Bassler v. Rewodlinski

Marshall, J.

This case turns upon whether a joint tenancy in lands of husband and wife has the same characteristics as to survivorship under our statutes as between others at 'common law. It is conceded that the circumstances detailed -■in the findings satisfy all the essentials of a joint tenancy at ■common law in cases other than those of husband and wife. The interests were created by one and the same purchase and' by one and the same conveyance; they commenced at one and .the same time and were held by one and thdjsame possession. 'Thus we have the four unities: unity of 'interest, unity of title, unity of time, and unity of possession..; ■

The special significant incident of joint tenancy is the right of survivorship, by which on the death of any tenant his interest goes to his survivors. Anything which destroys the unity of title or interest without affecting the unity of possession will turn the interest severed from the others into a ten.ancy in common as regards the remaining joint tenants. 2 Bl. Comm. 192; 1 Washb. Real Prop. (6th ed.) § 864. The most familiar method of so severing the interest of one joint tenant from the interests of others is by alienation. As such severance to be effective is required to occur during the lifetime of the joint tenant, a devise by such a tenant is inoperative. The rule on that subject is thus stated at sec. 865 in Washburn on Real Property:

“A devise by one joint tenant of his share will be inoperative, inasmuch as the right of survivorship takes precedence *29 of suda devise. And so far does tbis principle prevail, that if such devisor be himself the survivor, -he must republish his will after the survivorship has accrued, in order to give it effect.”

Sec. 2068, Stats. 1898, which originated before the conveyance in question, abolishes joint tenancies, except where the' tenancy is expressly declared to be in joint tenancy, but by sec. 2069 grants to husband and wife are excepted. So circumstances that would create a joint tenancy generally at common law will create one between husband and wife under the Statutes, unless there be some other statute than those referred to to the contrary. In ease of husband and wife circumstances that would as between other parties create a joint tenancy only, would as to them add another element in the absence of any statutchy regulation making them tenants by the entireties,' as to which there could be no severance by partition or alienation. 17 Am. & Eng. Ency. of Law (2d ed.) 652. That feature has not existed here since the Eevision of 18Y8. Circumstances which prior thereto made the husband and wife tenants by entireties subsequently have made-them joint tenants-with the conpnon-law characteristics thereof. That is clearly the effect of Citizens' L. & T. Co. v. Witte, 116 Wis. 60 , 92 N. W. 443 , and Wallace v. St. John, 119 Wis. 585 , 97 N. W. 197 . The subject was in the latter-case treated at length by the present chief justice. Nothing-can be gained by going over the same anew. Citing from-the earlier case with approval, the court said:

“Both sections as‘so amended [referring to sec. 2340 and sec. 2342], as well as the revisers in their notes, treat the estate created by deed running to husband and wife, as in the-case at bar, as an estate 'held in joint tenancy,’ instead of being held as tenants of the entirety, as at common law. . . . Manifestly, the revisers intended by the amendments to cover cases of tenants of the entirety held by husband and wife, especially as in one section the words 'held in joint tenancy’ follow the words 'the real estate of every description,’ and in the other section follow the words 'any interest or estate therein! *30 •of any description/ and in both sections they are followed by tbe words ‘and the rents, issues, and profits thereof/ or their •equivalent. Unless that is so, the new provisions inserted in the sections are without significance.”

Counsel for appellants earnestly contend that sec. 2342r aforesaid abolishing the disabilities of married women as to the acquirement and enjoyment of property, inferentially at least, clothes such a woman, who is a joint tenant of property with her husband, with the capacity to pass her interest in such property by devise. These words are referred to:

“Any married female may . . . convey and devise real and personal property and any interest or estate therein of any description, including all held in joint tenancy with her husband, . . . with like effect as’ if she were unmarried.”

It is urged that nothing contained in Wallace v. St. John, supra, is inconsistent with the claim that such statute permits a joint tenancy between husband and wife to be severed by a devise by the wife, since the. case only dealt with severance by alienation. The conclusive answer to that seems to be that in both of the eases cited the court held that since the Eevision of 1878 a conveyance of land to husband and wife, instead of creating estates by the entireties, creates, a joint tenancy with all the common-law characteristics thereof. The language of sec. 2342, as suggested by counsel for respondents, gives to a married woman joint tenant the same rights in the property as she would possess if she were unmarried, but as in "the latter case she cannot defeat the right of sur-vivorship by devising the property, she cannot in the former.

So the learned trial court reached the right conclusion. Johanna Ertman being a joint tenant of the property with her husband, she was under a disability, the same as he was, to pass her interest or to in any way incumber it by will. Her attempt to do so did not affect his right of survivorship. Upon her death he became the absolute owner of the whole property, and the respondents as bis grantees succeeded to .such ownership.

By the Cour t—Judgment is affirmed.