Simons v. McLain, 51 Kan. 153

51 Kan. 153 | Kan. | 1893

The opinion of the court was delivered by

Horton, C. J.:

One question only is presented by the record, and that is, whether, on the 22d day of March, 1877, the date of the death of E. G. Tewksbury, estates by joint tenancy existed in Kansas. By the common law, if an estate was conveyed to two or more persons without indicating how the same was to be held, it was understood to be in joint tenancy. A joint tenancy is defined to be, “ when several persons have any subject of property jointly between them in equal shares by purchase.55 “ Each has the whole and every part, with the benefit of survivorship, unless the tenancy be severed.55 In the quaint language of the law, they hold each per my et per tout, the effect of which, technically considered, is that, for purposes of tenure and survivorship, each is the holder of the whole. The grand incident of joint tenancy is survivorship, by which the entire tenancy, on the decease of any joint tenant, remains to the survivors, and at length to the last survivor. (1 Washb. Real Prop., 5th ed., §§406, 408; Black, Law Diet. 651; Anderson, Law Diet. 1018. By the policy of the American law, “joint tenancy, if not a subject of aversion, is rarely a matter of preference.” (Freeman, Coten., 2d ed., §35.) In Connecticut, the judiciary, at an early day, entirely ignored what they styled “the odious and unjust doctrine of survivorship.” (Phelps v. Jepson, 1 Root, 48; Whittelsy v. Fuller, 11 Conn. 340.) In Ohio, the supreme court held that joint tenancy did not exist, on account of the statute in that state of partition and distribution. (Sargeant v. Steinberger, 2 Ohio, 305; Penn v. Cox, 16 id. 30; Wilson v. Fleming, 13 id. 68.) But in most of the states the rule of the common law concerning estates in joint tenancy continued until abolished by statute. (1 Washb. Real Prop., 5th ed., 677, 678, notes, with states and statutes referred to.) In this state, the legislature, on March 10,1891, passed an act “to abolish survivorship in joint tenancy.” (Laws of 1891, ch. 203, p. 349.)

A majority of this court, in Baker v. Stewart, 40 Kas. 442, and Shinn v. Shinn, 42 id. 1, recognized “estates in entirety,” where the deed is made to the husband and wife, and ruled that in such a case the survivor of the two, at the death of the other, was entitled to the entire estate. This, of course, was a full adoption of the rule of “ estates in entirety,” as recognized by the common law. The writer of this dissented in that case. But following the law thus declared by the majority of the court, and in view of the recognition of joint tenancy by the statutes of the state, and' that “survivorship in joint tenancy” was not expressly abolished by statute until 1891, long after the execution of the deed of the 17th of May, 1872, and long after the death of E. G. Tewksbury, on the 22d of March, 1877, we must hold that estates by joint tenancy existed in Kansas prior to March 10, 1891. The reasons are much stronger for recognizing estates by joint tenancy as existing in Kansas prior to March 10,1891, than that “estates in entirety” existed, in view of the statutes and decisions of this state recognizing the separate existence of the wife from the husband. “ The jus acorescendi is as much an incident of estates in joint tenancy as of estates in entirety.” (2 Cooley Bl. Com. 181, and note 2; 1 Washb. Real Prop. 406; Dowling v. Salliotte, 83 Mich. 131.)

Paragraph 7281, chapter 119, Gen. Stat. of 1889, reads:

“ The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state; but all such statutes shall be liberally construed to promote their object.”

See, also, the act in relation to landlords and tenants, concerning joint tenants. (Gen. Stat. of 1889, ¶¶ 3630, 3631.) Then, again, the legislature, in passing the act of March 10, 1891, abolishing joint tenancy, impliedly admitted the previous existence of such estates. That act closes as follows: “But nothing in this act shall be taken to affect any trust estate.” (Laws of 1891, ch. 203.)

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the .views herein expressed.

All the Justices concurring.