I do not concur in the conclusion reached in the majority opinion as to the construction sought to be given to and the application made of Section 516, Revised Statutes 1919. That section is in effect, that, upon a devise to a child, grandchild or other relative who shall die before the testator, leaving lineal descendants, the latter shall take the estate, real and personal, as such devisee would have done had he survived the testator.
Statutes of like effect appear in the laws of many other states. In Missouri the enactment dates from the year 1825 (Sec. 21, p. 795, R.S. 1825) and has been continued through successive revisions to the present time. Any doubt as to the proper application of this statute is dissipated when the reason for its enactment is ascertained. Under the Common Law a devise to two or more persons became, upon their survival of the testator, a tenancy in common. Upon the death of either *Page 500 before that of the testator the interest of the one dying lapsed. The reason therefor is obvious. Until the testator died no interest devised could become vested. When this occurred the devisee being dead and having no capacity to take could not be invested with an interest which theretofore existed only in expectancy, capable of ripening into a tangible right, so far as the devisee was concerned, if he was in being when the tenancy became otherwise operative. To obviate, therefore, the possibility of intestacy and to enable his lineal descendants to take his interest, Section 516, supra, was enacted and for no other purpose. That this section cannot, in reason, be made applicable to joint tenants is rendered evident upon a consideration of the nature of that tenancy. Except as to the requirement that the tenancy shall be created by express terms in the grant or devise (Sec. 2273, R.S. 1919) it is no wise differs from the tenancy as created at Common Law. In fact we said in passing in Johnston v. Johnston, 173 Mo. l.c. 108, that "when lawfully created, it is presumed the Common Law incidents belonging to that tenancy follow."
The principal incident or, as more applicable to this controversy, the chief attribute of the tenancy, is survivorship, by which the entire estate upon the decease of any joint tenant remains in the survivor and finally in the last survivor. Under this tenancy, therefore, there can be no lapse, as the entire estate vests in the survivor upon the death of the testator. The entire estate devised having become vested nothing remains, as in a tenancy in common, to create a lapse as at common law, or under Section 516, to authorize a taking of the interest of the predeceased devisee by his lineal descendants.
It is a truism applicable in logic as in law that out of nothing nothing can come. To sustain the conclusion, therefore, that Section 516 is applicable in the construction of a devise to joint tenants, it is necessary to hold that a devisee who predeceased a testator took some tangible interest in the estate before the death *Page 501 of the latter, and as a consequence that the entire estate did not vest in the surviving devisees upon the testator's death. In short that the effect of Section 516 under circumstances as at bar, destroys the right of survivorship. A somewhat careful review of the cases here and elsewhere discloses no instance in which a statute identical with or similar in material particulars to Section 516 has been applied in the interpretation of a grant or devise creating a joint tenancy.
In Guitar v. Gordon, 17 Mo. 408, the interests involved in the will under review were those of tenants in common.
In Jamison v. Bell, 46 Mo. 546, no semblance of a fact is found from which it can be concluded that a joint tenancy was in any wise involved in the determination of the matter at issue. Throughout the entire discussion of this case in an able opinion by Judge WAGNER, it is clearly indicated that the will construed created tenancies in common.
A like rule is applicable in the construction of the section in the following cases: Dillinger v. Kelley, 84 Mo. 561; Rodney v. Landau, 104 Mo. 251; Bramell v. Adams, 146 Mo. 70; Lemmons v. Reynolds, 170 Mo. 227; Romjue v. Randolph, 166 Mo. App. 87; Peak v. Peak, 195 S.W. (Mo.) 993; Rauch v. Metz, 212 S.W. (Mo.) 353, 358.
As a further argument in favor of the right of the respondent to a share in this devise, it is alleged in the majority opinion that under Section 516 she takes as a joint tenant with her uncle, William Bollam, "just as her father, George Bollam, would have taken had he survived the testatrix." The logical effect of this argument is that by engrafting Section 516 upon the section (2273) authorizing the creation of a joint tenancy, the latter is transformed into a tenancy in common. This reasoning seeks to give to Section 516 a substitutionary and creative effect not in harmony, as we have demonstrated, with the object and purpose of its enactment. However, *Page 502 the fallacy of the argument may be rendered apparent when viewed from other coigns of vantage. A joint tenancy can only be created by the act of the parties, never by descent or by legislative enactment. Laws either with or without limitations may sanction the existence of joint tenancies, but their creation, even in expectancy, can only be by a grant or devise which, upon becoming operative, must, by the very nature of the tenancy, be limited to those named therein. If not thus limited, it ceases to be certain, and ceasing to be certain it can no longer exist. Certainty as an essential in the creation of a tenancy is axiomatic in our system of tenures from Littleton to the latest treatises and judicial utterances. The terms of the devise under review lacks nothing in certainty in either the character of the tenancy or the parties who are to take thereunder. To sustain the argument therefore of the respondent's right to take she must be substituted for one of the original takers; not by an express statute authorizing the same, but by an enactment (Section 516) the letter of which does not indicate, nor its context warrant, the conclusion that it was intended to authorize the substitution of others for the original parties to a joint tenancy.
Furthermore, if it be conceded, as it must be under the terms of the will, that a joint tenancy was therein created, it can be severed only in one of the ways recognized by law, viz: Either (1) by the act of one of the tenants; or (2) by mutual agreement; or (3) by a course of dealing between them by which their respective interests are treated as constituting a tenancy in common; or (4) by a proceeding against one of them producing an involuntary alienation of his title. [Freeman on Cotenancy (2 Ed.) sec. 29, p. 86 and notes.] No semblance of either of these ways of severance appears in this case. The further reasoning, that no title vested in George Bollam, who predeceased the testatrix, is beyond question. Unless, however, the death of George Bollam destroyed the tenancy, upon his death the right of survivorship in expectancy was in William Bollam and became operative *Page 503 upon the death of the testatrix. If this be not true there was no joint tenancy created by the will and the respondent took, if at all, by descent. Such a conclusion flies in the face of the oft repeated maxim that the testator's intention is the lodestar by which the courts are to be guided in determining the meaning of a will.
It is difficult to determine from the language employed in the majority opinion what is meant by the statement to the effect that "in the devolution of an estate as determined by a will there is no distinction between a joint tenancy and tenancy in common, where in the latter case the devise is to a class." If it is meant by this statement that a devise creating a joint tenancy is in no wise different from one creating a tenancy in common then without wasting words in argument it will be sufficient to say that the statement carries its own refutation on its face.
Although the opinion seems to hold otherwise the same distinctive differences, as we have stated, still exist under our statute as at Common Law between a joint tenancy and one in common, provided of course, the former has been created as required by statute regardless of whether the devise be to a class or to individuals. It may be stated incidentally, although not necessary to the determination of the particular question here under consideration, that it has been held elsewhere that, prima-facie, joint legatees take as a class; otherwise, where the legacy is given to them as tenants in common. All these rules yield, however, to the manifest intention of the testator. [Bolles v. Smith, 39 Conn. 217; 3 Woerner's Am. Law Admstn., p. 1467 and notes.] This aside, however, as the statement of the majority opinion concerning a devise to a class, in view of our statute and the rulings of this court, offers no tenable solution to the matter at issue. In a well considered case by MARSHALL, J., Lemmons v. Reynolds, 170 Mo. l.c. 233, it is said in defining the distinction between a devise and a grant that: "It ought also to be observed that in Arthur v. Weston, 22 Mo. 378, a supposed difference in the rule in cases of a devise of real *Page 504 property, from the rule than obtained as to a grant of real property, because a grant was a conveyance inter vivos, was suggested, and that in Hall v. Stephens, 65 Mo. 670, it was said that a liberal construction was adopted in case of a will because it was supposed to be drawn `inops consilii.' But both cases failed to note that while such reasons and rules obtained at common law, no such thing is now possible, but that deeds and wills in such matters are placed by the statute of this State upon exactly the same footing, and the common-law rule inreference to the right of survivorship by a member of a class tothe whole property granted or devised to individuals as membersof a class is expressly abolished, and that under the statute every grant or devise of real estate to two or more persons — executors, trustees and husband and wife excepted — is declared to create a tenancy in common and not a joint tenancy unlessexpressly declared in such grant or devise to be a jointtenancy. [R.S. 1899, sec. 4600, now Sec. 2273, R.S. 1919.] This provision of the law has been on the statute books of this State in its present shape ever since 1865. [G.S. 1865, p. 443, sec. 12.] And with the exception of the provision as to husband and wife has been a part of the law of this State ever since 1835." (Italics ours).
The ruling in Hoke v. Hoke, 12 W. Va. 427, quoted in the majority opinion, cannot properly be invoked to sustain the conclusions therein reached concerning the rights of the respondent. The statute of West Virginia, instead of being general, as is Section 516 of our law, and having for its obvious purpose the prevention alone of a lapse in tenancies in common, is by its terms also made especially applicable to joint tenancies. Note its language:
"If a devisee or legatee die before the testator, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have have done if he had survived the testator, unless a different disposition thereof be made or required by the will. And if the devise be made to two or more persons jointly, and one or more of them die without issue, *Page 505 the part of the estate so devised to him shall not go to the other joint devisees, but shall descend and pass to the heirs-at-law of the testator, as if he had died intestate, unless the will otherwise provide." [Sec. 3877, Code W. Va. 1913, p. 1698.]
The following additional cases are cited in the majority opinion to sustain the conclusion reached therein. A review of same will determine their relevancy.
In Strong v. Smith, 84 Mich. 567, the statute construed has no reference to joint tenancy. The facts disclosed are that the devise created a tenancy in common, and that the prevention of a lapse was the purpose of the statute.
The construction of a similar statute is found in Rudolph v. Rudolph, 207 Ill. 266, where it is said in effect that the statute under review was for the prevention of a lapse.
In Downing v. Nicholson, 115 Iowa 493, the purpose of the statute is defined to be to prevent a lapse where a devisee died before the death of the testator. The reasoning and conclusion in this case do not indicate other than a determination of the rights of the parties as tenants in common.
There is nothing in Thompson v. Myers, 95 Ky. 597, which even by implication can be said to have a bearing on the question at bar. It was simply held that where a devisee dies before the testator the issue of the former will take directly under the will and not as heirs-at-law.
In Wooley v. Paxson, 46 Ohio St. 307, there is nothing to indicate that the statute construed has any reference to joint tenancies.
In McKellar, Administratrix, 114 Me. 421, there was a gift by will of a small amount of money to a legatee who died before the testatrix, and it was held under a statute similar to that in the instant case that the children of the deceased legatee would take directly through the will and not through the estate of the deceased legatee. The court in reviewing the statute says that, "its purpose and effect is clear in that it preserves a devise from lapse by substituting *Page 506 in place of the deceased devisee his lineal descendants." From this as well as the other cases cited it will be seen that the statutes construed have reference to tenancies in common, as no lapse could occur in a joint tenancy. From the foregoing the conclusion is inevitable that these cases cannot be properly cited to sustain the conclusion sought to be made in the majority opinion.
An examination of the statutes and rulings thereon in other jurisdictions discloses that some seven or eight states have statutes alike in their material features to that of West Virginia; and in these it is held that the right of survivorship in joint tenancies is abolished; in twenty-three or twenty-four other states having statutes similar to, and in some instances identical with, Section 516, no ruling to this effect is to be found, but on the contrary where the existence of joint tenancy is authorized the statutes are limited in their application to tenancies in common.
Measured, therefore, by principles as old as the Law of Tenures and by precedents as recent as the current utterances of courts of last resort, the conclusion reached in the majority opinion is erroneous, and this case should be reversed and remanded with directions to the circuit court to enter a judgment for the appellant.