The opinion of the court was delivered by
VALENTINE, J.:
It appears that on November 23, 1877, Joshua Baker and his wife Elizabeth Baker, who owned certain real estate in • Franklin county, conveyed the same by a general warranty deed to their son Frank A. Baker and his wife Alice Baker, which deed was duly recorded. Afterward, and prior to October 3, 1881, Alice Baker died, leaving surviving her her husband, and two children born during the marriage. Upon these facts, and some others not necessary to mention, the main question arising in the case, and the one now presented to this court, is whether, on the one side, the foregoing deed conveyed the foregoing real estate to Frank A. Baker and his wife as tenants in common, or whether, on the other side, it conveyed it to them as joint tenants or tenants in entirety. If the deed conveyed the land to Frank A. Baker and his wife as tenants in common, then the decision of the court below is correct, and must be affirmed; but if it conveyed it to them either as joint tenants or as tenants in entirety, then such decision is admitted to be erroneous. The real question, stated more explicitly, is this: At the death of Alice Baker, who took the foregoing real estate ? Did Frank A. Baker, as the survivor of the two, and as one of two joint tenants or tenants in entirety, take the whole of the estate, or did he, as a tenant in common with his wife, take only the one-half thereof, and leave his wife’s heirs to take the other half ? No question has ever been presented in this case as to who had the right to control the property during the joint lives of Frank A. Baker and his wife, or whether either, or both together, could have legally sold the same, or any interest therein, during that time. These matters, however, will be considered to some extent hereafter. We suppose it will be admitted that a deed might be executed to a husband and wife which would convey to them, if the language of the deed [445] explicitly said so, any one of the foregoing estates — that is, an estate in common, or a joint tenancy, or a tenancy in entirety — for such has always been the law, and property owners can generally convey their property just as they please.
Walker, J., however, in the case of Smith v. Smith, 30 Ala. 642, 643, used the following language:
“The reason why, under a conveyance to husband and wife, they did not take either as joint tenants or tenants in common, is, that they were, according to the principles of the common law, incapable of so taking.”
Mr. Bishop, in his work on Married Women, volume 2, § 285, criticises this language as follows:
“Let us pause to say that the majority of legal persons would probably deny this proposition of the learned judge; because, as we saw in the first volume, [vol. 1, §§ 616, 618,] husband and wife, if they were joint tenants or tenants in common before marriage, continue to be the same after marriage, and do not become tenants by the entirety of the estate, which shows them to be capable of holding as tenants in common or as joint tenants; and it is perhaps the better doctrine at the common law, that a conveyance to them after marriage may, by express words, create in them either of these two tenancies.”
Mr. Washburn, in his work on Eeal Property, volume 1, p. *425, uses the following language:
“It is always competent, however, to make husband and wife tenants in common, by proper words, in the deed or devise by which they take, indicating such an intention.”
Chancellor Kent, in his Commentaries, volume 4, p. *363, uses the following language:
“It is said, however, to be now understood that husband and wife may, by express words, be made tenants in common by a gift to them during coverture.”
(See also McDermott v. French, 15 N. J. Eq. 78, 80.) Certainly a husband and wife may be made tenants in common by a separate deed to each, conveying to each a separate moiety of the estate. This may also be accomplished by a separate conveying clause as to each in the same deed; and certainly no good reason can be given why the same thing might not [446] be accomplished by any express words in a single deed executed to the two together, showing the intention of the parties to be that the husband and wife should take the estate as tenants in common; but it would require express words, or words strongly implying such an intention. Without such words, the estate conveyed would be an estate in entirety. We suppose it will also be admitted that the deed in the present case would at common law have conveyed the property in entirety to Frank A. Baker and his wife, Alice Baker, and would not have conveyed it to them as ordinary joint tenants or as tenants m common. We suppose it will also be admitted that if the deed in the present case conveyed the estate to Frank A. Baker and his wife, either in entirety or as joint tenants, then that Frank A. Baker, as the survivor of the two, was, at the death of his wife, entitled to the land, and the defendant in error, plaintiff below, should not recover in this action. But if the deed did not so convey such estate, and conveyed the same to Baker and wife purely, solely and entirely as tenants in common, then the plaintiff in error, defendant below, was not, at the death of his wife, entitled to the land, and the defendant in error, plaintiff below, should recover in this action. Almost all authority is in favor of the theory that such deed conveyed an estate in entirety to Frank A. Baker and wife, and that he, as the survivor of the two, was, at the death of his wife, entitled to the entire estate. Among the decided cases supporting this view of the case are the following: Myers v. Reed, (U. S. C. C. of Ore.) 17 Fed. Rep. 401; Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 id. 68; Hall v. Stephens, 65 id. 670; Robinson v. Eagle, 29 Ark. 202; Harding v. Springer, 14 Me. 407; Brownson v. Hull, 16 Vt. 309; Shaw v. Hearsey, 5 Mass. 520; Fox v. Fletcher, 8 id. 274; Draper v. Jackson, 16 id. 480; Wales v. Coffin, 13 Allen, 213; Pierce v. Chace, 108 Mass. 254; Pray v. Stebbins, 141 id. 219; same case, 55 Am. Rep. 462; Bertles v. Nunan, 92 N. Y. 152; same case, 44 Am. Rep. 361; Zorntlein v. Bram, 100 N. Y. 121 Kip v. Kip, 33 N. J. Eq. 213; Buttlar v. Rosenblath, 42 id. 651; same case, 9 Atl. Rep. 695; Bates v. Seely, 46 Pa. St. 248; Diver [447] v. Diver, 56 id. 106; French v. Mehan, 56 id. 286; McCurdy v. Canning, 64 id. 39; Fleek v. Zillhaver, 117 id. 213; same case, 12 Atl. Rep. 420; Hannan v. Towers, 3 Harr. & J. (Md.) 147; Marburg v. Cole, 49 Md. 402; same case, 33 Am. Rep. 266; Den v. Whitemore, 2 Dev. & B. (N. C. L.) 537; Den v. Branson, 5 Ired. (N. C. L.) 426; Woodford v. Higly, (1 Winst. 237,) 60 N. C. 234; Doe v. Garrison, 1 Dana (Ky.) 35; Banton v. Campbell, 9 B. Mon. 587, 594; Babbitt v. Scroggin, 1 Duv. (Ky.) 272; Taul v. Campbell, 7 Yerg. (Tenn.) 319; Ames v. Norman, 4 Sneed (Tenn.) 683; Berrigan v. Fleming, 2 Lea (Tenn.) 271; Hemingway v. Scales, 42 Miss. 1; same case, 2 Am. Rep. 586; McDuff v. Beauchamp, 50 Miss. 531; Allen v. Tate, 58 id. 585; Ketchwn v. Walsworth, 5 Wis. 95; Bennett v. Child, 19 id. 362; Fisher v. Provin, 25 Mich. 347; Ætna Ins. Co. v. Resh, 40 id. 241; Manwaring v. Powell, 40 id. 371; Jacobs v. Miller, 50 id. 119; Bevins v. Cline, 21 Ind. 37, 41; Davis v. Clark, 26 id. 424; Arnold v. Arnold, 30 id. 305; Falls v. Hawthorne, 30 id. 444; Simpson v. Pearson, 31 id. 1; Chandler v. Cheney, 37 id. 391; Barnes v. Loyd, 37 id. 523; Jones v. Chandler, 40 id. 588; Anderson v. Tannehill, 42 id. 141; Hulett v. Inlow, 57 id. 412; same case, 26 Am. Rep. 64; Patton v. Rankin, 68 Ind. 245; same case, 34 Am. Rep. 254; Carver v. Smith, 90 Ind. 222; same case, 46 Am. Rep. 210.
On the side of the defendant in error, cases are cited from Iowa, Illinois and New Hampshire, which are relied on as supporting the opposite view of the case. But these cases were decided under special statutes, and therefore are not authority at all. Under such statutes there could not be any joint tenancy or tenancy by entirety, but only a tenancy in common, and therefore the decisions in those states could not have been otherwise than as they were. The statute of Iowa upon this subject reads as follows:
“ Sec. 1939. Conveyances to two or more, in their own right, create a tenancy in common, unless a contrary intent is expressed.” (McClain’s Annotated St. of Iowa, 1882, §1939.)
The statute of Illinois upon this subject reads as follows:
“ Sec. 5. No estate in joint tenancy, in any lands, tenements, [448] or hereditaments, shall be held or claimed under any grant, devise, or conveyance whatsoever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors and trustees, (unless otherwise expressly declared as aforesaid,) shall be deemed to be in tenancy in common.” (Starr & C. Annot. St. of Illinois, 1885, p. 571, ch. 30, ¶ 5.)
The statute of New Hampshire upon this subject reads as follows :
“Sec. 14. Every conveyance or devise of real estate made to two or more persons shall be construed to create an estate in common and not in joint tenancy, unless it shall be expressed therein that such estate is to be holden by the grantees or de-visees as joint tenants, or to them and the survivor of them, or other words are used clearly expressing an intention to create a joint tenancy.
“Sec. 15. Joint heirs shall be deemed tenants in common.” (General Laws of New Hampshire, 1878, p.325, ch. 135, §§14, 15.)
It seems to be admitted that at common law the deed in the present case would convey an estate in entirety to Frank A. Baker and his wife, but it is claimed that the rule of the common law has been changed by our statutes. No statute, however, has been referred to, nor can any statute be found 2’nó'statutoíy-change. that enacts directly that such a deed should not convey such an estate. Indeed, there is no statute J that pretends in direct terms to change or modify, the common law in any particular with respect to such a deed. It is claimed, however, that the married woman’s act by indirection or impliedly changes or modifies this rule of the common law. Now, how such act changes or modifies the rule of the common law in this regard, it is difficult to understand. That act was passed by the legislature, presumably, for the benefit of married women, and not to take away from them any of their rights or privileges. Now nine-tenths of the married women of this country are younger than their husbands. And the life tables, wherever they state the expectancy [449] of life for males and females separately, show that the expectancy of life for women is greater than that for men of the same age and health. See especially Dr. William Farr’s tables in any volume of the American Almanac from 1879 up to the present time. Hence, in the great majority of instances married women must survive their husbands. Now if the married woman’s act transforms an estate in entirety into an estate in common, then it will, in a great majority of instances, divest married women of one-half of their estates. Without the act, a married woman, holding with her husband an estate in entirety, would, when he dies, (if she survives him,) take the entire estate; but with the act, if it is to be construed as the defendant in error would desire to have it construed, she would take under such circumstances only one-half of the estate, and must lose the other half. As will be shown hereafter, however, this 'act has nothing to do with the estate which either the husband or the wife shall hold, but only with the possession, control and enjoyment by married women of their ■own separate property, of estates which they in fact own. For the purposes of this case it will be admitted, and it is our opinion that under the statutes of this state relating to married women, they have all the rights, powers and privileges that married men have, and may control their separate property, and buy and sell and trade and traffic to the same extent that married men may, and with like effect and consequences. But none of these things affect this case. It will be admitted that Alice Baker, while living, had the right to control the real estate in question to the same extent that her husband, Frank A. Baker, had; but that does not affect this case in the least. It does not determine what estate of inheritance passed from Joshua Baker and wife to Alice Baker or to Frank A. Baker. It only determines that each had during their joint lives an equal right to control the estate that did in fact pass. The estate that did in fact pass was an estate for life to each of them, with a contingent estate in fee simple, or of inheritance to each of them, the latter estate depending upon [450] the contingency as to which should outlive or survive the , ^ 1. Land, conveyed wife-rígMsnd ofsumvor. other. So long as each lived, each had the right ° ' ° possess and enjoy the entire estate; but when one other took the entire estate. Undoubtedly, such an estate could have been created by the deed from Joshua Baker and wife to them, if the deed had expressly said so, and under all the authorities the deed that was actually executed would at common law have conveyed just such an estate as conclusively and certainly as though it had expressly said so. And nearly all the authorities hold that the statutes relating to married women, and giving to them the right to control and manage their own separate property, do not in the least affect the question as to what estate passes by a deed to a husband and wife, or what either shall take on the death of the other, and these authorities hold that such estate is still one of entirety. Among the authorities to this effect we would cite-the following: Diver v. Diver, 56 Pa. St. 106, 109; McCurdy v. Canning, 64 id. 39, 41; Kip v. Kip, 33 N. J. Eq. 213; Buttlar v. Rosenblath, 42 id. 651; same case, 9 Atl. Rep. 695; Chandler v. Cheney, 37 Ind. 391, 412, et seq.; Carver v. Smith, 90 id. 222; same case, 46 Am. Rep. 210; McDuff v. Beauchamp, 50 Miss. 531; Fisher v. Provin, 25 Mich. 347; Robinson v. Eagle, 29 Ark. 202; Bertles v. Nunan, 92 N. Y. 152; same case, 44 Am. Rep. 361; Zorntlein v. Bram, 100 N. Y. 13; Marburg v. Cole, 49 Md. 402; same case, 33 Am. Rep. 266; Bennett v. Child, 19 Wis. 362. See also 2 Bish. Mar. Wom. §§ 284 to 289. In the case of Buttlar v. Rosenblath, 42 N. J. Eq. 651, (decided in 1887,) same case, 9 Atl. Rep. 695, it is decided as follows:
“1. A conveyance of land, since the passage of the married woman’s act of 1852, to husband and wife, does not create a tenancy in common.
“ 2. That act endows the wife with the capacity, during the joint lives, to hold in her possession, as a single female, one-half the estate in common with her husband; the right of sur-vivorship still-exists as at common law.
“ 3. To constitute a tenancy in common between husband [451] and wife there must be in the conveyance an expression of art intention to do so.”
In the case of Diver v. Diver, 56 Pa. St. 106, 109, Mr. Justice Strong, who was afterward one of the justices of the supreme court of the United States, in delivering^the opinion of the court, used the following language:
“But it is said the act of 1848, by destroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common; that is, that such a deed conveys a different estate from that which the same deed would have created, if made prior to the passage of the act. To this we cannot assent. It mistakes alike the letter and the spirit of the statute, imputing to it a purpose never intended. The design of the legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife’s property by removing it from under the dominion of the husband. To effectuate this object, she was enabled to own, use and enjoy her property, if hers before marriage, as fully after marriage as before. And the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her, as her own separate property,, exempt from liability for the debts and engagements of her husband. A1Í this had in view the enjoyment of that which is hers, not the force and effect of the instrument by which an estate may be granted to her. It has nothing to do with the nature of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds them, and regulates the enjoyment; that is, the enjoyment of the estate after it has vested in the wife. And the mode of authorized enjoyment is significant. It is to be as her separate property is enjoyed, as property settled to her separate use. The act therefore no more destroys her union with her husband than does a settlement of property for her separate use. To a certain extent she is enabled, but no more than is necessary, to protect her property after it has been acquired. "We have held that she can convey her lands only by joining in deed with her husband. (Pettit v. Fretz, 9 Casey, 118.) This is a clear recognition of the existing unity of the two. It need not be repeated that no greater effect is to be given to the act of 1848 than its language and spirit demand. It is a remedial statute, and we construe it so as to suppress the mischief against which it is aimed, but not as [452] altering the common law any further than is necessary to remove that mischief. To hold it as operating upon the deed conveying land to a wife, making such deed assure a different estate from what it would have assured without the act, is to lose sight of the legislative purpose. Were we to do so, it would become in many cases a means of divesting her of her property, instead of an instrument of protection. In the present case, if it has converted the estate granted to Diver and his wife into a tenancy in common, it has taken from her her ownership and enjoyment of the entirety during her husband’s life and her right of survivorship to the whole.”
The case of Carver v. Smith, 90 Ind. 222; same case, 46 Am. Rep. 210, is a late case, and equally explicit upon this subject. And see also the latest New York- cases upon this subject.
As we have before stated, the question as to who had the control of this property, or how it should be controlled while Alice Baker was alive, is not a question in this case. The only question in this case is, who took the property after her death ? But suppose that this question shall nevertheless be considered. The right or privilege or power of the husband, at common law, to control the use of the wife’s real estate was never any part of the estate held by either, but was always simply a right or privilege or power growing out of and founded upon the marriage relation. At common law the husband had such right of control over all the wife’s real estate, and not merely over such of her real estate as was held by the two in entirety. Now cannot this right to the control of the wife’s real estate be changed by statute without abolishing or destroying the nature of the estate held by the husband or the wife, or both, the inheritance? Nearly all the authorities say that this may be done. May not the common law upon any given subject be amended or altered by statute without wholly destroying the entire common law upon that subject? May not the common law on any subject be altered in part and left in force in part? The common law in this state has probably been so amended that the husband and wife have an ■equal right to control all the land which they own in entirety, [453] but in other respects the estate of entirety is probably precisely the same as it was before the statutes relating to mar.ried women took effect. With this change in the right of the husband to control the real estate owned by his wife or by him and her in entirety, the estate of entirety has become more like the ordinary estate of joint tenancy, though it is not yet strictly like such an estate. It does not matter in this case, however, which of these two estates the present is or was. If it was either an estate in entirety or an estate in joint tenancy, then the claim of the defendant in error is untenable. The claim of the defendant in error is tenable only upon the theory that the estate in the present case was one of pure tenancy in common.
It is also urged, faintly, but still urged, that the statutes relating to descents and distributions have transformed the estate in entirety into an estate or tenancy in common. How this has been done, however, is not made plain. It is difficult to understand just how any person may transmit to another, by death or otherwise, more than such first-mentioned person ever owned. Only a descendible estate can pass to an heir. In estates in entirety held by a husband and wife, each owns a life estate in the entire property, but the statutes relating to descents and distributions do not pretend to affect such estates. They do not enact that a life estate shall pass to an heir, and of course such an estate cannot. Each (the husband or wife) also owns a contingent estate in fee simple in the entire estate based upon the survivorship of one as to the other. The survivor takes the whole estate, and the heirs of the other take nothing. The one who dies first renders it utterly impossible for the contingency of survivorship on that one’s part, the contingency upon which that one’s inheritable estate is founded, ever to take place, and renders it utterly impossible for that one ever to obtain any inheritable interest in the property, or any interest which could by any possibility be transmitted to heirs. By that one’s death that one’s contingent inheritable estate is ended and determined, and ended and determined before any absolute inheritable estate ever be[454] came vested in him or her, and hence that one, at his or her death, could have nothing which could be transmitted to heirs. There have always been laws in all the states with reference to descents and distributions, and yet it has never before been supposed that such laws prevented or hindered the creation of estates in entirety. Nearly all the courts hold that estates in entirety may still exist, and may be created by an ordinary deed of general warranty to the husband and wife, and such estates are no more against our present laws in Kansas relating to descents and distributions than such estates have always been against all other laws concerning descents and distributions in this and other states. So far as the homestead is concerned, our laws concerning descents and distributions recognize the right of the survivor, either the husband or the wife, and in whosesoever name the title may be vested, to occupy such homestead, and the whole of it, after the death of the other. (See act concerning descents and distributions, §§ 2, 28.) The homestead is a kind of “community” property. No other statutes have been referred to as abolishing estates in entirety, and we think there are none.
Under the facts of this case we think that Frank A. Baker as the survivor of his wife Alice Baker is entitled to the entire estate, and that no part of the estate passed to her heirs.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the defendant below and against the plaintiff below for costs.
JOHNSTON, J., Concurring.