In re Estate of Johnson

Roy Johnson and his wife Emogene (plaintiff), purchased a home, taking title as joint tenants with the right of survivorship. In 1998, Emogene suffered a stroke. The family decided that Emogene should transfer her interest in the homestead to Roy, assuming that Roy would survive her. In 1999, Emogene executed a power of attorney authorizing her daughter Janice to convey her interest. Janice signed a quitclaim deed on Emogene’s behalf, which provided that Roy and Emogene, as husband and wife, thereby conveyed all interest in the homestead to Roy. Roy passed away in December 1999, survived by Emogene and their three children. The Johnsons’ daughter Beverly was named as the executor of Roy’s estate (defendant). As the surviving spouse, Emogene elected to take against the will. The district court concluded that Emogene’s transfer to Roy was invalid because she was incompetent when she executed the power of attorney. The court found, however, that Roy had unilaterally terminated the joint tenancy by conveying his interest to himself, because the deed expressed his intent to terminate the joint tenancy. The court further concluded that, despite Emogene’s statutory homestead rights, Roy was not precluded from terminating the joint tenancy because his self-conveyance only severed the tenancy, creating a tenancy in common under which Emogene maintained her right to possess the homestead. The court found that title to the homestead was properly split between Emogene and Roy’s estate as tenants in common. Emogene appealed, but passed away thereafter. Her son was named executor of her estate.