Estate of Timothy J. Tehan, Deceased, Timothy R. Tehan, Executor - Page 14

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          possession or enjoyment of decedent’s residence within the                  
          meaning of that section.  It is the estate’s position that he did           
          not.  It is respondent’s position that he did.                              
               In support of the estate’s position under section                      
          2036(a)(1), the estate argues:                                              
                    Here, the decedent made three transfers.  The                     
               transfers were for less than full consideration.  In                   
               fact they were gratuitous; gifts to his children.                      
               However, they were not transfers under which he re-                    
               tained for his life the right to possession or enjoy-                  
               ment of the property transferred or the income from the                
               property.                                                              
                    The deeds were absolute transfers of fee interests                
               in the property without reservation.  The decedent did                 
               not retain under the transfer the right to possession                  
               or enjoyment of the condominium for his life.  Until                   
               the third conveyance, March 22, 1999, the decedent was                 
               a tenant in common with his grantees.  As a co-tenant                  
               he had the non-exclusive right to use and enjoy the                    
               property as did all the other co-tenants.  See gener-                  
               ally 20 Am.Jur.2d-Tenancy and Joint Ownership. Sec. 32,                
               41, 42.                                                                
                    The decedent acquired the right to exclusive                      
               possession of the condominium by contract, the parties’                
               Agreement regarding use and payment of expenses * * *                  
               (hereinafter “the Agreement”).  Generally, all co-                     
               tenants are obligated to contribute to the expenses and                
               upkeep of the property and a tenant who pays more than                 
               his pro-rata share is entitled to contribution from the                
               other tenants.  Kline v Kline, 581 A2d 1300, 85 Md. App                
               28, 49 (Md. App. 1991) cert. den. 587 A2d 246, 322 Md.                 
               240.  However, here the parties entered into an Agree-                 
               ment that provided for the decedent’s exclusive use and                
               occupancy of the condominium in return for payment of                  

               11(...continued)                                                       
               period which does not in fact end before his death--                   
                         (1)  the possession or enjoyment of, or the right            
               to the income from, the property * * *                                 





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