Mr. JUSTICE JONES

delivered the opinion of the court:

This case involves an action to quiet title to real property located in Lawrence County, Illinois. Its resolution depends on the judicial construction of language in a conveyance of that property. The case is before us on the pleadings, plaintiffs’ third amended complaint having been dismissed by a final order. The pertinent facts are taken from the pleadings.

On March 18, 1941, W. E. and Jennie Hutton executed a warranty deed in which they conveyed certain land, to be known here as the Hutton School grounds, to the trustees of School District No. 1, the predecessors of the defendants in this action. The deed provided that “this land to be used for school purpose only; otherwise to revert to Grantors herein.” W. E. Hutton died intestate on July 18,1951, and Jennie Hutton died intestate on February 18,1969. The Huttons left as their only legal heir their son Harry E. Hutton.

The property conveyed by the Huttons became the site of the Hutton School. Community Unit School District No. 20 succeeded to the grantee of the deed and held classes in the building constructed upon the land until May 30, 1973. After that date, children were transported to classes held at other facilities operated by the District. The District has used the property since then for storage purposes only.

Earl and Madeline Jacqmain executed a warranty deed on October 9, 1959, conveying to the plaintiffs over 390 acres of land in Lawrence County and which included the 40-acre tract from which the Hutton School grounds were taken. When and from whom the Jacqmains acquired the land is not shown and is of no consequence in this appeal. The deed from the Jacqmains to the plaintiffs excepted the Hutton School grounds, but purported to convey the disputed future interest, with the following language:

*368“Also, except the following tract of land which was on the 18th day of March, 1951, by the said grantors [sic] conveyed to the Trustees of Schools of District No. One (1) of the Town of Allison, in the County of Lawrence and State of Illinois, and described as follows:

[legal description]

and containing one and one-half (Bi) acres, more or less; Reversionary interest to Grantees; 6 e

On May 7, 1977, Harry E. Hutton, son and sole heir of W. E. and Jennie Hutton, conveyed to the plaintiffs all of his interest in the Hutton School land. This document was filed in the recorder’s office of Lawrence County on September 7, 1977. On September 6, 1977, Harry Hutton disclaimed his interest in the property in favor of the defendants. The disclaimer was in the form of a written document entitled “Disclaimer and Release.” It contained the legal description of the Hutton School grounds and recited that Harry E. Hutton disclaimed and released any possibility of reverter or right of entry for condition broken, or other similar interest, in favor of the County Board of School Trustees for Lawrence County, Illinois, successor to the Trustees of School District No. 1 of Lawrence County, Illinois. The document further recited that it was made for the purpose of releasing and extinguishing any right Harry E. Hutton may have had in the “interest retained by W. E. Hutton and Jennie Hutton # e e in that deed to the Trustees of School District No. 1, Lawrence County, Illinois dated March 18,1941, and filed on the same date ” * The disclaimer was filed in the recorder’s office of Lawrence County on October 4, 1977.

The plaintiffs filed a complaint in the circuit court of Lawrence County on April 9, 1974, in which they sought to quiet title to the school property in themselves, by virtue of the interests acquired from the Jacqmains. This complaint was amended but later dismissed on defendants’ motion.

A second amended complaint was filed on September 7, 1977. This alleged that the plaintiffs owned the property through the conveyance from Harry Hutton. The defendants moved to dismiss this complaint because (1) the plaintiffs did not meet the equitable requirements which would entitle them to have title quieted in them, and (2) Harry Hutton had no interest in the school property, as he never acted to re-enter it. The second amended complaint was dismissed on August 17, 1978, by an order which did not specify the reasons for the decision.

The plaintiffs filed a third amended complaint on September 13, 1978. This complaint recited the interests acquired from the Jacqmains and from Harry Hutton. On March 21, 1979, the trial court entered an order dismissing this complaint. In the order the court found that the

“[W]arranty deed dated March 18, 1941, from W.E. Hutton and *369Jennie Hutton to the Trustees of School District No. 1, conveying land here concerned, created a fee simple subject to a condition subsequent followed by the right of entry for condition broken, rather than a determinable fee followed by a possibility of reverter.”

Plaintiffs have perfected an appeal to this court.

The basic issue presented by this appeal is whether the trial court correctly concluded that the plaintiffs could not have acquired any interest in the school property from the Jacqmains or from Harry Hutton. Resolution of this issue must turn upon the legal interpretation of the language contained in the March 18, 1941, deed from W. E. and Jennie Hutton to the Trustees of School District No. 1:

“this land to be used for school purpose only; otherwise to revert to Grantors herein.”

In addition to the legal effect of this language we must consider the alienability of the interest created and the effect of subsequent deeds.

The parties appear to be in agreement that the 1941 deed from the Huttons conveyed a defeasible fee simple estate to the grantee, and gave rise to a future interest in the grantors (see Restatement of Property §153 (1936)), and that it did not convey a fee simple absolute, subject to a covenant. The fact that provision was made for forfeiture of the estate conveyed should the land cease to be used for school purposes suggests that this view is correct. Dunne v. Minsor (1924), 312 Ill. 333, 143 N.E. 842; Newton v. Village of Glen Ellyn (1940), 374 Ill. 50, 27 N.E.2d 821; Restatement of Property §§44, 45 (1936).

The future interest remaining in this grantor or his estate can only be a possibility of reverter or a right of re-entry for condition broken. As neither interest may be transferred by will nor by inter vivos conveyance (Ill. Rev. Stat. 1979, ch. 30, par. 37b), and as the land was being used for school purposes in 1959 when the Jacqmains transferred their interest in the school property to the plaintiffs, the trial court correctly ruled that the plaintiffs could not have acquired any interest in that property from the Jacqmains by the deed of October 9, 1959.

Consequently this court must determine whether the plaintiffs could have acquired an interest in the Hutton School grounds from Harry Hutton. The resolution of this issue depends on the construction of the language of the 1941 deed of the Huttons to the school district. As urged by the defendants, and as the trial court found, that deed conveyed a fee simple subject to a condition subsequent, followed by a right of re-entry for condition broken. As argued by the plaintiffs, on the other hand, the deed conveyed a fee simple determinable followed by a possibility of reverter. In either case, the grantor and his heirs retain an interest in the property which may become possessory if the condition is broken. We *370emphasize here that although section 1 of “An Act relating to Rights of Entry or Re-entry for breach of condition subsequent and possibilities of reverter” effective July 21, 1947 (Ill. v. Stat. 1979, ch. 30, par. 37b) provides that rights of re-entry for condition broken and possibilities of reverter are neither alienable nor devisable, they are inheritable. (Deverick v. Bline (1949), 404 Ill. 302, 89 N.E.2d 43.) The type of interest held governs the mode of reinvestment with title if reinvestment is to occur. If the grantor had a possibility of reverter, he or his heirs become the owner of the property by operation of law as soon as the condition is broken. If he has a right of re-entry for condition broken, he or his heirs become the owner of the property only after they act to retake the property.

It is alleged, and we must accept, that classes were last held in the Hutton School in 1973. Harry Hutton, sole heir of the grantors, did not act to legally retake the premises but instead conveyed his interest in that land to the plaintiffs in 1977. If Harry Hutton had only a naked right of re-entry for condition broken, then he could not be the owner of that property until he had legally re-entered the land. Since he took no steps for a legal re-entry, he had only a right of re-entry in 1977, and that right cannot be conveyed inter vivos. On the other hand, if Harry Hutton had a possibility of reverter in the property, then he owned the school property as soon as it ceased to be used for school purposes. Therefore, assuming (1) that cessation of classes constitutes “abandonment of school purposes” on the land, (2) that the conveyance from Harry Hutton to the plaintiffs was legally correct, and (3) that the conveyance was not pre-empted by Hutton’s disclaimer in favor of the school district, the plaintiffs could have acquired an interest in the Hutton School grounds if Harry Hutton had inherited a possibility of reverter from his parents.

The difference between a fee simple determinable (or determinable fee) and a fee simple subject to a condition subsequent, is solely a matter of judicial interpretation of the words of a grant. (Pfeffer v. Lebanon Land Development Corp. (1977), 46 Ill. App. 3d 186, 360 N.E.2d 1115.) As Blackstone explained, there is a fundamental theoretical difference between a conditional estate, such as a fee simple subject to a condition subsequent, and a limited estate, such as a fee simple determinable.

“A distinction is however made between a condition in deed and a limitation, which Littleton denominates also a condition in law. For when an estate is so expressly confined and limited by the words of it’s [sic] creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation-, as when land is granted to a man, so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 500 £. and the like. In such case the estate determines as soon as the contingency *371happens, (when he ceases to be parson, marries a wife, or has received the 500£.) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 40£. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, etc.) the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heir or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate.” (Emphasis in original.) 2 W. Blackstone, Commentaries *T55.

A fee simple determinable may be thought of as a limited grant, while a fee simple subject to a condition subsequent is an absolute grant to which a condition is appended. In other words, a grantor should give a fee simple determinable if he intends to give property for so long as it is needed for the purposes for which it is given and no longer, but he should employ a fee simple subject to a condition subsequent if he intends to compel compliance with a condition by penalty of a forfeiture. School District No. 6 v. Russell (1964), 156 Colo. 75, 396 P.2d 929.

Following Blackstone’s examples, the Huttons would have created a fee simple determinable if they had allowed the school district to retain the property so long as or while it was used for school purposes, or until it ceased to be so used. Similarly, a fee simple subject to a condition subsequent would have arisen had the Huttons given the land upon condition that or provided that it be used for school purposes. In the 1941 deed, though the Huttons gave the land “to be used for school purpose only, otherwise to revert to Grantors herein,” no words of temporal limitation, or terms of express condition, were used in the grant.

The plaintiffs argue that the word “only” should be construed as a limitation rather than a condition. The defendants respond that where ambiguous language is used in a deed, the courts of Illinois have expressed a constructional preference for a fee simple subject to a condition subsequent. (Storke v. Penn Mutual Life Insurance Co. (1945), 390 Ill. 619, 61 N.E.2d 552.) Both sides refer us to cases involving deeds which contain language analogous to the 1941 grant in this case.

We believe that a close analysis of the wording of the original grant shows that the grantors intended to create a fee simple determinable followed by a possibility of reverter. Here, the use of the word “only” immediately following the grant “for school purpose” demonstrates that the Huttons wanted to give the land to the school district only as long as it was needed and no longer. The language “this land to be used for school purpose only” is an example of a grant which contains a limitation within *372the granting clause. It suggests a limited grant, rather than a full grant subject to a condition, and thus, both theoretically and linguistically, gives rise to a fee simple determinable.

The second relevant clause furnishes plaintiffs’ position with additional support. It cannot be argued that the phrase “otherwise to revert to grantors herein” is inconsistent with a fee simple subject to a condition subsequent. Nor does the word “revert” automatically create a possibility of reverter. But, in combination with the preceding phrase, the provisions by which possession is returned to the grantors seem to trigger a mandatory return rather than a permissive return because it is not stated that the grantor “may” re-enter the land. See City of Urbana v. Solo Cup Co. (1979), 66 Ill. App. 3d 45, 383 N.E.2d 262.

The terms used in the 1941 deed, although imprecise, were designed to allow the property to be used for a single purpose, namely, for “school purpose.” The Huttons intended to have the land back if it were ever used otherwise. Upon a grant of exclusive use followed by an express provision for reverter when that use ceases, courts and commentators have agreed that a fee simple determinable, rather than a fee simple subject to a condition subsequent, is created. (1 Simes & Smith, The Law of Future Interests §286, at 344 n.58 (2d ed. 1956).) Our own research has uncovered cases from other jurisdictions and sources in which language very similar to that in the Hutton deed has been held to create a fee simple determinable:

“[A conveyance] ‘for the use, intent and purpose of a site for a School House * * * [and] whenever the said School District removes the School House from said tract of land or whenever said School House ceases to be used as the Public School House * * * then the said Trust shall cease and determine and the said land shall revert to [the grantor and his heirs.]’ ” (Consolidated School District v. Walter (1954), 243 Minn. 159, 160, 66 N.W.2d 881, 882.)

“ ‘[I]t being absolutely understood that when said land ceases to be used for school purposes it is to revert to the above grantor, his heirs.’ ” (United States v. 1119.15 Acres of Land (E.D. Ill. 1942), 44 F. Supp. 449.)

“ ‘That I, S.S. Gray (Widower), for and in consideration of the sum of Donation to Wheeler School District to be used by said Wheeler Special School District for school and church purposes and to revert to me should school and church be discontinued or moved.’ ” (Williams v. Kirby School District No. 32 (1944), 207 Ark. 458, 461, 181 S.W.2d 488, 490.)

“It is understood and agreed that if the above described land is abandoned by the said second parties and not used for school purposes then the above described land reverts to the party of the *373first part.” (School District No. 6 v. Russell (1964), 156 Colo. 75, 76, 396 P.2d 929, 930.)

“[T]o B and C [trustees of a school district] and their heirs and successors for school purposes and to revert to the grantor when it ceases to be so used.” Restatement of Property §44, comment l, illustration 17V (1936).

Thus, authority from this State and others indicates that the grant in the Hutton deed did in fact create a fee simple determinable. We are not persuaded by the cases cited by the defendants for the terms of conveyance in those cases distinguish them from the facts presented here.

In Board of Education v. Trustees of the First Baptist Church (1872), 63 Ill. 204, the deed provided that the property was to be used for church purposes only, but when it ceased to be so used, the trustees were to pay the grantor $200, and the grantees would then have an absolute title. This is certainly no authority for this case because no interest in the land beyond the receipt of $200 was created in the grantor.

The deed in Sherman v. Town of Jefferson (1916), 274 Ill. 294, 295-96, 113 N.E. 624, 625, stated,

“ ‘This conveyance is made, understood and agreed by and between the parties hereto upon the express condition that the premises conveyed shall be occupied, used and enjoyed for town purposes only, and upon ceasing to be so used and enjoyed by the said party of the second part, in whole or in any part thereof, the conveyance above becomes and remains absolutely void and of no longer force, effect or obligation as against the said party of the first part, his heirs and assigns.’ ”

This conveyance may be distinguished from the Hutton deed because the reversion clause in Sherman provided that the grant would, upon breach of condition, be void only against the grantor. This unusual language is merely another way to state that the grantee may retain possession until the grantor re-enters the property.

The estate created in Latham v. Illinois Central R.R. Co. (1912), 253 Ill. 93, 97 N.E. 254, was held to be a fee simple subject to a condition subsequent. Land was conveyed to a railroad in return for the railroad’s agreement to erect and maintain a passenger depot and a freight depot on the premises. The deed was made to the grantee, “ ‘their successors and assigns forever, for the uses and purposes hereinafter mentioned, and for none other.’ ” (253 Ill. 93, 96.) Those purposes were limited to “ ‘railroad purposes only.’ ” (253 Ill. 93, 96.) The deed provided “that in case of non-user of said premises so conveyed for the uses and purposes aforesaid, that then and in that case the title to said premises shall revert back to [the grantors], their heirs, executors, administrators and assigns.’ ” (253 Ill. 93, 96-97.) The property was granted to the railroad to have and hold *374forever, “ ‘subject, nevertheless, to all the conditions, covenants, agreements and limitations in this deed expressed.’ ” (253 Ill. 93, 97.) The estate in Latham may be distinguished from that created here in that the former was a grant “forever” which was subjected to certain use restrictions while the Hutton deed gave the property to the school district only as long as it could use it.

In Northwestern University v. Wesley Memorial Hospital (1919), 290 Ill. 205, 207, 125 N.E. 13, a conveyance was “made upon the express condition that said Wesley Hospital, the grantee herein, shall erect a hospital building on said lot * * * and that on the failure of said Wesley Hospital to carry out these conditions the title shall revert to Northwestern University.” This language cannot be interpreted as creating anything but a fee simple subject to a condition subsequent, and the court so held.

The defendants also direct our attention to the case of McElvain v. Dorris (1921), 298 Ill. 377, 131 N.E. 608. There, land was sold subject to the following condition: “This tract of land is to be used for mill purposes, and if not used for mill purposes the title reverts back to the former owner.” (298 Ill. 377, 378.) When the mill was abandoned, the heirs of the grantor brought suit in ejectment and were successful. The Supreme Court of Illinois did not mention the possibility that the quoted words could have created a fee simple determinable but instead stated,

“Annexed to the grant there was a condition subsequent, by a breach of which there would be a right of re-entry by the grantor or her heirs at law. [Citations.] A breach of the condition in such a case does not, of itself, determine the estate, but an entry, or some act equivalent thereto, is necessary to revest the estate, and bringing a suit in ejectment is equivalent to such re-entry.” (298 Ill. 377, 379.)

It is urged by the defendants that McElvain v. Dorris stands for the proposition that the quoted language in the deed creates a fee simple subject to a condition subsequent. We must agree with the defendants that the grant in McElvain is strikingly similar to that in this case. However, the opinion in McElvain is ambiguous in several respects. First, that portion of the opinion which states that “Annexed to the grant there was a condition subsequent # # may refer to the provision quoted above, or it may refer to another provision not reproduced in that opinion. Second, even if the court’s reference is to the quoted language, the holding may reflect only the court’s acceptance of the parties’ construction of the grant. (A similar procedure was followed in Trustees of Schools v. Batdorf (1955), 6 Ill. 2d 486, 130 N.E.2d 111, as noted by defendants.) After all, as an action in ejectment was brought in McElvain, the difference between a fee simple determinable and a fee simple subject to a condition subsequent would have no practical effect and the court did not discuss it.

*375To the extent that McElvain holds that the quoted language establishes a fee simple subject to a condition subsequent, it is contrary to the weight of Illinois and American authority. A more appropriate case with which to resolve the problem presented here is North v. Graham (1908), 235 Ill. 178, 85 N.E. 267. Land was conveyed to trustees of a church under a deed which stated that “said tract of land above described to revert to the party of the first part whenever it ceases to be used or occupied for a meeting house or church.” Following an extended discussion of determinable fees, the court concluded that such an estate is legal in Illinois and that the language of the deed did in fact create that estate.

North v. Graham, like this case, falls somewhere between those cases in which appears the classic language used to create a fee simple determinable and that used to create a fee simple subject to a condition subsequent. The language used classically to create a fee simple determinable is “so long as it is used for 9 9 9,” as may be seen in Blackert v. Dugosh (1957), 12 Ill. 2d 171, 145 N.E.2d 606; Carlsen v. Carter (1941), 377 Ill. 484, 36 N.E.2d 740; Pure Oil Co. v. Miller-McFarland Drilling Co. (1941), 376 Ill. 486, 34 N.E.2d 854; Regular Predestinarian Baptist Church v. Parker (1940), 373 Ill. 607, 27 N.E.2d 522; Dees v. Cheuvronts (1909), 240 Ill. 486, 88 N.E. 1011; Danaj v. Anest (1979), 77 Ill. App. 3d 533, 396 N.E.2d 95.

The language used typically to create a fee simple subject to a condition subsequent is, variously, “ ‘provided it be used for 9 9 9’ ” (O’Donnell v. Robson (1909), 239 Ill. 634, 636, 88 N.E. 175); “ ‘that in case of breach in these covenants 9 9 9 said premises shall immediately revert • * °'"(Storke v Penn Mutual Life Insurance Co. (1945), 390 Ill. 619, 621, 61 N.E.2d 552); “ ‘and if this agreement is broken, said land shall revert 9 9 9’” (Wakefield v. VanTassel (1903), 202 Ill. 41, 42, 66 N.E. 830, writ of error dismissed (1904), 192 U.S. 601, 48 L. Ed. 583, 24 S. Ct. 850); “ ‘[i]n the event the [grantee] shall fail to perform 9 9 9 all the above requirements and conditions, all the lands 9 9 9 shall revert 9 9 9’ ” (Gray v. Chicago, Milwaukee & St. Paul Ry. Co. (1901), 189 Ill. 400, 404, 59 N.E. 950).

Although the word “whenever” is used in the North v. Graham deed, it is not found in a granting clause, but in a reverter clause. The court found this slightly unorthodox construction sufficient to create a fee simple determinable, and we believe that the word “only” placed in the granting clause of the Hutton deed brings this case under the rule of North v. Graham.

We hold, therefore, that the 1941 deed from W. E. and Jennie Hutton to the Trustees of School District No. 1 created a fee simple determinable in the trustees followed by a possibility of reverter in the Huttons and their heirs. Accordingly, the trial court erred in dismissing *376plaintiffs’ third amended complaint which followed its holding that the plaintiffs could not have acquired any interest in the Hutton School property from Harry Hutton. We must therefore reverse and remand this cause to the trial court for further proceedings.

We refrain from deciding the following issues: (1) whether the 1977 conveyance from Harry Hutton was legally sufficient to pass his interest in the school property to the plaintiffs, (2) whether Harry Hutton effectively disclaimed his interest in the property in favor of the defendants by virtue of his 1977 disclaimer, and (3) whether the defendants have ceased to use the Hutton School grounds for “school purposes.” See Ballantyne v. Nedrose Public School District No. 4 (N.D. 1970), 177 N.W.2d 551; Craig v. Unknown Heirs (Okla. 1961), 358 P.2d 835; Putney v. School District No. 4 (1934), 215 Wis. 539, 255 N.W. 76.

Reversed and remanded.

KARNS and HARRISON, JJ., concur.

Judgment, Supreme Court, New York County (Saralee Evans, J.), entered July 22, 2002, after a nonjury trial, awarding plaintiff the principal amount of $12,734, and bringing up for review an order, same court and Justice, entered June 24, 2002, which granted defendant’s cross motion for summary judgment to the extent of excluding the value of certain real property owned by defendant from inclusion as an asset available to defray the cost of medical care provided to defendant’s wife, reversed, on the law, without costs, defendant’s cross motion denied and plaintiff’s motion for summary judgment in the amount of $133,094.58, representing the full amount of Medicaid provided to defendant’s wife from December 27, 1993 through August 7, 1995, together with interest at the statutory rate from September 18, 1996, granted. The Clerk is directed to enter judgment accordingly.

The trial court held that the house conveyed to defendant by his father upon the express condition that the father was to live there for the remainder of his life cannot be considered an available resource for purpose of Medicaid reimbursement. Such holding is based on the conclusion that, as the relative responsible for his wife’s care, defendant lacked the right to dispose of the house “at the time the department furnishe[d] the assistance.” However, the only basis for such conclusion is an affidavit of a Nassau County real estate attorney to the effect that there is no market for a remainder interest in the house because “[n]o title company would insure such a conveyance, no lender would make a loan on such a conveyance; and such an investment by a proposed purchaser is so speculative, so uncertain, and so risky in light of the fact that title would be *155uninsurable, that there simply is no market for the sale of such an interest.”

Such affidavit can, at best, be considered an expert opinion to be accepted or rejected by the trier of fact. However, other than stating that, in more than 17 years of practice and 7,000 real estate transactions, and as a regional representative of 12 separate commercial lenders, not a single one of those transactions involved the sale of a remainder interest in real property that was encumbered by a constructive trust, the attorney fails to provide any basis for such opinion. His conclusory opinion was, therefore, without probative value and insufficient to raise a triable issue of fact to defeat plaintiffs motion for summary judgment, let alone warrant granting summary judgment to defendant (see Bean v Ruppert Towers Hous. Co., 274 AD2d 305, 308 [2000]).

On the other hand, plaintiffs motion for summary judgment is supported by defendant’s own budget worksheet, dated February 16, 1994, in which he listed both the value of the house and his share of that value at $205,000. Relying upon the admitted market value of the house in January 1994, multiplied by the applicable percentage indicated by the life estate and remainder interest table published by the Federal Health Care Financing Administration for the age of defendant’s father at the time, plaintiff calculated defendant’s remainder interest in the house to be $152,169.45, which calculation or amount was not contested other than by the conclusory opinion of defendant’s expert.

Such opinion defies common sense and flies in the face of the fairly common practice of purchasing residential properties burdened with various restrictions, including life tenancies. For example, in New York City, it is not uncommon for speculative buyers to purchase apartments already occupied by nonpurchasing, rent controlled or rent stabilized tenants in buildings which have been converted to cooperative ownership.

While our dissenting colleagues agree that defendant’s remainder interest in his father’s home was an available resource, they would remand the matter to determine its value. However, as previously noted, in response to plaintiffs motion for summary judgment, defendant did not contest plaintiff’s calculation of the value of defendant’s remainder interest, but took the now discredited position that such interest cannot be considered an available resource. To remand the matter for further valuation would give defendant the proverbial second bite at the apple. As to the market for remainder interests in single family homes outside New York City, the article alluded to in *156the partial dissent describes life estates similar to the one at issue on this appeal as “the flavor of the month,” does not limit their use to New York City co-ops, and indicates that they are common enough on Long Island to have generated litigation in the Second Department (Bagwell, Life Estates: Latest Legal Fad Gives Title Underwriters Trouble, NYLJ, Feb. 11, 2004, at 5, col 2). Concur—Nardelli, J.P., Andrias and Sullivan, JJ.

Mazzarelli and Lerner, JJ.,

concur in part and dissent in part in a memorandum by Mazzarelli, J., as follows: I agree with the majority that Joseph Mor ello, Jr.’s remainder interest in his father’s home is an asset which should be considered in determining his responsibility for his wife’s Medicaid benefits. However, I would remand for a hearing to determine the value, if any, of that property interest during the relevant period, between December 1993 and August 1995, when defendant’s wife was receiving government assistance (see Matter of Commissioner of Social Servs. v Bernard B., 87 NY2d 61 [1995]).

Plaintiff sets the value of defendant’s remainder interest based upon a March 1996 life estate and remainder interest table, published by the United States Health Care Financing Administration, and relied upon by the New York State Department of Social Services. The table calculates that where, as here, the life tenant was 92 years old on the date of appraisal, which took place in March 1994, the remainder interest is worth 74.2% of the property’s unencumbered market value. The property was assessed to be worth $205,000, and, applying the table, plaintiff asserts that defendant possessed a $152,169.45 remainder interest. Although this table may prove a useful guide, I disagree with the majority’s conclusion that it establishes, as a matter of law, the value of defendant’s remainder interest.

The majority asserts that remanding this case for a valuation of defendant’s remainder interest would unfairly benefit the defendant, because defendant asserted, in response to plaintiffs motion for summary judgment, that his father’s property was not an “available resource.” I disagree.

Remanding the case for consideration of whether there is a viable market for defendant’s remainder interest in a single family home in Nassau County, Long Island, merely recognizes the impact of variables not reflected in plaintiffs table which are integral to an accurate value, if any, of defendant’s remainder interest, at the time his wife was receiving Medicaid. Such variables include the cost to a prospective purchaser of obtaining mortgage and title insurance for property encumbered by a life estate. Accordingly, I would not discard the affidavit of *157plaintiffs expert, an experienced Nassau County real estate attorney, out of hand (see Bagwell, Life Estates: Latest Legal Fad Gives Title Underwriters Trouble, NYLJ, Feb. 11, 2004, at 5, col 2). With respect to the majority’s concern about allowing the defendant undue advantage, it should be noted that defendant had been candid with the agency throughout these proceedings. In fact, he listed the full $205,000 value of his father’s property on his wife’s Medicaid budget worksheet, notwithstanding the fact that this property was encumbered by his father’s life estate.

Finally, the majority has taken judicial notice of the practice in New York City of selling converted co-op apartments to speculators, where the apartments are occupied by nonpurchasing rent controlled or rent stabilized tenants. While this practice exists in New York City, I do not agree that it is determinative of the facts in this case, where the defendant is the proposed seller of a remainder interest in a single family home outside New York City.

Federal regulations expressly provide that <£[i]f [an] individual has the right, authority or power to liquidate the property or his or her share of the property, it is considered a resource. If a property right cannot be liquidated, the property will not be considered a resource” (20 CFR 416.1201 [a] [1]). Because there are outstanding factual issues specific to the liquidity and value of defendant’s interest, which preclude resolution of plaintiff s motion on the extant record, I would remand for further proceedings.

*471OPINION OF THE COURT

Chief Judge Kaye.

This case presents the novel question whether options to purchase commercial property are exempt from the prohibition against remote vesting embodied in New York’s Rule against Perpetuities (EPTL 9-1.1 [b]). Because an exception for commercial options finds no support in our law, we decline to exempt all commercial option agreements from the statutory Rule against Perpetuities.

Here, we agree with the trial court and Appellate Division that the option defendants seek to enforce violates the statutory prohibition against remote vesting and is therefore unenforceable.

I. FACTS

The subject of this proceeding is a two-story building situated on the Broadway block between 94th and 95th Streets on Manhattan’s Upper West Side. In 1978, Broadwest Realty Corporation owned this building, which housed a theater and commercial space. Broadwest had been unable to secure a permanent tenant for the theater — approximately 58% of the total square footage of the building’s floor space (see, Matter of Symphony Space v Tishelman, 60 NY2d 33, 35, n 1). Broadwest also owned two adjacent properties, Pomander Walk (a residential complex) and the Healy Building (a commercial building). Broadwest had been operating its properties at a net loss.

Plaintiff Symphony Space, Inc., a not-for-profit entity devoted to the arts, had previously rented the theater for several one-night engagements. In 1978, Symphony and Broadwest engaged in a transaction whereby Broadwest sold the entire building to Symphony for the below-market price of $10,010 and leased back the income-producing commercial property, excluding the theater, for $1 per year. Broadwest maintained liability for the existing $243,000 mortgage on the property as well as certain maintenance obligations. As a condition of the sale, Symphony, for consideration of $10, also granted Broadwest an option to repurchase the entire building. Notably, the transaction did not involve Pomander Walk or the Healy Building.

The purpose of this arrangement was to enable Symphony, as a not-for-profit corporation, to seek a property tax exemption for the entire building — which constituted a single tax parcel — predicated on its use of the theater. The sale-and-leaseback would thereby reduce Broadwest’s real estate taxes *472by $30,000 per year, while permitting Broadwest to retain the rental income from the leased commercial space in the building, which the trial court found produced $140,000 annually. The arrangement also furthered Broadwest’s goal of selling all the properties, by allowing Broadwest to postpone any sale until property values in the area increased and until the commercial leases expired. Symphony, in turn, would have use of the theater at minimal cost, once it received a tax exemption.

Thus, on December 1, 1978, Symphony and Broadwest — both sides represented by counsel — executed a contract for sale of the property from Broadwest to Symphony for the purchase price of $10,010. The contract specified that $10 was to be paid at the closing and $10,000 was to be paid by means of a purchase-money mortgage.

The parties also signed several separate documents, each dated December 31, 1978: (1) a deed for the property from Broadwest to Symphony; (2) a lease from Symphony to Broad-west of the entire building except the theater for rent of $1 per year and for the term January 1, 1979 to May 31, 2003, unless terminated earlier; (3) a 25-year, $10,000 mortgage and mortgage note from Symphony as mortgagor to Broadwest as mortgagee, with full payment due on December 31, 2003; and (4) an option agreement by which Broadwest obtained from Symphony the exclusive right to repurchase all of the property, including the theater.

It is the option agreement that is at the heart of the present dispute. Section 3 of that agreement provides that Broadwest may exercise its option to purchase the property during any of the following "Exercise Periods”:

"(a) at any time after July 1, 1979, so long as the Notice of Election specifies that the Closing is to occur during any of the calendar years 1987, 1993, 1998 and 2003;

"(b) at any time following the maturity of the indebtedness evidenced by the Note and secured by the Mortgage, whether by acceleration or otherwise;

"(c) during the ninety days immediately following any termination of the Lease by the lessor thereof other than for nonpayment of rent or any termination of the Lease by the lessee thereof * * *

"(d) during the ninety days immediately following *473the thirtieth day after Broadwest shall have sent Symphony a notice specifying a default by Symphony of any of its covenants or obligations under the Mortgage.”

Section 1 states that "Broadwest may exercise its option at any time during any Exercise Period.” That section further specifies that the notice of election must be sent at least 180 days prior to the closing date if the option is exercised pursuant to section 3 (a) and at least 90 days prior to the closing date if exercised pursuant to any other subdivision.

The following purchase prices of the property, contingent upon the closing date, are set forth in section 4: $15,000 if the closing date is on or before December 31, 1987; $20,000 if on or before December 31, 1993; $24,000 if on or before December 31, 1998; and $28,000 if on or before December 31, 2003.

Importantly, the option agreement specifies in section 5 that "Broadwest’s right to exercise the option granted hereby is * * * unconditional and shall not be in any way affected or impaired by Broadwest’s performance or nonperformance, actual or asserted, of any obligation to be performed under the Lease or any other agreement or instrument by or between Broadwest and Symphony,” other than that Broadwest was required to pay Symphony any unpaid rent on the closing date. Finally, section 6 established that the option constituted "a covenant running with the land, inuring to the benefit of heirs, successors and assigns of Broadwest.”

Symphony ultimately obtained a tax exemption for the theater. In the summer of 1981, Broadwest sold and assigned its interest under the lease, option agreement, mortgage and mortgage note, as well as its ownership interest in the contiguous Pomander Walk and Healy Building, to defendants’ nominee for $4.8 million. The nominee contemporaneously transferred its rights under these agreements to defendants Pergola Properties, Inc., Bradford N. Swett, Casandium Limited and Darenth Consultants as tenants in common.

Subsequently, defendants initiated a cooperative conversion of Pomander Walk, which was designated a landmark in 1982, and the value of the properties increased substantially. An August 1988 appraisal of the entire blockfront, including the Healy Building and the unused air and other development rights available from Pomander Walk, valued the property at $27 million assuming the enforceability of the option. By contrast, the value of the leasehold interest plus the Healy Building without the option were appraised at $5.5 million.

*474Due to Symphony’s alleged default on the mortgage note, defendant Swett served Symphony with notice in January 1985 that it was exercising the option on behalf of all defendants. The notice set a closing date of May 6, 1985. Symphony, however, disputed both that it was in default and Swett’s authority to exercise the option for all of the defendants. According to Symphony, moreover, it then discovered that the option agreement was possibly invalid. Consequently, in March 1985, Symphony initiated this declaratory judgment action against defendants, arguing that the option agreement violated the New York statutory prohibition against remote vesting and clogged its equity of redemption under the mortgage.

Defendant Pergola subsequently served Symphony with separate notice of default dated April 4,1985, informing Symphony that it was exercising the option on behalf of all defendants pursuant to sections 1, 3 (b) and 3 (d) of the option agreement and setting the closing date for July 10, 1985. Pergola further notified Symphony that it was alternatively exercising the option under section 3 (a) of the option agreement, which was not contingent upon Symphony’s default, with the closing date scheduled for January 5, 1987. Symphony did not appear for any of the closing dates contained in Swett’s or Pergola’s notices.

A dispute among the defendants over Swett’s authority to serve the initial notice developed into a separate litigation, culminating in the trial court authorizing Pergola to exercise the option on behalf of all defendants. In March 1987, Pergola thus served Symphony with another notice that it was exercising the option pursuant to section 3 (a), with the closing scheduled for September 11, 1987. The trial court’s judgment was stayed, however, and Symphony did not appear at the March closing.

Thereafter, the parties cross-moved for summary judgment in the instant declaratory judgment proceeding. The trial court granted Symphony’s motion while denying that of defendants. In particular, the court concluded that the Rule against Perpetuities applied to the commercial option contained in the parties’ agreement, that the option violated the Rule and that Symphony was entitled to exercise its equitable right to redeem the mortgage. The trial court also dismissed defendants’ counterclaim for rescission of the agreements underlying the transaction based on the parties’ mutual mistake.

In a comprehensive writing by Justice Ellerin, the Appellate Division likewise determined that the commercial option was *475unenforceable under the Rule against Perpetuities and that rescission was inappropriate. The Appellate Division certified the following question to us: "Was the order of the Supreme Court, as affirmed by this Court, properly made?” We conclude that it was and now affirm.

II. STATUTORY BACKGROUND

The Rule against Perpetuities evolved from judicial efforts during the 17th century to limit control of title to real property by the dead hand of landowners reaching into future generations. Underlying both early and modern rules restricting future dispositions of property is the principle that it is socially undesirable for property to be inalienable for an unreasonable period of time. These rules thus seek "to ensure the productive use and development of property by its current beneficial owners by simplifying ownership, facilitating exchange and freeing property from unknown or embarrassing impediments to alienability” (Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, 161, citing De Peyster v Michael, 6 NY 467, 494).

The traditional statement of the common-law Rule against Perpetuities was set forth by Professor John Chipman Gray: "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest” (Gray, The Rule Against Perpetuities § 201, at 191 [4th ed 1942]).

In New York, the rules regarding suspension of the power of alienation and remoteness in vesting — the Rule against Perpetuities — have been statutory since 1830. Prior to 1958, the perpetuities period was two lives in being plus actual periods of minority (see, Real Property Law former § 42). Widely criticized as unduly complex and restrictive, the statutory period was revised in 1958 and 1960, restoring the common-law period of lives in being plus 21 years (see, L 1958, ch 153; L 1960, ch 448).

Formerly, the rule against remote vesting in New York was narrower than the common-law rule, encompassing only particular interests (see, Real Property Law former §§ 46, 50; Buffalo Seminary v McCarthy, 86 AD2d 435, 440, affd 58 NY2d 867). A further 1965 amendment enacted a broad prohibition against remote vesting (see, L 1965, ch 670, § 1). This amendment was intended to make clear that the American common-law rule of perpetuities was now fully in force in New York (see, 1965 NY Legis Ann, at 206-207).

*476New York’s current statutory Rule against Perpetuities is found in EPTL 9-1.1. Subdivision (a) sets forth the suspension of alienation rule and deems void any estate in which the conveying instrument suspends the absolute power of alienation for longer than lives in being at the creation of the estate plus 21 years (see, EPTL 9-1.1 [a] [2]). The prohibition against remote vesting is contained in subdivision (b), which states that "[n]o estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate and any period of gestation involved” (EPTL 9-1.1 [b]). This Court has described subdivision (b) as "a rigid formula that invalidates any interest that may not vest within the prescribed time period” and has "capricious consequences” (Wildenstein & Co. v Wallis, 79 NY2d 641, 647-648). Indeed, these rules are predicated upon the public policy of the State and constitute nonwaivable, legal prohibitions (see, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 161).

In addition to these statutory formulas, New York also retains the more flexible common-law rule against unreasonable restraints on alienation. Unlike the statutory Rule against Perpetuities, which is measured exclusively by the passage of time, the common-law rule evaluates the reasonableness of the restraint based on its duration, purpose and designated method for fixing the purchase price. (See, Wildenstein & Co. v Wallis, 79 NY2d at 648; Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 161-162, supra)

Against this background, we consider the option agreement at issue.

III. VALIDITY OF THE OPTION AGREEMENT

Defendants proffer three grounds for upholding the option: that the statutory prohibition against remote vesting does not apply to commercial options; that the option here cannot be exercised beyond the statutory period; and that this Court should adopt the "wait and see” approach to the Rule against Perpetuities. We consider each in turn.

A. Applicability of the Rule to Commercial Options

Under the common law, options to purchase land are subject to the rule against remote vesting (see, Simes, Future Interests § 132 [2d ed 1966]; Simes and Smith, Future Interests § 1244 [2d ed]; Leach, Perpetuities in a Nutshell, 51 Harv L Rev 638, 660; see also, London & S. W. Ry. Co. v Gomm, 20 Ch D 562). *477Such options are specifically enforceable and give the option holder a contingent, equitable interest in the land (Dukeminier, A Modem Guide to Perpetuities, 74 Cal L Rev 1867, 1908; Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 65 Harv L Rev 721, 736-737). This creates a disincentive for the landowner to develop the property and hinders its alienability, thereby defeating the policy objectives underlying the Rule against Perpetuities (see, Dukeminier, A Modern Guide to Perpetuities, 74 Cal L Rev 1908; 5A Powell, Real Property ¶ 771 [1]).

Typically, however, options to purchase are part of a commercial transaction. For this reason, subjecting them to the Rule against Perpetuities has been deemed "a step of doubtful wisdom” (Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 65 Harv L Rev 737; see also, Dukeminier, A Modern Guide to Perpetuities, 74 Cal L Rev 1908; Note, Options and the Rule Against Perpetuities, 13 U Fla L Rev 214, 214-215). As one vocal critic, Professor W. Barton Leach, has explained,

"[t]he Rule grew up as a limitation on family dispositions; and the period of lives in being plus twenty-one years is adapted to these gift transactions. The pressures which created the Rule do not exist with reference to arms-length contractual transactions, and neither lives in being nor twenty-one years are periods which are relevant to business men and their affairs” (Leach, Perpetuities: New Absurdity, Judicial and Statutory Correctives, 73 Harv L Rev 1318, 1321-1322).

Professor Leach, however, went on to acknowledge that, under common law, "due to an overemphasis on concepts derived from the nineteenth century, we are stuck with the application of the Rule to options to purchase,” urging that "this should not be extended to other commercial transactions” (id., at 1322; see also, Simes and Smith, Future Interests § 1244).

It is now settled in New York that, generally, EPTL 9-1.1 (b) applies to options. In Buffalo Seminary v McCarthy (86 AD2d 435, supra), the court held that an unlimited option in gross to purchase real property was void under the statutory rule against remote vesting, and we affirmed the Appellate Division decision on the opinion of then-Justice Hancock (58 NY2d 867). Since then, we have reiterated that options in real estate are subject to the statutory rule (see, e.g., Wildenstein & Co. v Wallis, 79 NY2d at 648, supra).

*478Although the particular option at issue in Buffalo Seminary was part of a private transaction between neighboring landowners, the reasoning employed in that case establishes that EPTL 9-1.1 (b) applies equally to commercial purchase options. In reaching its conclusion in Buffalo Seminary, the court explained that, prior to 1965, New York’s narrow statutory rule against remote vesting did not encompass options (86 AD2d at 443). A review of the history of the broad provision enacted in 1965, however, established that the Legislature specifically intended to incorporate the American common-law rules governing perpetuities into the New York statute (id., at 441-442).

Because the common-law rule against remote vesting encompasses purchase options that might vest beyond the permissible period, the court concluded that EPTL 9-1.1 (b) necessarily encompasses such options (id., at 443). Inasmuch as the common-law prohibition against remote vesting applies to both commercial and noncommercial options, it likewise follows that the Legislature intended EPTL 9-1.1 (b) to apply to commercial purchase options as well.

Consequently, creation of a general exception to EPTL 9-1.1 (b) for all purchase options that are commercial in nature, as advocated by defendants, would remove an entire class of contingent future interests that the Legislature intended the statute to cover. While defendants offer compelling policy reasons — echoing those voiced by Professor Leach — for refusing to apply the traditional rule against remote vesting to these commercial option contracts, such statutory reformation would require legislative action similar to that undertaken by numerous other State lawmakers (see, e.g., Cal Prob Code § 21225; Fla Stat Annot ch 689.225; Ill Stat Annot ch 765, para 305/4).

Our decision in Metropolitan Transp. Auth. v Bruken Realty Corp. (67 NY2d 156, supra) is not to the contrary. In Bruken, we held that EPTL 9-1.1 (b) did not apply to a preemptive right in a "commercial and governmental transaction” that lasted beyond the statutory perpetuities period. In doing so, we explained that, unlike options, preemptive rights (or rights of first refusal) only marginally affect transferability:

"An option grants to the holder the power to compel the owner of property to sell it whether the owner is willing to part with ownership or not. A preemptive right, or right of first refusal, does not *479give its holder the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the party holding the preemptive right so that he may meet a third-party offer or buy the property at some other price set by a previously stipulated method” (id., at 163).

Enforcement of the preemptive right in the context of the governmental and commercial transaction, moreover, actually encouraged the use and development of the land, outweighing any minor impediment to alienability (id., at 165-166).

Bruken merely recognized that the Legislature did not intend EPTL 9-1.1 (b) to apply to those contingent future interests in real property that encourage the holder to develop the property by insuring an opportunity to benefit from the improvements and to recapture any investment (see Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 165; Morrison v Piper, 77 NY2d 165, 170). In these limited circumstances, enforcement would promote the purposes underlying the rule.

Bruken, then, did not create a sweeping exception to EPTL 9-1.1 (b) for commercial purchase options. Indeed, we have since emphasized that options to purchase are to be treated differently than preemptive rights, underscoring that preemptive rights impede alienability only minimally whereas purchase options vest substantial control over the transferability of property in the option holder (see, Wildenstein & Co. v Wallis, 79 NY2d at 648, supra; Morrison v Piper, 77 NY2d at 169-170, supra). We have also clarified that even preemptive rights are ordinarily subject to the statutory rule against remote vesting (see, Morrison v Piper, 77 NY2d 165, supra). Only where the right arises in a governmental or commercial agreement is the minor restraint on transferability created by the preemptive right offset by the holder’s incentive to improve the property.

Here, the option agreement creates precisely the sort of control over future disposition of the property that we have previously associated with purchase options and that the common-law rule against remote vesting — and thus EPTL 9-1.1 (b) — seeks to prevent. As the Appellate Division explained, the option grants its holder absolute power to purchase the property at the holder’s whim and at a token price set far below market value. This Sword of Damocles necessarily discourages the property owner from investing in improvements to the property. Furthermore, the option’s existence significantly impedes the owner’s ability to sell the property to a third party, as a practical matter rendering it inalienable.

*480That defendants, the holder of this option, are also the lessees of a portion of the premises does not lead to a different conclusion here.

Generally, an option to purchase land that originates in one of the lease provisions, is not exercisable after lease expiration, and is incapable of separation from the lease is valid even though the holder’s interest may vest beyond the perpetuities period (see, Berg, Long-Term Options and the Rule Against Perpetuities, 37 Cal L Rev 1, 21; Leach, Perpetuities: New Absurdity, Judicial and Statutory Correctives, 73 Harv L Rev 1320; Simes and Smith, Future Interests § 1244). Such options— known as options "appendant” or "appurtenant” to leases— encourage the possessory holder to invest in maintaining and developing the property by guaranteeing the option holder the ultimate benefit of any such investment. Options appurtenant thus further the policy objectives underlying the rule against remote vesting and are not contemplated by EPTL 9-1.1 (b) (see, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 165, supra; see also, Buffalo Seminary v McCarthy, 86 AD2d at 441, n 5, supra).

To be sure, the option here arose within a larger transaction that included a lease. Nevertheless, not all of the property subject to the purchase option here is even occupied by defendants. The option encompasses the entire building — both the commercial space and the theater — yet defendants are leasing only the commercial space. With regard to the theater space, a disincentive exists for Symphony to improve the property, since it will eventually be claimed by the option holder at the predetermined purchase price.

Furthermore, the option is not contained in the lease itself, but in a separate agreement. Indeed, section 5 of the option agreement specifies that the right to exercise the option is wholly independent from the lease, stating that it "shall not be in any way affected or impaired by * * * performance or nonperformance, actual or asserted, of any obligation to be performed under the Lease or any other agreement.” The duration of the option, moreover, exceeds the term of the lease. Consequently, defendants could compel Symphony to sell them the property even after they have ceased possession as lessee.

Put simply, the option here cannot qualify as an option appurtenant and significantly deters development of the property. If the option is exercisable beyond the statutory perpetuities period, refusing to enforce it would thus further the *481purpose and rationale underlying the statutory prohibition against remote vesting.

B. Duration of the Option Agreement

1. Duration Under Section 3 (a) of the Agreement

Defendants alternatively claim that section 3 (a) of the agreement does not permit exercise of the option after expiration of the statutory perpetuities period. According to defendants, only the possible closing dates fall outside the permissible time frame.

Where, as here, the parties to a transaction are corporations and no measuring lives are stated in the instruments, the perpetuities period is simply 21 years (see, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 161, supra). Section 1 of the parties’ agreement allows the option holder to exercise the option "at any time during any Exercise Period” set forth in section three. Section 3 (a), moreover, expressly provides that the option may be exercised "ai any time after July 1, 1979,” so long as the closing date is scheduled during 1987, 1993, 1998 or 2003.

Even factoring in the requisite notice, then, the option could potentially be exercised as late as July 2003 — more than 24 years after its creation in December 1978. Defendants’ contention that section 3 (a) does not permit exercise of the option beyond the 21-year period is thus contradicted by the plain language of the instrument.

Nor can EPTL 9-1.3 — the "saving statute” — be invoked to shorten the duration of the exercise period under section 3 (a) of the agreement. That statute mandates that, "[ujnless a contrary intention appears,” certain rules of construction govern with respect to any matter affecting the Rule against Perpetuities (EPTL 9-1.3 [a]). The specified canons of construction include that "[i]t shall be presumed that the creator intended the estate to be valid” (EPTL 9-1.3 [b]) and "[w]here the duration or vesting of an estate is contingent upon * * * the occurrence of any specified contingency, it shall be presumed that the creator of such estate intended such contingency to occur, if at all, within twenty-one years from the effective date of the instrument creating such estate” (EPTL 9-1.3 [d]).

By presuming that the creator intended the estate to be valid, the statute seeks to avoid annulling dispositions due to inadvertent violations of the Rule against Perpetuities. The provisions of EPTL 9-1.3, however, are merely rules of construe*482tian. While the statute obligates reviewing courts, where possible, to avoid constructions that frustrate the parties’ intended purposes (see, Morrison v Piper, 77 NY2d 165, 173-174, supra), it does not authorize courts to rewrite instruments that unequivocally allow interests to vest outside the perpetuities period (compare, EPTL 9-1.2 [reducing age contingency to 21 years, where interest is invalid because contingent on a person reaching an age in excess of 21 years]).

Indeed, by their terms, the rules of construction in EPTL 9-1.3 apply only if "a contrary intention” does not appear in the instrument. Thus, as the Practice Commentary explains, "[t]he court cannot validate an unambiguous disposition on the basis of the grantor’s probable intent, but where construction is needed [subd (b)] will be useful in helping to establish the creator’s intent” (Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 9-1.3, at 543).

For example, where a deed contains contradictory phrases, one of which is valid under the Rule (see, Morrison v Piper, 77 NY2d 165, 173-174, supra), or where one of two possible interpretations of a term in an agreement would comply with the Rule (see, Payne v Palisades Interstate Park Commn., 204 AD2d 787), the court will adopt the construction validating the disposition (see also, Restatement of Property § 375 [1944]). By contrast, an option containing no limitation in duration demonstrates the parties’ intent that it last indefinitely, and EPTL 9-1.3 does not permit "an extensive rewriting of the option agreement * * * so as to make it conform to the permissible period” (see, Buffalo Seminary v McCarthy, 86 AD2d at 446, supra).

The unambiguous language of the agreement here expresses the parties’ intent that the option be exercisable "at any time” during a 24-year period pursuant to section 3 (a). The section thus does not permit a construction that the parties intended the option to last only 21 years.

Given the contrary intention manifested in the instrument itself, the saving statute is simply inapplicable.

2. Duration Under Sections 3 (b)-(d) of the Agreement

Section 3 (b), (c) and (d) of the agreement also allow the option to be exercised after the 21-year perpetuities period, which would expire in December 1999.

Section 3 (b) authorizes the option to be exercised "at any time” following the maturity of the mortgage note. The only *483limit on duration is found in section 4, which designates December 31, 2003, to be the latest possible closing date. The option could thus be exercised until October 2003 pursuant to section 3 (b).

Section 3 (c) and (d) each permits exercise of the option for a defined period following a specified contingency. Section 3 (c) is contingent upon termination of the lease; section 3 (d) is contingent upon Symphony’s default on the mortgage. Neither the lease nor the mortgage, however, expires until a date in 2003. The lease could therefore be terminated, or Symphony could default on the mortgage, some time prior to 2003 but after the 21-year period lapses in December 1999. Defendants, in turn, could potentially exercise the option during this interval.

Defendants urge that, under EPTL 9-1.3 (b), (d), we must presume the parties expected these contingencies to occur, if at all, within the 21-year period. A contrary intention, however, appears in the agreement itself. By specifying in section 4 that the closing date could be scheduled as late as December 31, 2003, the parties manifested their expectation that the contingency might occur and the option might be exercised as late as October 2003, well beyond December 1999.

Again, EPTL 9-1.3 (b), (d) cannot "save” these provisions.

C. "Wait and See” Approach

Defendants next urge that we adopt the "wait and see” approach to the Rule against Perpetuities: an interest is valid if it actually vests during the perpetuities period, irrespective of what might have happened (see, Dukeminier, A Modern Guide to Perpetuities, 74 Cal L Rev 1867, 1880). The option here would survive under the "wait and see” approach since it was exercised by 1987, well within the 21-year limitation.

This Court, however, has long refused to "wait and see” whether a perpetuities violation in fact occurs. As explained in Matter of Fischer (307 NY 149, 157), "[i]t is settled beyond dispute that in determining whether a will has illegally suspended the power of alienation, the courts will look to what might have happened under the terms of the will rather than to what has actually happened since the death of the testator” (see also, Matter of Roe, 281 NY 541, 547-548).

The very language of EPTL 9-1.1, moreover, precludes us from determining the validity of an interest based upon what actually occurs during the perpetuities period. Under the statutory rule against remote vesting, an interest is invalid "unless it must vest, if at all, not later than twenty-one years after one *484or more lives in being” (EPTL 9-1.1 [b] [emphasis added]). That is, an interest is void from the outset if it may vest too remotely (see, Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 9-1.1, at 481; see also, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 163, supra ["(t)he validity of the provision must be judged by the circumstances existing at the time of the grant”]). Because the option here could have vested after expiration of the 21-year perpetuities period, it offends the Rule.

We note that the desirability of the “wait and see” doctrine has been widely debated (see, 5A Powell, Real Property ¶ 827F [1], [3]; see also, Waggoner, Perpetuity Reform, 81 Mich L Rev 1718 [describing “wait and see” as “(t)he most controversial of the reform methods”]). Its incorporation into EPTL 9-1.1, in any event, must be accomplished by the Legislature, not the courts.

We therefore conclude that the option agreement is invalid under EPTL 9-1.1 (b). In light of this conclusion, we need not decide whether the option violated Symphony’s equitable right to redeem the mortgage.

IV. REMEDY

As a final matter, defendants argue that, if the option fails, the contract of sale conveying the property from Broad-west to Symphony should be rescinded due to the mutual mistake of the parties. We conclude that rescission is inappropriate and therefore do not pass upon whether Broadwest’s claim for rescission was properly assigned to defendant Pergola.

A contract entered into under mutual mistake of fact is generally subject to rescission (see, Matter of Gould v Board of Educ., 81 NY2d 446, 453). CPLR 3005 provides that when relief against mistake is sought, it shall not be denied merely because the mistake is one of law rather than fact. Relying on this provision, defendants maintain that neither Symphony nor Broad-west realized that the option violated the Rule against Perpetuities at the time they entered into the agreement and. that both parties intended the option to be enforceable.

CPLR 3005, however, does not equate all mistakes of law with mistakes of fact (see, Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 427). Rather, the provision *485"removes technical objections in instances where recoveries can otherwise be justified by analogy with mistakes of fact” (id.). Indeed, this Court has held that the predecessor statute, Civil Practice Act § 112-f, did not mandate the court to grant relief where taxes had been paid on the assumption that a taxing statute subsequently found to be unconstitutional was valid (id.). Likewise, CPLR 3005 "does not permit a mere misreading of the law by any party to cancel an agreement” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3005, at 621).

Here, the parties’ mistake amounts to nothing more than a misunderstanding as to the applicable law, and CPLR 3005 does not direct undoing of the transaction (cf., Gimbel Bros. v Brook Shopping Ctrs., 118 AD2d 532 [lack of diligence in determining legal obligations under contract did not entitle party to restitution on the ground that it acted under a mistake of law]).

The remedy of rescission, moreover, lies in equity and is a matter of discretion (Rudman v Cowles Communications, 30 NY2d 1, 13). Defendants’ plea that the unenforceability of the option is contrary to the intent of the original parties ignores that the effect of the Rule against Perpetuities — which is a statutory prohibition, not a rule of construction — is always to defeat the intent of parties who create a remotely vesting interest. As explained by the Appellate Division, there is "an irreconcilable conflict in applying a remedy which is designed to void a transaction because it fails to carry out the parties’ true intent to a transaction in which the mistake made by the parties was the application of the Rule against Perpetuities, the purpose of which is to defeat the intent of the parties” (214 AD2d 66, 80).

The Rule against Perpetuities reflects the public policy of the State. Granting the relief requested by defendants would thus be contrary to public policy, since it would lead to the same result as enforcing the option and tend to compel performance of contracts violative of the Rule. Similarly, damages are not recoverable where options to acquire real property violate the Rule against Perpetuities, since that would amount to giving effect to the option (see, 5A Powell, Real Property ¶ 771 [3]).

Accordingly, the order of the Appellate Division should be *486affirmed, with costs, and the certified question answered in the affirmative.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, etc.

Green, J.

The primary issue presented by this appeal is whether a tenant in common who refuses to join in a lease executed by the other tenant in common is entitled to eject the lessee.

Joel Carr and his father, George Carr, now deceased, owned a parcel of land in Lincoln County as tenants in common. From 1974 through 1986 the Carrs leased the land to Richard Deking pursuant to a year-to-year oral agreement receiving one-third of the annual crop as rent. The Carrs paid for one-third of the fertilizer. In 1986, Joel Carr informed Mr. Deking he wanted cash rent beginning with the 1987 crop year. Mr. Deking was not receptive to this proposal.

*882In February 1987 Joel Carr wrote a letter to Mr. Deking to determine if he wanted to continue leasing the property. Mr. Deking did not respond. Instead he discussed the lease with George Carr. On February 18 Joel Carr went to his father's home and found Mr. Deking there discussing a possible 5-year lease. Joel Carr again indicated he wanted cash rent. Later that day, unbeknownst to Joel Carr, Mr. Deking and George Carr executed a written 10-year crop-share lease at the office of Mr. Deking's attorney. Under this lease, Mr. Deking agreed to pay all fertilizer costs. Joel Carr neither consented to nor ratified this lease and never authorized George Carr to act on his behalf.

In April Joel Carr gave notice to Mr. Deking that his tenancy would terminate at the end of the 1987 crop year. Mr. Deking responded that he would retain possession pursuant to the written lease with George Carr. In July Joel Carr commenced this action to declare that no valid lease existed, Mr. Deking had no right to farm the land and he should be required to vacate the land at the end of the 1987 crop year.

On August 21 Mr. Deking moved for summary judgment. He contended a lessee of one tenant in common cannot be ousted by the other tenant in common; and, therefore, Mr. Deking should be deemed a tenant in common with Joel Carr for the duration of the 10-year lease or until the premises are partitioned. Joel Carr also moved for summary judgment declaring the Deking-George Carr lease terminated. Additionally, he claimed his affidavit established an issue of fact as to whether George Carr had the mental capacity to enter into the lease. George Carr was never named as a party to this lawsuit. The court granted Mr. Deking's motion for summary judgment on October 7.

Before the judgment was formally entered, Joel Carr moved to amend his complaint to seek the right to lease his interest in the land to someone other than Mr. Deking if the lease was declared valid. He also sought a full one-third of the crop as rent should he acquiesce in the lease. On November 24, Joel Carr's motions were denied and he was *883granted as rental one-sixth of the crop grown on the land and one-sixth of a government conservation payment, but he was required to reimburse Mr. Deking for one-sixth of the fertilizer costs. Summary judgment was then entered declaring the lease valid as to all of the land for 10 years or until partition occurs. The court granted Mr. Deking's motion to strike portions of Joel Carr's affidavit as conclusionary statements about George Carr's mental capacity.

In reviewing a summary judgment, this court engages in the same inquiry as the trial court. Summary judgment under CR 56(c) can be granted only if the pleadings and depositions, together with affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). All facts submitted and all reasonable inferences must be considered in the light most favorable to the nonmoving party. Wilson, at 437. Summary judgment should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974).

First, Joel Carr contends the court erred in refusing to eject Mr. Deking from the property on any of three bases: (1) He did not authorize or ratify the lease and, therefore, is not bound by it; (2) Mr. Deking is a stranger to the common title, Craver v. Mossbach, 57 Wash. 662, 107 P. 1037, 109 P. 1016 (1910); Allen v. Higgins, 9 Wash. 446, 37 P. 671 (1894); and (3) the rights of Mr. Deking as lessee are subordinate to those of a nonjoining tenant in common. Hamilton v. Johnson, 137 Wash. 92, 241 P. 672 (1925). He argues public policy should prevent prospective lessees from going behind the back of one tenant in common to obtain a more favorable lease from the other.1

*884On the other hand, it is Mr. Deking's position that George Carr could lawfully enter into a lease with respect to his own undivided one-half interest in the property, and Joel Carr was not entitled to bring an ejectment action to which George Carr did not agree. Johnston v. De Lay, 63 Nev. 1, 158 P.2d 547, 161 P.2d 350 (1945). He asserts the proper remedy is partition, not ejectment.

It is well settled that each tenant in common of real property may use, benefit and possess the entire property subject only to the equal rights of cotenants. Rayonier, Inc. v. Polson, 400 F.2d 909, 919 (9th Cir. 1968); De La Pole v. Lindley, 131 Wash. 354, 358, 230 P. 144 (1924); 86 C.J.S. Tenancy in Common § 112, at 518 (1954 & Supp. 1988); 4A R. Powell, Real Property ¶ 603[1], at 50-14 (1986 & Supp. 1988); see Comment, The Inter Vivos Rights of Cotenants Inter Se, 37 Wash. L. Rev. 70 (1962). Thus, a cotenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. The nonjoining cotenant is not bound by this lease of the common property to third persons. Reinhart v. Centennial Flouring Mills Co., 6 Wn.2d 620, 623-24, 108 P.2d 377 (1940); Tungsten Prods., Inc. v. Kimmel, 5 Wn.2d 572, 575, 105 P.2d 822 (1940); 86 C.J.S. § 113, at 519. The lessee "steps into the shoes" of the leasing cotenant and becomes a tenant in common with the other owners for the duration of the lease. De La Pole, at 358; 86 C.J.S. § 113(f), at 521; see Comment, 37 Wash. L. Rev. at 75. A nonjoining tenant may not demand exclusive possession as against the lessee, but may only demand to be let into copossession. Johnston v. De Lay, 158 P.2d at 551-52 (citing De La Pole v. Lindley, supra); Davis v. Shawler, 214 Kan. 501, 520 P.2d 1270, 1276 (1974); 86 C.J.S. § 112, at *885521; 3 G. Thompson, Real Property § 1071, at 259 (1980 repl.).

Applying these principles, we find Joel Carr is not entitled to eject Mr. Deking from the property. The proper remedy is partition and until that occurs, Mr. Deking is entitled to farm the land under the lease. There is no indication that this property is not amenable to physical partition. Joel Carr clearly has the right to that remedy. See Schultheis v. Schultheis, 36 Wn. App. 588, 675 P.2d 634, review denied, 101 Wn.2d 1016 (1984); Hegewald v. Neal, 28 Wn. App. 783, 626 P.2d 535, review denied, 95 Wn.2d 1029 (1981), cert. denied, 455 U.S. 944 (1982); RCW 7.52-.010. Joel Carr cites no authority and none has been found which would render the lease ineffective as between the estate of George Carr and Mr. Deking. The cases upon which Joel Carr relies are distinguishable.2

Second, Joel Carr contends the court erred in striking from his affidavit his lay opinions which purport to raise an issue of fact concerning George Carr's mental capacity to enter into the lease. He requests this court to be lenient in considering this affidavit in opposition to summary judgment.3 Breit v. St. Luke's Mem. Hosp., 49 Wn. App. 461, 743 P.2d 1254 (1987). He also argues the court abused its discretion in denying a continuance to produce additional evidence on this issue. Cofer v. County of Pierce, 8 Wn. App. 258, 505 P.2d 476 (1973). We find no error.

*886Lay opinion on the issue of mental responsibility of another is permitted so long as it is based on facts personally observed by the witness. State v. Riggs, 32 Wn.2d 281, 201 P.2d 219 (1949); State v. Crenshaw, 27 Wn. App. 326, 332-33, 617 P.2d 1041 (1980), aff'd, 98 Wn.2d 789, 659 P.2d 488 (1983); 5A K. Tegland, Wash. Prac. § 287, at 13-14 (2d ed. 1982). However, "unsupported conclusional statements cannot be considered by a court in a motion for summary judgment." Mansfield v. Holcomb, 5 Wn. App. 881, 886, 491 P.2d 672 (1971); Brown v. Child, 3 Wn. App. 342, 343, 474 P.2d 908 (1970). See also Hash v. Children's Orthopedic Hosp. & Med. Ctr., 49 Wn. App. 130, 133, 741 P.2d 584 (1987), aff'd, 110 Wn.2d 912, 757 P.2d 507 (1988).

Joel Carr's affidavit states George Carr's mental capacity had failed substantially over the last several years. It also states that on the day the lease was signed George Carr appeared confused as to what to do with the property because he was first considering a 5-year lease and later that same day signed a 10-year lease. Neither of these statements tend to prove or disprove the capacity to contract. George Carr may have changed his mind during the course of the day—something he was entitled to do with respect to his undivided one-half interest. We cannot consider Joel Carr's conclusion that his father did not have the capacity to enter into the lease because it is unsupported by the assertions in the affidavit. We note the new lease shifted fertilizer costs to Mr. Deking from the shared cost arrangement in prior years. We find no error.4

Neither did the court abuse its discretion in refusing to grant a continuance. A continuance may be granted to a party who knows of the existence of a material witness and shows good reason why the affidavit of that witness cannot be obtained in time for summary judgment proceedings. *887Cofer v. County of Pierce, supra; CR 56(f). Joel Carr did not satisfy this criterion.

Finally, Joel Carr moved to amend his complaint and for reconsideration or clarification of his relationship with Mr. Deking pending partition. The court denied the motions to amend and to reconsider, but clarified the parties' relationship by ruling that Joel Carr was entitled to one-sixth of the crop, one-sixth of the government conservation payment and was obligated to reimburse Mr. Deking for one-sixth of the fertilizer costs. Joel Carr claims this was error. His challenge is directed to the requirement he pay fertilizer costs when the lease with George Carr required that Mr. Deking pay all such costs. He also argues the court improperly exceeded his request by determining the crop and conservation payment share.

In view of our holding that the trial court properly denied Joel Carr's effort to eject Mr. Deking, Joel Carr is entitled to the benefit of the Deking-George Carr lease, at his election, until a partition of the property occurs. However, Joel Carr cannot claim the benefits contained in the Deking-George Carr lease without also accepting the other terms of that lease. Consequently, we remand to the trial court to determine Joel Carr's election choice. If he elects to be governed until partition by the prior oral lease with Mr. Deking, then the trial court's ruling is affirmed. If Joel Carr elects to be governed until partition by the DekingGeorge Carr lease, then the judgment shall be so modified by the trial court.

Affirmed in part and remanded for further proceedings.

Thompson, C.J., and Munson, J., concur.

Reconsideration denied January 26, 1989.

Review denied by Supreme Court May 9, 1989.

Lewis, Chief Justice:

Appeal is from a judgment of the lower court denying partition of a tract of land among tenants in common on the ground that one of the cotenants and his heirs had held the land adversely for over twenty (20) years so as to constitute an ouster of the other cotenants.

This is an equity matter, and the appeal is from eoncurrent findings by the Special Referee and the Circuit Judge. The extent of our review is accordingly governed by the well settled principle that concurrent findings of the Special Referee and Trial Judge will not be disturbed by this Court unless found to be without evidentiary support or against the clear preponderance of the evidence. Ex Parte Guaranty Bank and Trust Company, 255 S.C. 106, 177 S. E. (2d) 358.

The lands in issue were owned by Joseph Mack who died in 1913, leaving a will in which he devised the property to his five (5) children: York Mack, Sr., John Mack, Peter Mack, Henry Mack, and Rosa Mack Felder, as tenants in common. All of the children of Joseph Mack are deceased, with no record of any probate of their interests in the land.

*329Henry Mack apparently left children, but none of these children or their heirs appear as parties to this action and are not mentioned in the referee’s report.

After the death of their father and prior to 1935, York, Sr., Peter, and John Mack lived on the property in their respective homes which each had constructed on separate portions of the land. Prior to 1935, John Mack died without issue; and Peter Mack moved to Buffalo, N. Y., never returning to live on the property. Peter also died without issue. Rosa Mack Felder had married and resided in a community nearby.

After Peter Mack left the property, York Mack, Sr., moved his family into one of his brother’s home and began cultivating the entire tract of land. He and his descendants have occupied the land since that time and his descendants now claim absolute ownership through adverse possession. This claim was upheld by the lower court and is challenged in this appeal. We think the lower court was in error and, therefore, reverse.

York Mack, Sr., occupied and farmed the tract of land until his death in 1945. Witnesses from the community testified that they knew it as the “York Mack place.” After the death of York Mack, Sr., his widow, Louvenia, and son continued to live on the land, renting portions thereof and retaining the proceeds. Later, Louvenia’s daughter, Rosenna Mack, and granddaughter Joanne Nelson, lived with her. They paid all taxes on the land and retained all proceeds from its use. Some years before her death Louvenia Mack moved to Fayetteville, North Carolina. Rosenna Mack and her daughter Joanne remained on the land until fire destroyed the house in the mid 1960’s, at which point they moved into Manning, South Carolina, leaving the land unoccupied.

In 1968 or 1969, Louvenia Mack and eight (8) of her children executed a deed to Society Hill AME Church purporting to convey to the church a portion of the subject lands. After Louvenia’s death, eight of the York Mack children executed deeds purporting to convey a portion of the land to Billie S. Fleming who has been made a party to this action. All of the foregoing deeds recognize the existence of other heirs by reciting that one of the boundaries to the parcel sold is adjoining lands “of the heirs of Joseph Mack.”

*330There is testimony by Joanne Nelson, granddaughter of Lovenia Mack, that she lived on the land for a number of years with her grandmother and that there would never have been any objection to plaintiff-appellant or any other heirs of Joseph Mack coming upon and using the property.

Rosa Mack Felder apparently had eight (8) children, of whom Mack Felder, the plaintiff-appellant is one. There is no testimony to show when Rosa left the property, but the indications are that she and her family resided in a nearby community on lands owned by her husband.

The referee and trial judge held that the respondents, who are lineal descendants of York Mack, Sr. (son of Joseph Mack), had been in continuous and exclusive possession of the subject land for more than thirty-seven (37) years so that ouster of the other cotenants could be presumed, thereby vesting sole title to the lands in the lineal descendents of York Mack, Sr. The lower court apparently found that the ouster took place in 1935 when York Mack, Sr., began occupying and cultivating the entire tract of land. The question to be decided is whether the foregoing findings are against the clear preponderance of the evidence.

The principles governing the resolution of conflicting claims of these cotenants to the possession and ownership of the common property are well established. The possession of one tenant in common is the possession of all and, in order for one tenant to establish title against a cotenant by adverse possession, he must overcome the strong presumption that he holds possession in recognition of the cotenancy. Wells v. Coursey, 197 S. C. 483, 489, 15 S. E. (2d) 752. In Wells, the court set forth the nature of the occupancy necessary to establish adverse possession against a cotenant as follows:

In order that one of several cotenants may acquire title by adverse possession as against the others, his possession must be such an actual, open, notorious, exclusive and hostile character as to amount to an ouster to the other cotenants____The acts relied on to establish an ouster must be of an unequivocal nature, and so distinctly hostile to the rights of the other cotenants that the intention to disseize is clear and unmistakable.

*331The record shows that York Mack occupied the land along with two of his brothers until shortly before 1935. He began his sole occupancy when one brother died and the other moved out of the State. There is no fact or circumstance to indicate that he began the occupancy of the lands in 1935 under any claim adverse to the other cotenants.

It is true that York Mack had exclusive possession of the lands from about 1935 until his death in 1945. His occupancy consisted of farming the land and collecting rents. Such however was insufficient to give rise to an implication of ouster. In Watson v. Little, 224 S. C. 359, 365, 79 S. E. (2d) 384, the Court stated:

Only in rare cases, which may be said to be extreme, has it been held that ouster of the other cotenants was implied from exclusive possession, collection of rents and improvement of the property by one cotenant.

Respondents argue, however, that the attempted conveyance by the York Mack heirs of a portion of the property to the Society Hill AME Church in 1968 and 1969 and the subsequent sale of timber indicated the hostile nature of their possession. These acts occurred within ten (10) years of the institution of this action in 1975 and could not be the basis of the acquisition of title by ouster.

Apparently, respondents contend that in some way these acts in 1968 or 1969 together with the evidence of exclusive possession, could be projected back to the 1940’s and 1930’s so as to establish presumptive ouster at the earlier dates. This contention is without merit, since there is no evidence to show an intention to claim the property adversely to the cotenants prior to the deed to the church in 1968 or 1969. The statute of limitations must operate prospectively from the time of ouster and, since the requisite time element is absent, respondent’s claim of ownership by adverse posession must fail. As in Watson v. Little, supra: “Absent the time element, as here, there need be no further consideration of the nature of [respondents’] possession.”

Judgment is accordingly reversed and the cause remanded for further proceedings.

Littlejohn, Ness, Gregory and Harwell, J. J., concur.

*609OPINION OF THE COURT BY

MENOR, J.

This is a civil action brought by the plaintiffs-appellants, Masako Sawada and Helen Sawada, in aid of execution of money judgments in their favor, seeking to set aside a conveyance of real property from judgment debtor Kokichi Endo to Samuel H. Endo and Torn Endo, defendants-appellees herein, on the ground that the conveyance as to the Sawadas was fraudulent.

On November 30, 1968, the Sawadas were injured when struck by a motor vehicle operated by Kokichi Endo. On June 17, 1969, Helen Sawada filed her complaint for damages against Kokichi Endo. Masako Sawada filed her suit against him on August 13,1969. The complaint and summons in each case was served on Kokichi Endo on October 29, 1969.

On the date of the accident, Kokichi Endo was the owner, as a tenant by the entirety with his wife, Ume Endo, of a *610parcel of real property situate at Wahiawa, Oahu, Hawaii. By deed, dated July 26, 1969, Kokichi Endó and his wife conveyed the property to their sons, Samuel H. Endo and Toru Endo. This document was recorded in the Bureau of Conveyances on December 17, 1969. No consideration was paid by the grantees for the conveyance. Both were aware at the time of the conveyance that their father had been involved in an accident, and that he carried no liability insurance. Kokichi Endo and Ume Endo, while reserving no life interests therein, continued to reside on the premises.

On January 19, 1971, after a consolidated trial on the merits, judgment was entered in favor of Helen Sawada and against Kokichi Endo in the sum of $8,846.46. At the same time, Masako Sawada was awarded judgment on her complaint in the amount of $16,199.28. Ume Endo, wife of Kokichi Endo, died on January 29,1971. She was survived by her husband, Kokichi. Subsequently, after being frustrated in their attempts to obtain satisfaction of judgment from the personal property of Kokichi Endo, the Sawadas brought suit to set aside the conveyance which is the subject matter of this controversy. The trial court refused to set aside the conveyance, and the Sawadas appeal.

I

The determinative question in this case is, whether the interest of one spouse in real property, held in tenancy by the entireties, is subject to levy and execution by his or her individual creditors. This issue is one of first impression in this jurisdiction.

A brief review of the present state of the tenancy by the entirety might be helpful. Dean Phipps, writing in 1951,1 pointed out that only nineteen states and the District of Columbia continued to recognize it as a valid and subsisting institution in the field of property law. Phipps divided these jurisdictions into four groups. He made no mention of Alaska *611and Hawaii, both of which were then territories of the United States.

In the Group I states (Massachusetts, Michigan, and North Carolina) the estate is essentially the common law tenancy by the entireties, unaffected by the Married Women’s Property Acts. As at common law, the possession and profits of the estate are subject to the husband’s exclusive dominion and control. Pineo v. White, 320 Mass. 487, 70 N.E.2d 294 (1946); Speier v. Opfer, 73 Mich. 35, 40 N.W. 909 (1888); Johnson v. Leavitt, 188 N. C. 682, 125 S.E. 490 (1924). In all three states, as at common law, the husband may convey the entire estate subject only to the possibility that the wife may become entitled to the whole estate upon surviving him. Phelps v. Simons, 159 Mass. 415, 34 N.E. 657 (1893); Arrand v. Graham, 297 Mich. 559, 298 N.W. 281 (1911); Hood v. Mercer, 150 N.C. 699, 64 S.E. 897 (1909). As at common law, the obverse as to the wife does not hold true. Only in Massachusetts, however, is the estate in its entirety subject to levy by the husband’s creditors. Splaine v. Morrissey, 282 Mass. 217, 184 N.E. 670 (1933). In both Michigan and North Carolina, the use and income from the estate is not subject to levy during the marriage for the separate debts of either spouse. Dickey v. Converse, 117 Mich. 449, 76 N.W. 80 (1898); Hood v. Mercer, supra.

In the Group II states (Alaska, Arkansas, New Jersey, New York, and Oregon) the interest of the debtor spouse in the estate may be sold or levied upon for his or her separate debts, subject to the other spouse’s contingent right of survivorship. Pope v. McBride, 207 Ark. 940, 184 S.W.2d 259 (1945); King v. Greene, 30 N.J. 395, 153 A.2d 49 (1959); Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337 (1895); Brownley v. Lincoln County, 218 Ore. 7, 343 P.2d 529 (1959). Alaska, which has been added to this group, has provided by statute that the interest of a debtor spouse in any type of estate, except a homestead as defined and held in tenancy by the entirety, shall be subject to his or her separate debts. Pilip v. United States, 186 F. Supp. 397 (D. Alaska, 1960).

*612In the Group III jurisdictions (Delaware, District of Columbia, Florida, Indiana, Maryland, Missouri, Pennsylvania, Rhode Island, Vermont, Virginia, and Wyoming) an attempted conveyance by either spouse is wholly void, and the estate may not be subjected to the separate debts of one spouse only. Citizens Savings Bank Inc. v. Astrin, 44 Del. 451, 61 A.2d 419 (1948); Golden v. Glens Falls Indemnity Co., 102 App. D.C. 106, 250 F.2d 769 (1957); Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941); Sharp v. Baker, 51 Ind. App. 547, 96 N.E. 627 (1911); McCubbin v. Stanford, 85 Md. 378, 37 A. 214 (1897); Otto F. Stifel’s Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67 (1918); O’Malley v. O’Malley, 272 Pa. 528, 116 A. 500 (1922); Bloomfield v. Brown, 67 R.I. 452, 25 A.2d 354 (1942); Citizens’ Savings Bank & Trust Co. v. Jenkins, 91 Vt. 13, 99 A. 250 (1916); Vasilion v. Vasilion, 192 Va. 735, 66 S.E.2d 599 (1951); Ward Terry and Company v. Hensen, 75 Wyo. 444, 297 P.2d 213 (1956).

In Group IV, the two states of Kentucky and Tennessee hold that the contingent right of survivorship appertaining to either spouse is separately alienable by him and attachable by his creditors during the marriage. Hoffmann v. Newell, 249 Ky. 270, 60 S.W.2d 607 (1933); Covington v. Murray, 220 Tenn. 265, 416 S.W.2d 761 (1967). The use and profits, however, may neither be alienated nor attached during coverture.

It appears, therefore, that Hawaii is the only jurisdiction still to be heard from on the question. Today we join that group of states and the District of Columbia which hold that under the Married Women’s Property Acts the interest of a husband or a wife in an estate by the entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses. In so doing, we are placing our stamp of approval upon what is apparently the prevailing view of the lower courts of this jurisdiction.

Hawaii has long recognized and continues to recognize the tenancy in common, the joint tenancy, and the tenancy by the entirety, as separate and distinct estates. See Paahana v. Bila, 3 Haw. 725 (1876). That the Married Women’s Property *613Act of 1888 was not intended to abolish the tenancy by the entirety was made clear by the language of Act 19 of the Session Laws of Hawaii, 1903 (now HRS § 509-1). See also HRS § 509-2. The tenancy by the entirety is predicated upon the legal unity of husband and wife, and the estate is held by them in single ownership. They do not take by moieties, but both and each are seized of the whole estate. Lang v. Commissioner, 289 U.S. 109 (1933).

A joint tenant has a specific, albeit undivided, interest in the property, and if he survives his cotenant he becomes the owner of a larger interest than he had prior to the death of the other joint tenant. But tenants by the entirety are each deemed to be seized of the entirety from the time of the creation of the estate. At common law, this taking of the “whole estate” did not have the real significance that it does today, insofar as the rights of the wife in the property were concerned. For all practical purposes, the wife had no right during coverture to the use and enjoyment and exercise of ownership in the marital estate. All she possessed was her contingent right of survivorship.

The effect of the Married Women’s Property Acts was to abrogate the husband’s common law dominance over the marital estate and to place the wife on a level of equality with him as regards the exercise of ownership over the whole estate. The tenancy was and still is predicated upon the legal unity of husband and wife, but the Acts converted it into a unity of equals and not of unequals as at common law. Otto F. Stifel’s Union Brewing Co. v. Saxy, supra; Lang v. Commissioner, supra. No longer could the husband convey, lease, mortgage or otherwise encumber the property without her consent. The Acts confirmed her right to the use and enjoyment of the whole estate, and all the privileges that ownership of property confers, including the right to convey the property in its entirety, jointly with her husband, during the marriage relation.. Jordan v. Reynolds, 105 Md. 288, 66 A. 37 (1907); Hurd v. Hughes, 12 Del. Ch. 188, 109 A. 418 (1920); Vasilion v. Vasilion, supra; Frost v. Frost, 200 Mo. 474, 98 S.W. 527 (1906). They also had the effect of insulating the wife’s in*614terest in the estate from the separate debts of her husband. Jordan v. Reynolds, supra.

Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution. Fairclaw v. Forrest, 130 F.2d 829 (D.C.Cir. 1942). A joint tenancy may be destroyed by voluntary alienation, or by levy and execution, or by compulsory partition, but a tenancy by the entirety may not. The indivisibility of the estate, except by joint action of the spouses, is an indispensable feature of the tenancy by the entirety. Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72 (1918); Newman v. Equitable Life Assur. Soc., 119 Fla. 641, 160 So. 745 (1935); Lang v. Commissioner, supra.

In Jordan v. Reynolds, supra, the Maryland court held that no lien could attach against entirety property for the separate debts óf the husband, for that would be in derogation of the entirety of title in the spouses and would be tantamount to a conversion of the tenancy into a joint tenancy or tenancy in common. In holding that the spouses could jointly convey the property, free of any judgment liens against the husband, the court said:

“To hold the judgment to be a lien at all against this property, and the right of execution suspended during the life of the wife, and to be enforced on the death of the wife, would, we think, likewise encumber her estate, and be in contravention of the constitutional provision heretofore mentioned, protecting the wife’s property from the husband’s debts.

It is clear, we think, if the judgment here is declared a lien, but suspended during the life of the wife, and not enforceable until her death, if the husband should survive the wife, it will defeat the sale here made by the husband and wife to the purchaser, and thereby make the wife’s property liable for the debts of her husband. ” 105 Md. at 295, 296, 66 A. at 39.

In Hurd v. Hughes, supra, the Delaware court, recognizing the peculiar nature of an estate by the entirety, in that the *615husband and wife are the owners, not merely of equal interests but of the whole estate, stated:

“The estate [by the entireties] can be acquired or held only by a man and woman while married. Each spouse owns the whole while both live; neither can sell any interest except with the other’s consent, and by their joint act and at the death of either the other continues to own the whole, and does not acquire any new interest from the other. There can be no partition between them. From this is deduced the indivisibility and unseverability of the estate into two interests, and hence that the creditors of either spouse cannot during their joint lives reach by execution any interest which the debtor had in land so held. . . . One may have doubts as to whether the holding of land by entireties is advisible or in harmony with the spirit of the legislation in favor of married women; but when such an estate is created due effect must be given to its peculiar characteristics.” 12 Del. Ch. at 190, 109 A. at 419.

In Frost v. Frost, supra, the Missouri court said:

“Under the facts of the case at bar it is not necessary for us to decide whether or not under our married women’s statutes the husband has been shorn of the exclusive right to the possession and control of the property held as an estate in entirety; it is sufficient to say, as we do say, that the title in such an estate is as it was at common law; neither husband nor wife has an interest in the property, to the exclusion of the other. Each owns the whole while both live and at the death of either the other continues to own the whole, freed from the claim of any one claiming under or through the deceased. ” 200 Mo. at 483, 98 S.W. at 528, 529.

We are not persuaded by the argument that it would be unfair to the creditors of either spouse to hold that the estate by the entirety may not, without the consent of both spouses, be levied upon for the separate debts of either spouse. No unfairness to the creditor is involved here. We agree with the court in Hurd v. Hughes, supra:

*616“But creditors are not entitled to special consideration. If the debt arose prior to the creation of the estate, the property was not the basis of credit, and if the debt arose subsequently the creditor presumably had notice of the characteristics of the estate which limited his right to reach the property.” 12 Del. Ch. at 193, 109 A. at 420.

We might also add that there is obviously nothing to prevent the creditor from insisting upon the subjection of property held in tenancy by the entirety as a condition precedent to the extension of credit. Further, the creation of a tenancy by the entirety may not be used as a device to defraud existing creditors. In re Estate of Wall, 440 F.2d 215 (D.C. Cir. 1971).

Were we to view the matter strictly from the standpoint of public policy, we would still be constrained to hold as we have done here today. In Fairclaw v. Forrest, supra, the court makes this observation:

“The interest in family solidarity retains some influence upon the institution [of tenancy by the entirety]. It is available only to husband and wife. It is a convenient mode of protecting a surviving spouse from inconvenient administration of the decedent’s estate and from the other’s improvident debts. It is in that protection the estate finds its peculiar and justifiable function.” 130 F.2d at 833.

It is a matter of common knowledge that the demand for single-family residential lots has increased rapidly in recent years, and the magnitude of the problem is emphasized by the concentration of the bulk of fee simple land in the hands of a few. The shortage of single-family residential fee simple property is critical and government has seen fit to attempt to alleviate the problem through legislation. When a family can afford to own real property, it becomes their single most important asset. Encumbered as it usually is by a first mortgage, the fact remains that so long as it remains whole during the joint lives of the spouses, it is always available in its entirety for the benefit and use of the entire family. Loans for education and other emergency expenses, for example, may *617be obtained on the security of the marital estate. This would not be possible where a third party has become a tenant in common or a joint tenant with one of the spouses, or where the ownership of the contingent right of survivorship of one of the spouses in a third party has cast a cloud upon the title of the marital estate, making it virtually impossible to utilize the estate for these purposes.

Andrew S. Hartnett (Ueoka, Vail & Luna, of counsel) for plain tiffs-appellants.

George M. Takane and Eichi Oki for defendantsappellees.

If we were to select between a public policy favoring the creditors of one of the spouses and one favoring the interests of the family unit, we would not hesitate to choose the latter. But we need not make this choice for, as we pointed out earlier, by the very nature of the estate by the entirety as we view it, and as other courts of our sister jurisdictions have viewed it, “[a] unilaterally indestructible right of survivor-ship, an inability of one spouse to alienate his interest, and importantly for this case, a broad immunity from claims of separate creditors remain among its vital incidents.” In re Estate of Wall, supra, 440 F.2d at 218.

Having determined that an estate by the entirety is not subject to the claims of the creditors of one of the spouses during their joint lives, we now hold that the conveyance of the marital property by Kokichi Endo and Ume Endo, husband and wife, to their sons, Samuel H. Endo and Torn Endo, was not in fraud of Kokichi Endo’s judgment creditors. Cf. Jordan v. Reynolds, supra.

Affirmed.

DISSENTING OPINION OF

KIDWELL, J.

This case has been well briefed, and the arguments against the conclusions reached by the majority have been well presented. It will not materially assist the court in resolving the issues for me to engage in an extensive review of the conflicting views. Appellants ’ position on the appeal was that *618tenancy by the entirety as it existed at common law, together with all of the rights which the husband had over the property of his wife by virtue of the common law doctrine of the unity of the person, was recognized by the early decisions, Paahana v. Bila, 3 Haw. 725 (1876); Von Hasslocher v. Executors of Robinson, 3 Haw. 802 (1877); Cummins v. Wond, 6 Haw. 69 (1872); Kuanalewa v. Kipi, 7 Haw. 575 (1889); that the Married Women’s Act of 1888 (now Ch. 573, HRS) destroyed the fictional unity of husband and wife, First National Bank v. Gaines, 16 Haw. 731 (1905); that the legislature has recognized the continuing existence of the estate of tenancy by the entirety, but has not defined the nature or the incidents of that estate, HRS § 509-1, 509-2; that at common law the interest of the husband in an estate by the entireties could be taken by his separate creditors on execution against him, subject only to the wife’s right of survivorship, Kuanalewa v. Kipi, supra; and that the Married Women’s Act merely eliminated any inequality in the positions of the spouses with respect to their interests in the property, thus depriving the husband of his former power over the wife’s interest, without thereby altering the nature and incidents of the husband’s interest.

I find the logic of Appellant’s analysis convincing. While the authorities are divided, I consider that the reasoning of the cases cited by Appellant best reconciles the Married Women’s Act with the common law. Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337 (1895); Pope v. McBride, 207 Ark. 940, 184 S.W.2d 259 (1944); Branch v. Polk, 61 Ark. 388, 33 S.W. 424 (1895); King v. Greene, 30 N.J. 395, 153 A.2d 49 (1959); Buttlar v. Rosenblath, 42 N.J.Eq. 651, 9 Atl. 695 (1887); Brownley v. Lincoln County, 218 Ore. 7, 343 P.2d 529 (1959); Ganoe v. Ohmart, 121 Ore. 116, 254 Pac. 203 (1927); Hoffmann v. Newell, 249 Ky. 270, 60 S.W.2d 607 (1932); Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000 (1895); Raptes v. Cheros, 259 Mass. 37, 155 N.E. 787 (1927).

The majority reaches its conclusion by holding that the effect of the Married Women’s Act was to equalize the positions of the spouses by taking from the husband his common *619law right to transfer his interest, rather than by elevating the wife’s right of alienation of her interest to place it on a position of equality with the husband’s. I disagree. I believe that a better interpretation of the Married Women’s Acts is that offered by the Supreme Court of New Jersey in King v. Greene, 30 N.J. 395, 412, 153 A.2d 49, 60 (1959):

It is clear that the Married Women’s Act created an equality between the spouses in New Jersey, insofar as tenancies by the entirety are concerned. If, as we have previously concluded, the husband could alienate his right of survivorship at common law, the wife, by virtue of the act, can alienate her right of survivorship. And it follows that if the wife takes equal rights with the husband she must take equal disabilities. Such are the dictates of common equality. Thus the judgment creditors of either spouse may levy and execute on their separate rights of survivorship.

One may speculate whether the courts which first chose the path to equality now followed by the majority might have felt an unexpressed aversion to entrusting a wife with as much control over her interest as had previously been granted to the husband with respect to his interest. Whatever may be the historical explanation for these decisions, I feel that the resultant restriction upon the freedom of the spouses to deal independently with their respective interests is both illogical and unnecessarily at odds with present policy trends. Accordingly, I would hold that the separate interest of the husband in entireties property, at least to the extent of his right of survivorship, is alienable by him and subject to attachment by his separate creditors, so that a voluntary conveyance of the husband’s interest should be set aside where it is fraudulent as to such creditors, under applicable principles of the law of fraudulent conveyances.

DAVIS, Justice:

This is an appeal by Rhonda Gail Harper, Edward Caudill, Rose M. Thompson, Edith D. Kitchen, Therman R. Caudill, John A. Caudill, Jr., Tammy Willis, and Lucille M. Miller (hereinafter collectively identified as the “Caudill heirs”), appellants/defendants below, from an order of the Circuit Court of Lincoln County. The circuit court’s order authorized a partition and sale of real property jointly owned by the Caudill heirs and Ark Land Company (hereinafter referred to as “Ark Land”), appellee/plaintiff below. Here, the Caudill heirs contend that the legal precedents of this Court warrant partitioning the property in kind, not a sale. After a careful review of the briefs and record in this *334case, we agree with the Caudill heirs and reverse the circuit court.

I.

FACTUAL AND PROCEDURAL HISTORY

This is a dispute involving approximately 75 acres of land situate in Lincoln County, West Virginia. The record indicates that “[t]he Caudill family has owned the land for nearly 100 years.” The property “consists of a farmhouse, constructed around 1920, several small barns, and a garden[.]” Prior to 2001, the property was owned exclusively by the Caudill family. However, in 2001 Ark Land acquired a 67.5% undivided interest in the land by purchasing the property interests of several Caudill family members. Ark Land attempted to purchase the remaining property interests held by the Caudill heirs, but they refused to sell. Ark Land sought to purchase all of the property for the express purpose of extracting coal by surface mining.

After the Caudill heirs refused to sell their interest in the land, Ark Land filed a complaint in the Circuit Court of Lincoln County in October of 2001.1 Ark Land filed the complaint seeking to have the land partitioned and sold. The circuit court appointed three commissioners, pursuant to W. Va. Code § 37-4-3 (1957) (Repl. Vol. 1997), to conduct an evidentiary hearing. The commissioners subsequently filed a report on August 19, 2002, wherein they concluded that the property could not be conveniently partitioned in kind.

The Caudill heirs objected to the report filed by the commissioners.2 The circuit court held a de novo review that involved testimony from lay and expert witnesses. On October 30, 2002, the circuit court entered an order directing the partition and sale of the property. On January 7, 2003 the circuit court entered an “agreed order” that permitted the property to be sold, with a deposit of $50,000 being made, pending an appeal by the Caudill heirs.3 The circuit court entered an order on February 5, 2003, certifying that its October 30, 2002, order was a final order under Rule 54(b) of the West Virginia Rules of Civil Procedure. From this ruling the Caudill heirs appealed.

II.

STANDARD OF REVIEW

This matter was prosecuted as a bench trial.4 In that regard, our standard of review was set out in syllabus point 1 of Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996), as follows:

*335In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court’s underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.

This Court has also made clear that,

[t]he deference accorded to a circuit court sitting as factfinder may evaporate if upon review of its findings the appellate court determines that: (1) a relevant factor that should have been given significant weight is not considered; (2) all proper factors, and no improper factors, are considered, but the circuit court in weighing those factors commits an error of judgment; or (3) the circuit court failed to exercise any discretion at all in issuing its decision.

Syl. pt. 1, Brown v. Gobble, 196 W.Va. 559, 474 S.E.2d 489 (1996). With due consideration for these standards, we proceed to analyze the issue presented for review.

III.

DISCUSSION

The dispositive issue is whether the evidence supported the circuit court’s conclusion that the property could not be conveniently partitioned in kind, thus warranting a partition by sale. During the proceeding before the circuit court, the Caudill heirs presented expert testimony by Gary F. Acord, a mining engineer. Mr. Acord testified that the property could be partitioned in kind. Specifically, Mr. Acord testified that lands surrounding the family home did not have coal deposits and could therefore be partitioned from the remaining lands. On the other hand, Ark Land presented expert testimony which indicated that such a partition would entail several million dollars in additional costs in order to mine for coal.

We note at the outset that “[pjartition means the division of the land held in cotenancy into the cotenants’ respective fractional shares. If the land cannot be fairly divided, then the entire estate may be sold and the proceeds appropriately divided.” 7 Powell on Real Property, § 50.07[1] (2004). It has been observed that, “[i]n the United States, partition was established by statute in each of the individual states. Unlike the partition in kind which existed under early common law, the forced judicial sale was an American innovation.” Phyliss Craig-Taylor, Through a Colored Looking Glass: A View of Judicial Partition, Family Land Loss, and Rule Setting, 78 Wash. U.L.Q. 737, 752 (2000). This Court has recognized that, by virtue of W. Va.Code § 37-4-1 et seq., “[t]he common law right to compel partition has been expanded by [statute] to include partition by sale.” Syl. pt. 2, in part, Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978).5 See also Syl. pt. 1, Croston v. Male, *33656 W.Va. 205, 49 S.E. 136 (1904) (“But for the statute authorizing it, a sale of real estate could not be decreed in a suit for partition thereof.”).

Partition by sale, when it is not voluntary by all parties, can be a harsh result for the eotenant(s) who opposes the sale. This is because “ ‘[a] particular piece of real estate cannot be replaced by any sum of money, however large; and one who wants a particular estate for a specific use, if deprived of his rights, cannot be said to receive an exact equivalent or complete indemnity by the payment of a sum of money.’ ” Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196, 198 (1944) (quoting Lynch v. Union Inst, for Savings, 159 Mass. 306, 34 N.E. 364, 364-365 (1893)). Consequently, “[p]artition in kind ... is the preferred method of partition because it leaves eotenants holding the same estates as before and does not force a sale on unwilling cotenants.” Powell, § 50.07[4][a]. The laws in all jurisdictions “appear to reflect this longstanding principle by providing a presumption of severance of common ownership in real property by partition in-kind[.]” Craig-Taylor, 78 Wash. U.L.Q. at 753. “Thus, partitioning sale statutes should be construed narrowly and used sparingly because they interfere with property rights.” John G. Casagrande, Jr., Acquiring Property Through Forced Partitioning Sales: Abuses and Remedies, 27 Boston C.L. Rev. 755, 775 (1986). See also Syllabus, in part, Smith v. Greene, 76 W.Va. 276, 85 S.E. 537 (1915) (“The right to a partition of real estate in kind, as required at the common law, cannot be denied, where demanded, unless it affirmatively appears upon the record that such partition cannot conveniently be made[J”).

In syllabus point 3 of Consolidated Gas Supply Corp., this Court set out the following standard of proof that must be established to overcome the presumption of partition in kind:

By virtue of W. Va.Code § 37-4-3, a party desiring to compel partition through sale is required to demonstrate [ (1) ] that the property cannot be conveniently partitioned in land, [(2)] that the interests of one or more of the parties will be promoted by the sale, and [(3)] that the interests of the other parties will not be prejudiced by the saleJ61

(Footnote added). In its lengthy order requiring partition and sale, the circuit court addressed each of the three factors in Consolidated Gas Supply Corp. as follows:

(14) That upon the Court’s review and consideration of the entire record, even after the [Caudill heirs’] expert witness testified, the Court has determined that it is clearly evident that the subject property’s nature, character, and amount are such that it cannot be conveniently, (that is “practically or justly”) partitioned, or divided by allotment among its owners. Moreover, it is just and necessary to conclude that such a proposal as has been made by the [Caudill heirs], that of allotting the manor house and the surrounding “bottom land” unto the [Caudill heirs], cannot be affected without undeniably prejudicing [Ark Land’s] interests, in violation of the mandatory provisions of Code § 37-4-3; and,

(15) That while its uniform topography superficially suggests a division-in-kind, as proposed by Mr. Acord, the access road, the bottom lands and the relatively flat home site is, in fact, integral to establish*337ing the fair market value of the subject property in its entirety, as its highest and best use as mining property, as shown by the uncontroverted testimony of [Ark Land’s] experts Mr. Morgan and Mr. Terry; and,

(16) That from a review of the Commissioners’ Report, it indicates that sale of the subject property will promote the interests of [Ark Land], “but may prejudice the best interest of the [Caudill heirs].” Obviously, from the legal principles and the reviewing standards set out above, the “best interests” of either party is not the standard upon which the Court must determine these issues. In that respect, it is undisputed that the remaining heirs, that are [the Caudill heirs] herein, do not wish to sell, or have the Court sell, their interests in the subject property, solely due to their sincere sentiment for it as the family’s “home place”. Other family members, however, did not feel the same way. Given the equally undisputed testimony of [Ark Land’s] experts, it is just and reasonable for the Court to conclude that the interests of all the subject property’s owners will not be financially prejudiced, but will be financially promoted, by sale of the subject property and distribution among them of the proceeds, according to their respective interests. The subject property’s value as coal mining property, its uncontroverted highest and best use, would be substantially impaired by severing the family’s “home place” and allotting it to them separately. Again, the evidence is not only a preponderance, but unrebutted, that Mr. Acord’s proposal would greatly diminish the value of the subject property. Accordingly, the Court does hereby conclude as a matter of law that the subject property should be sold as a whole in its entirety, and that it cannot be partitioned in kind by allotment of part and a sale of the residue.

We are troubled by the circuit court’s conclusion that partition by sale was necessary because the economic value of the property would be less if partitioned in kind. We have long held that the economic value of property may be a factor to consider in determining whether to partition in kind or to force a sale.

“Whether the aggregate value of the several parcels into which the whole premises must be divided will, when distributed among, and held in severalty by, the different parties, be materially less than the value of the same property if owned by one person, is a fair test by which to determine whether the interests of the parties will be promoted by a sale.”

Syl. pt. 6, Croston v. Male, 56 W.Va. 205, 49 S.E. 136. However, our cases do not support the conclusion that economic value of property is the exclusive test for determining whether to partition in kind or to partition by sale. In fact, we explicitly stated in Hale v. Thacker, 122 W.Va. 648, 650, 12 S.E.2d 524, 526 (1940), “that many considerations, other than monetary, attach to the ownership of land, and courts should be, and always have been, slow to take away from owners of real estate their common-law right to have the same set aside to them in kind.” See also Wilkins v. Wilkins, 175 W.Va. 787, 791, 338 S.E.2d 388, 392 (1985) (per curiam) (“Prejudice is not measured solely in monetary terms.”(citing Vincent v. Gustke, 175 W.Va. 521, 336 S.E.2d 33 (1985); Harris v. Crowder, 174 W.Va. 83, 322 S.E.2d 854 (1984); and Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977)) (additional citation omitted)).

Other courts have also found that monetary consideration is not the only factor to contemplate when determining whether to partition property in kind or by sale. In the ease of Eli v. Eli, 557 N.W.2d 405 (S.D.1997), the South Dakota Supreme Court addressed the issue of the impact of monetary considerations in deciding whether to partition property in kind or by sale. In that case over 100 acres of land were jointly owned by three members of the Eli family. The land had been owned by the Eli family for almost 100 years, and was used solely as farm land. Two of the co-owners sought to have the land partitioned and sold. A trial judge found that the land would be worth less if partitioned in kind, therefore the court ordered the land be sold at public auction. The co-owner who sought a partition in kind appealed the trial court’s decision. The South Dakota Supreme Court found that the trial *338court erroneously relied upon the fact that the property would be worth less if partitioned in kind. In reversing the trial court’s decision, the Eli court reasoned as follows:

Monetary considerations, while admittedly significant, do not rise to the level of excluding all other appropriate considerations .... The sale of property “without [the owner’s] consent is an extreme exercise of power warranted only in clear cases.” We believe this to be especially so when the land in question has descended from generation to generation. While it is true that the Eli brothers’ expert testified that if partitioned, the separate parcels would sell for $50 to $100 less per acre, this fact alone is not dispositive. One’s land possesses more than mere economic utility; it “means the full range of the benefit the parties may be expected to derive from their ownership of their respective shares.” Such value must be weighed for its effect upon all parties involved, not just those advocating a sale.

557 N.W.2d at 409-410 (internal citations omitted). See also Harris v. Harris, 51 N.C.App. 103, 275 S.E.2d 273, 276 (1981) (“[M]any considerations, other than monetary, attach to the ownership of land.”); Schnell v. Schnell, 346 N.W.2d 713, 721 (N.D. 1984) (finding sentimental attachment to land by co-owner was sufficient to prevent forced sale by other co-owner); Fike v. Sharer, 280 Or. 577, 571 P.2d 1252, 1254 (1977) (“[S]enti-mental reasons, especially an owner’s desire to preserve a home, may also be considered [in a partition suit].”).

Similarly, in Delfino v. Vealencis, 181 Conn. 533, 436 A.2d 27 (1980), two plaintiffs owned a 20.5 acre tract of land with the defendant. The defendant used part of the property for her home and a garbage removal business. The plaintiffs filed an action to force a sale of the property so that they could use it to develop residential properties. The trial court concluded that a partition in kind could not be had without great prejudice to the parties, and that the highest and best use of the property was through development as residential property. The trial court therefore ordered that the property be sold at auction. The defendant appealed. The Connecticut Supreme Court reversed for the following reasons:

The [trial] court’s ... observations relating to the effect of the defendant’s business on the probable fair market value of the proposed residential lots ... are not dispositive of the issue. It is the interests of all of the tenants in common that the court must consider; and not merely the economic gain of one tenant, or a group of tenants. The trial court failed to give due consideration to the fact ... that the [defendant] has made her home on the property; and that she derives her livelihood from the operation of a business on this portion of the property, as her family before her has for many years. A partition by sale would force the defendant to surrender her home and, perhaps, would jeopardize her livelihood. It is under just such circumstances, which include the demonstrated practicability of a physical division of the property, that the wisdom of the law’s preference for partition in kind is evident.

Delfino, 436 A.2d at 32-33 (emphasis added). See also Leake v. Casati, 234 Va. 646, 363 S.E.2d 924, 927 (1988) (“Even evidence that the property would be less valuable if divided [has been] held ‘insufficient to deprive a co-owner of his ‘sacred right’ to property.’” (quoting Sensabaugh v. Sensabaugh, 232 Va. 250, 349 S.E.2d 141, 146 (1986))).

In view of the prior decisions of this Court, as well as the decisions from other jurisdictions, we now make clear and hold that, in a partition proceeding in which a party opposes the sale of property, the economic value of the property is not the exclusive test for deciding whether to partition in kind or by sale. Evidence of longstanding ownership, coupled with sentimental or emotional interests in the property, may also be considered in deciding whether the interests of the party opposing the sale will be prejudiced by the property’s sale. This latter factor should ordinarily control when it is shown that the property can be partitioned in kind, though it may entail some economic inconvenience to the party seeking a sale.

In the instant case, the Caudill heirs were not concerned with the monetary value *339of the property. Their exclusive interest was grounded in the longstanding family ownership of the property and their emotional desire to keep their ancestral family home within the family.7 It is quite clear that this emotional interest would be prejudiced through a sale of the property.

The expert for the Caudill heirs testified that the ancestral family home could be partitioned from the property in such away as to not deprive Ark Land of any coal. The circuit court summarily and erroneously dismissed this uneontradicted fact because of the increased costs that Ark Land would incur as a result of a partition in kind. In view of our holding, the additional economic burden that would be imposed on Ark Land, as a result of partitioning in kind, is not determinative under the facts of this case.

We have held that “[t]he question of what promotes or prejudices a party’s interest when a partition through sale is sought must necessarily turn on the particular facts of each case.” Consolidated Gas Supply Corp-, 161 W.Va. at 788, 247 S.E.2d at 715. The facts in this case reveal that, prior to 2001, Ark Land had no ownership interest in the property. Conversely, for nearly 100 years the Caudill heirs and their ancestors owned the property and used it for residential purposes.8 In 2001 Ark Land purchased ownership rights in the property from some Caudill family members. When the Caudill heirs refused to sell their ownership rights, Ark Land immediately sought to force a judicial sale of the property. In doing this, Ark Land established that its proposed use of the property, surface coal mining, gave greater value to the property. This showing is self-serving. In most instances, when a commercial entity purchases property because it believes it can make money from a specific use of the property, that property will increase in value based upon the expectations of the commercial entity. This self-created enhancement in the value of property cannot be the determinative factor in forcing a pre-existing co-owner to give up his/her rights in property. To have such a rule would permit commercial entities to always “evict” pre-existing co-owners, because a commercial entity’s interest in property will invariably increase its value. See Butte Creek Island Ranch v. Crim, 136 Cal.App.3d 360, 368, 186 Cal.Rptr. 252 (1982) (“Plaintiff ... sought a forced sale of the land in order to acquire defendant’s interest which he did not desire to sell. This is nothing short of the private condemnation of private land for private purposes, a result which is abhorrent to the rights of defendant as a freeholder.”).

We are very sensitive to the fact that Ark Land will incur greater costs in conducting its business on the property as a result of partitioning in kind. However, Ark Land voluntarily took an economical gamble that it would be able to get all of the Caudill family members to sell their interests in the property. Ark Land’s gamble failed. The Caudill heirs refused to sell their interests. The fact that Ark Land miscalculated on its ability to acquire outright all interests in the property cannot form the basis for depriving the Cau-dill heirs of their emotional interests in maintaining their ancestral family home. The additional cost to Ark Land that will result from a partitioning' in kind simply does not impose the type of injurious inconvenience that would justify stripping the Caudill heirs of the emotional interest they have in preserving their ancestral family home. See Syl. pt. 4, in part, Croston v. Male, 56 W.Va. 205, 49 S.E. 136 (“Inconvenience of partition as one of the circumstances authorizing such sale, ... is not satisfied by anything short of a real and substantial obstacle of some kind to division in kind, such as would make it injurious to the owners[.]”).

*340Ark Land cites to several prior decisions of this Court as being dispositive of the facts in this ease. First, Ark Land contends that the decision in Garlow v. Murphy, 111 W.Va. 611, 163 S.E. 436 (1932), requires affirming the circuit court’s decision in the instant case. Ark Land relies specifically upon syllabus point 2 of Garlow, which states:

An ordinary test of convenience in partition, under the statute, is, Will any interest assigned be materially less in value than the interest undivided? If so, the tract should be sold; if not, it should be partitioned.

This syllabus point is not dispositive because Garlow was decided under a version of W. Va.Code 37-4-3 that had no requirement that a sale must not prejudice the interests of a co-owner.9 The latter requirement was added in 1931, and was explained in Consolidated Gas Supply Corp. as follows:

It is obvious ... that the 1931 revisions to W. Va.Code § 37-4-3, have resulted in two changes. First, there is no requirement that a person show that all the interests involved in the partition will be promoted. Second, it must be shown that the other interests will not be prejudiced by a partition by sale. Our cases demonstrate that after 1931, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interest of the other parties will not be prejudiced by the sale.

Consolidated Gas Supply Corp., 161 W.Va. at 788, 247 S.E.2d at 715 (citations omitted).

The other two cases cited by Ark Land, Myers v. Myers, 176 W.Va. 326, 342 S.E.2d 294 (1986) (per curiam),10 and Wilkins v. Wilkins, 175 W.Va. 787, 338 S.E.2d 388 (1985) (per curiam),11 also are not dispositive for the reasons cited by Ark Land. Ark Land relies upon those eases because they restated syllabus point 2 of Garlow. We have already shown that syllabus point 2 of Garlow has been modified by statute, insofar as there must be a showing that sale of property will not prejudice the interests of a co-owner.12

IV.

CONCLUSION

In view of the foregoing, we find that the circuit court erred in determining that the property could not be partitioned in kind. We, therefore, reverse the circuit court’s order requiring sale of the property. This case is remanded with directions to the circuit *341court to enter an order requiring the property to be partitioned in kind, consistent with the report and testimony of the Caudill heirs’ mining engineer expert, Gary F. Acord.

Reversed and Remanded.

Chief Justice MAYNARD concurs, in part, and dissents, in part, and files a separate opinion.

MAYNARD, Chief Justice,

concurring, in part, and dissenting, in part.

I concur with the new law created by the majority in this case. That is to say, I agree that evidence of longstanding ownership along with sentimental or emotional attachment to property are factors that should be considered and, in some instances, control the decision of whether to partition in kind or sale jointly-owned property which is the subject of a partition proceeding.

I dissent in this case, however, because I do not believe that evidence to support the application of those factors was presented here. In that regard, the record shows that none of the appellants have resided at the subject property for years. At most, the property has been used for weekend retreats. While this may have been the family “homeplaee,” a majority of the family has already sold their interests in the property to the appellee. Only a minority of the family members, the appellants, have refused to do so. I believe that the sporadic use of the property by the appellants in this case does not outweigh the economic inconvenience that the appellee will suffer as a result of this property being partitioned in kind.

I am also troubled by the majority’s decision that this property should be partitioned in kind instead of being sold because I don’t believe that such would have been the case were this property going to be put to some use other than coal mining. For instance, I think the majority’s decision would have been different if this property was going to be used in the construction of a four-lane highway. Under those circumstances, I believe the majority would have concluded that such economic activity takes precedence over any long-term use or sentimental attachment to the property on the part of the appellants. In my opinion, coal mining is an equally important economic activity. This decision destroys the value of this land as coal mining property because the appellee would incur several million dollars in additional costs to continue its mining operations. As a result of the majority’s decision in this case, many innocent coal miners will be out of work.

Accordingly, for the reasons set forth above, I respectfully concur, in part, and dissent, in part, to the decision in this case.