It is said that the reason upon which the common -law rule under consideration was based has ceased to exist, and hence that the rule should be held to disappear. It is impossible, now, to determine how the rule, in the remote past, obtained a footing, or upon what reason it was based, and hence it is impossible now to say that the reason, whatever it was, has entirely ceased to exist. There are many rules appertaining to the ownership of real property originating in the feudal ages, for the existence of which the reason does not now exist, or is not discernible, and yet, on that account, courts are not authorized to disregard them. They must remain until the legislature abrogates or changes them, like statutes founded upon no reason, or upon reasons that have ceased to operate.

It was never, we believe, regarded as a mischief that under a conveyance to husband and wife they should take as tenants by the entirety, and we have no reason to believe that it was within the contemplation of the legislature to change that rule. Neither do we think that there is any public policy which requires that the statutes should be so construed as to change the common-law rule. It was never considered that that rule abridged the rights of married women, but rather that it enlarged their rights, and improved their condition. It would be against the spirit of the statutes to cut down an estate of the wife by the entirety to an estate as tenant in common with her husband. If the rule is to be changed it should be changed by a plain act of the legislature, applicable to future conveyances; otherwise incalculable mischief may follow by unsettling and disturbing dispositions of property made upon the. faith of the common-law rule. The courts certainly ought not to go faster than the legislature in obliterating rules of law under which many generations have lived and flourished and the best civilization of any age or country has grown up.

We are, therefore, of opinion that the judgment should be affirmed, with costs.1

1 But if the intent of the deed is clear a grant to husband and wife may make them joint-tenants, Thornburg v. Wiggins, p. 940, supra; Joose v. Fay, 219 NY. 7; or tenants in common, Miner v. Brown, 133 N. Y. 308. - Ed.

Stelz V. Shreck

128 New York, 263. - 1891.

Action for the admeasurement of dower. Cross appeals from an order of the General Term denying motions by both plaintiff and defendant for a new trial.

The premises in question were conveyed in 1886 to William Stelz and Minnie Stelz, his wife. William thereafter obtained a divorce from Minnie for her adultery; later he married the plaintiff, Maria Stelz, and died intestate. Minnie is the defendant. Maria claims dower in the whole estate; Minnie claims to be absolute owner of the entire parcel of land.

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. Berths 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. Harris, 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 seised of the whole and not of any undivided portion. They were thus seised 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 seised 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 vinculo, 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 first 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 it, 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 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 founded upon the unity of husband and wife, and 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 seisen 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 seisen should be turned into a joint tenancy by virtue of the very fact which terminated the unity of persons upon which the right of survivorship is itself founded, and to which it owed its continued existence.