CLEMENTS v. WHEELER

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Docket Number

SC 1079.

Attorney(S)

Louis W. Scholl, Birmingham, for appellant. The import of the Nunn decision in effect destroys the intent of the donors and draftsmen who have relied on the validity of the construction of a cross-contingent remainder in at least one of its beneficial aspects — the ability to function in the nature of a spendthrift devise. The ruling of the Nunn decision reaches constitutionality proportions wherein no grace period was given nor was it made prospective. Even if joint tenancies were rejuvenated by amendments to Title 47 § 19, Code of Alabama as reported by the Court in the Nunn decision, there can still exist an indestructible right of survivorship attached to a tenancy in common. J. H. Crow, III, Birmingham, for appellee. Upon conveyance of the undivided interest of one tenant of a joint tenancy with incidence of survivorship a new tenancy in common is created which has no right of survivorship among joint owners and one of the joint owners of said tenancy in common is entitled to bring an action for partition or sale and division. Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972); Code of Ala., Tit. 47 § 19; Code of Ala., Tit. 47 § 186. No Constitutional prohibition is violated by a changed interpretation of Code of Ala., Tit. 47, § 19, which adversely affects or destroys contingent rights not vested under prior interpretations at the time of said change. Shrout v. Seale, 287 Ala. 251, 250 So.2d 592 (1971); Code of Ala., Tit. 47 § 140; Samples v. State, 19 Ala. App. 478, 98 So. 211 (1923).

Judges

JONES, Justice.

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Chandler CLEMENTS v. M. Wayne WHEELER.

JONES, Justice.

This appeal is from a judgment of the Circuit Court of Jefferson County in favor of the plaintiff-appellee, Wayne Wheeler, wherein his Bill for Sale and Division was granted.

Briefly, the facts are:

In 1968, Walter and Emma Barrett, the grantors, jointly executed a warranty deed conveying Lots 33, 34, and 35 in Block 84, Survey of Klondyke, to Chandler and Jean Clements as joint tenants with right of survivorship. In 1974, Jean Clements conveyed her one-half undivided interest in the aforementioned property to Wheeler. Chandler Clements assigns as error the order of the trial Court granting Wheeler's petition for sale and division.

The sole import of Clements' contention is that our prior decision in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), should be overruled and Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), should be reinstated as the law of Alabama. Bernhard held that as between joint tenants with a right of survivorship, neither joint tenant's interest was salable without acquiescence on the part of the other joint tenant. Nunn overruled Bernhard and held that such joint tenancy with right of survivorship was destructible as at common law.

We commend counsel for both parties for the excellence of their briefs. After a careful reexamination of Bernhard and Nunn, we reaffirm Nunn.

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.

Chandler CLEMENTS v. M. Wayne WHEELER.

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