistency across clauses can defeat a claimed estate.
  • “Their heirs and assigns forever”: Traditional fee-simple form language. In this context, the word “their” implies each grantee’s heirs may inherit that grantee’s share—conceptually at odds with survivorship, where the decedent’s heirs take nothing because the survivor takes all.
  • Statutory presumption (27 V.S.A. § 2(a)): Vermont defaults to tenancy in common for multi-grantee conveyances unless joint tenancy is clearly expressed.

5. Conclusion

2026 VT 2 extends and concretizes Vermont’s pro-tenancy-in-common stance: to create a joint tenancy, a deed must express survivorship intent in language that is not merely present, but clear, consistent, and non-contradictory. A deed that (i) omits joint-tenancy intent from the granting clause and (ii) couples survivorship language with “their heirs and assigns forever” will likely fail to overcome 27 V.S.A. § 2(a)’s presumption. The decision is a cautionary directive to conveyancers and families alike: survivorship must be drafted with precision—or Vermont courts will default to inheritable fractional ownership.