
    Maria Stelz, Pl’ff, v. Minnie Schreck, Impl’d, Def't.
    
    
      (Court of Appeals,
    
    
      Filed October 6, 1891.)
    
    1. Tenancy by entirety—Effect of divorce upon deed to husband and wife.
    Tenancy by the entirety created by a deed to husband and wife is severed by an absolute divorce, and, therefore, each takes his or her proportionate share of the property as a tenant in common without survivorship.
    3. Same—Not dependent upon the conduct of the grantees.
    The estate of tenants by the entirety does not depend upon the condition that each of the grantees shall remain faithful to the obligations of the married state, and the violation of such condition judicially determined does not vest the whole estate in the innocent party.
    (Earl, J., dissents.)
    Appeals by each party from judgment of the supreme court, general term, first department, affirming judgment directing the recovery of dower by the plaintiff in an equal undivided half of certain real estate.
    
      Geo. H. Kracht, for pl’ff; Edward W. S. Johnston, for def’t.
    
      
       See 37 N. Y State Rep., 663.
    
   Peckham, J.

We agree in this case with the views expressed by the learned judges who delivered the opinions at the special and general terms of the supreme court. The sole question arises out of the decree of divorce which the husband obtained from his first wife on account of her adultery.

Did that divorce have any, and if so, what, effect upon the character of the holding of the real property by the former husband and wife ? By the conveyance the husband and wife took an estate as tenants by the entirety. Bertles v. Nunan, 92 N. Y., 152 ; Zorntlein v. Bram, 100 id., 13, Such a tenancy differs from all others. In one respect it is like a joint tenancy, in that there is a right of survivorship attached to both, but it is not a joint tenancy in substance or form. Barber v. Hirris, 15 Wend., 615 ; Jackson v. McConnell, 19 id., 175; Bertles v. Nunan, supra. It originated in the marital relation, and although the survivorship presents the greatest formal resemblance to joint tenancy, instead of founding the estate by the entirety upon the notion of joint tenancy, all the authorities refer it to the established effect of a conveyance to husband "and wife pretty much independent of any principles which govern other cases. Jackson v. McConnell, supra.

At- common law husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. These two real individuals by reason of this relationship took the whole of the estate between them and each was seized of the whole, and not of any undivided portion. They were thus seized of the whole because they were legally but •one person. Death separated them, and the survivor still held the whole because he or she had always been seized of the whole, and the person who died had no estate which was descendible or devisable. Being founded upon the marital relation and upon the legal theory of the absolute oneness of husband and wife, when that unity is broken, not by death but by a divorce a vincub, it stands to reason that such termination of the marriage tie must, have some effect upon an estate which requires the marriage relation to support its creation.

The claim on the part of the counsel for the wife is that it is only necessary the parties should stand in the relation of husband and wife at the time of the conveyance and at that time the estate vests, and no subsequent divorce can affect an estate which is already vested. But the very question is, what is the character of the estate which became vested by the conveyance ? If it were of such kind that nothing but the termination of the marriage by the death of one of the parties could affect the estate conveyed,, then of course the claim of the counsel is made out, but it is an assumption of the whole case to say that the estate vested was of the character he claims. When the idea upon which the creation of an estate by the entirety depends is considered, it seems to me much the more logical, as well as plausible, view to say that as the estate is built upon the unity of husband and wife, it never would exist in the first place but for such unity, anything that terminates the legal fiction of the unity of two separate persons ought to have an effect upon the estate whose creation depended upon such unity. It would seem as if the continued existence of the estate would naturally depend upon the continued legal unity of the two persons to whom the conveyance was actually made. The survivor takes the whole in case of death, because that event has terminated the marriage and the consequent unity of person. An absolute divorce terminates the marriage .and unity of person just as completely as does death itself, only instead of one, as in the case of death, there are in the case of divorce two survivors of the marriage, and there are from the time of such divorce two living persons in whom the title still remains. It seems to me the logical and natural outcome from such a state of facts is that the tenancy by the entirety is severed, and a severance having taken place,, each takes his or her proportionate share of the property as a tenant in common, without survivorship. It is said that in such case it ought to be a joint tenancy, but I see no reason for that, claim. As it has been held that seizin by the entirety does not create a joint tenancy either in substance or form, 19 Wend., supra, and as a tenancy by the entirety depended wholly upon the marital relationship, there can be no reason why the seizin should be turned into a joint tenancy by virtue of the very fact which terminated the unity of person upon which the right of survivor-ship is itself founded and to which it owed its continued existence.

It is true that a conveyance of this kind if made to two ■ persons who were not husband and wife, would at common law have created a joint tenancy. But our statute provides that every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless expressly declared to be a joint tenancy. 1 R. S., 727, § 44. This statute did not reach an estate by the entirety, nor did the statutes of 1848 and 1849, and 1860 and 1862. Bertles v. Nunan, supra. It, therefore, still exists under our law.

We have seen, however, that a tenancy by the entirety is not a joint tenancy in form, or substance. Upon what principle should the termination of the former species of tenancy, resulting from an absolute divorce, be changed into the latter in the face of our statute, relating to joint tenancies ? The conveyance did not expressly declare that the tenancy was to be a joint tenancy, and therefore when the original character of the tenancy by the entirety is changed, it cannot be transformed into that of a joint, tenancy without a clear violation of our statute.

The counsel for the defendant urges that we are giving by this decision a retroactive effect to a decree of divorce in a case not warranted by the statute and in violation of the well settled rule in this state as to the effect of such a decree. He says that we change the effect of the deed of conveyance and that the decree of divorce not only severs the unity of person from the time of its entry, but that we allow it to date back to the date of the conveyance and to give an effect to such conveyance that it did not. have at the time of its execution. We think not.

We do not at all question the contention of the defendant’s counsel that a decree of divorce in this state only operates for the future and has no retroactive effect or any other effect than that-given by statute. But we hold that the character of the estate conveyed was such in its creation that it depended for its own continuance upon the continuance of the marital relation and when that relation is severed, as well by absolute divorce as by death, the condition necessary to support the continuance of the-original estate has ceased and the character of the estate has for that reason changed. The estate does not revest in the grantor or his heirs, for no such condition can be found in the law or in the nature of the estate, and it must therefore remain in the grantees, but by an altered tenure. Their holding is now a holding of two-separate persons, and for the reasons already given such holding-should be by tenancy in common and of course without any survivorship.

I think the contention that the first wife is entitled to the whole of the estate as survivor of her husband cannot be maintained. Although the question is new in this state it has been somewhat-debated in the courts of some of the other states. In Harrer v. Wallner, 80 Ill., 197, and Lash v. Lash, 58 Ind., 526, and Ames v. Norman, 4 Sneed, 683, similar views to those we have herein stated are set forth. A contrary decision has been made in Michigan in the case of Lewis, reported in 48 N. W. Rep., at 580. We have-read the opinion in that case, but we feel that our own view is more in accord with legal principles, and we cannot therefore follow it.

Upon the defendant’s appeal the judgment ought to be affirmed.

Upon the appeal of the plaintiff her counsel contends that there is a condition annexed to the estate by the entirety which is implied by law, and the condition is that each of the grantees shall remain faithful to the obligations of the married state and shall not by his or her misconduct cause a dissolution of the marriage relation upon which the estate depends. I find no warrant for implying any such condition in the character of the holding, and still less for the result which as he claims flows from a violation of such condition. ' Its violation (judicially determined) results according to the plaintiff’s argument in the immediate vesting of the whole estate in the innocent party to the marriage, just the same as if the other party thereto were actually dead instead of divorced. None of the authorities treat the estate as dependent upon any such condition, and however proper it might be to enact by legislative authority a condition of that nature, this court has not that power.

It is unnecessary to add anything further to the views which have been expressed by the learned judges of the supreme court - in this case, and we are of the opinion that the judgment appealed from should be affirmed, and as neither party appealing has succeeded here, the affirmance should be on both appeals without icosts.

All concur, except Earl, J., dissenting, and Finch, J., absent.  