In February, 1906, John C. Klatzl executed a deed conveying, in form, real estate owned by him to himself "and Mary Emma Klatzl, his wife, * * * as tenants of the entirety," and containing the ordinary covenants of warranty and quiet enjoyment. John C. Klatzl having died, the comptroller of the state asserted, for the purpose of the transfer tax, that the conveyance constituted the grantees owners, as tenants in common, of the granted estate, while the widow, Mary Emma Klatzl, claimed, on the other hand, that it constituted them tenants by the entirety. We are to determine the true operation and effect of the deed.
The common law ruled that a conveyance to two persons, who were then husband and wife, created and vested in then an ownership as tenants by the entirety. *Page 90 The conveyance was treated as being to a unity and as creating an indivisible title or ownership. The rule was based on the doctrine of unity of person created by marriage.
The overwhelming weight of judicial decision within the United States, amounting indeed almost to unanimity, is that the rule is not abrogated — tenancy by the entirety is not abolished, by the various statutes generally denominated the married woman's statutes. We so held in the case of Bertles v. Nunan (92 N.Y. 152). It is unnecessary to repeat or reconsider the reasoning and conclusion of that case. They were satisfactory to us then and their accuracy and soundness have never been questioned. It is true that since our decision in that case other statutes of the class have been enacted (See Domestic Relations Law [Cons. Laws, ch. 14], §§ 51, 56, and the prior analogous statutes), but the conclusion it established is still the law. There is no statute which expressly or through legislative intention abolishes the title of tenancy by the entirety or annuls the common-law rule. As already stated, the legislative removal of disabilities and restraints of the wife incident to the unity of person and the bestowal on her of capabilities have not disrupted the unity. The common-law condition has been no further abrogated by the statutes than is to be understood from the unmistakable import of the language used in them. (Bertles v. Nunan, 92 N.Y. 152;Markey v. County of Queens, 154 N.Y. 675, 687.) With the judicial interpretation of the statutes considered in Bertles v. Nunan before them, it is clear that the legislature did not intend in the subsequent cognate statutes to change or affect our decision. Mere implication will not uphold a destruction of the common-law rule. Unity of person between a man and a woman is created by their marriage and continues while they are husband and wife. (Stelz v. Shreck, 128 N.Y. 263.) A grant or devise to them of real estate creates an estate by the *Page 91 entirety, an estate held by them as one person under one title. The survivor, upon the death of the other, does not take a new acquisition, but holds under the original grant or devise, the estate being merely freed from participation by the other. There is no succession in or transfer of title.
We need not here attempt to determine whether the venerable doctrine that marriage constitutes husband and wife one person has its roots in the early ecclesiastical law of England or to what extent, if any, the legal rights, duties and disabilities of a wife evolved from the guardianship of the wife by the husband as held in the ruder and less law-governed ages. It is sufficient for the present discussion that the doctrine did not have its source in or did not result from an intent, purpose or custom to deprive or withhold from a wife civil or property rights. Indeed it may have arisen before individual property rights were clearly developed or firmly established. It describes and defines a status, having recognition in the law, which in its origin was independent of and not consequent upon the disabilities or restraints of married women. Rather is it true that in the common law those disabilities and restraints were predicated upon or incidental, although not essential, to the existence of the status. Thus the common law, while declaring unequivocally that husband and wife were one person, held also that they might own lands as tenants in common. (Miner v. Brown, 133 N.Y. 308;McDermott v. French, 15 N.J. Eq. 78; 1 Washburn on Real Property [6th ed.], p. 562; 4 Kent's Com. [14th ed.] p. 414.) The legislative removal of the disabilities or restraints resting upon, and recognition of rights or capabilities in the wife do not destroy the unity of person from which the tenancy by the entirety springs, because such unity was not caused by, did not arise from or rest upon the existence or the absence of those disabilities or restraints. It was of the persons of husband and wife, not necessarily of their properties. *Page 92 The disabilities sprang from or were incidents of the unity. Statutes may remove or modify them and not destroy the unity. The right and power of the wife, given by legislative enactment, to own, possess and control a separate estate and business, to receive, transfer or devise property in her own name, to contract with and give and receive without the intervention of a trustee or third person conveyances to and from her husband, to partition and divide with him the estate owned in tenancy by the entirety, to testify and give evidence against him, have not shattered nor absorbed the common-law doctrine of the unity of the person of husband and wife, or its off-spring, the estate of tenancy by the entirety. Property and civil rights and responsibilities may be disunited and independent between them, but conjugal responsibilities, rights, duties and authority remain. (Bertles v. Nunan, 92 N.Y. 152; Diver v. Diver, 56 Penn. St. 106;Stelz v. Shreck, 128 N.Y. 263; Hiles v. Fisher, 144 N.Y. 306;Grosser v. City of Rochester, 148 N.Y. 235; DeBrauwere v. De Brauwere, 203 N.Y. 460; Baker v. Stewart,40 Kans. 442.)
When the conveyance here under consideration was executed, the grantees were husband and wife. A conveyance to them would vest in them an estate of tenancy by the entirety, unless it otherwise expressly stipulated. The statutes (Laws of 1896, ch. 272, § 26; Laws of 1892, ch. 594; Laws of 1887, ch. 537, § 1; Laws of 1880, ch. 472, § 1; Domestic Relations Law, § 56) which authorized a conveyance between husband and wife did not disintegrate the unity of their persons created by the marital relation; no more did the conveyance by the husband made under the statutory empowerment and authority. If the statute which authorized the conveyance did not sunder the unity, the conveyance it authorized did not. They were the grantees therein and the legal unity of persons receiving the indivisible, inseverable title to the property conveyed. There existed the legal unity which *Page 93 characterizes the relation of husband and wife and the conveyance to the husband and wife. The estate of tenancy by the entirety neither has nor requires another component. While there was the unity of person which begets and sustains the estate of tenancy by the entirety, under the statute each was wholly free, by contract, gift, grant or devise, to vest any legal estate in themselves or the other. In Winter v. Winter (191 N.Y. 462,472) we said: "The intervention of a trustee or third person is no longer necessary for the conveyance of real estate, or the partition thereof with bar to dower and curtesy. (Dom. Rel. Law, § 26.) In view of the legislation which permits husbands and wives to contract directly with each other, any contract for separation and support, which they could formerly have made by means of a trustee, they can now make without one. The only reason for resorting to a trustee was the ancient rule that a husband and wife were one person, but both the reason and the rule ceased to exist when the common law was supplanted by statute. A wife is now permitted to contract with the freedom of a feme sole and by the express command of the legislature she can at last contract even with her husband the same as if they were unmarried, except that they cannot alter or dissolve the marriage and she cannot release him from his obligation to support her. The old formality was necessary when the wife had no legal existence apart from her husband, who in contracting with her simply contracted with himself according to the theory of the law. That theory has been overthrown by statute and the opposite theory substituted, so that there is no longer any necessity for a trustee."
In the jurisdictions in which the law recognizes tenancy by the entirety in personal property, of which this state is not one (Matter of Albrecht, 136 N.Y. 91), an obligation to pay to the husband and wife moneys belonging to and loaned by the husband to the obligor *Page 94 vests them with such estate. (Klenke's Estate [No. 1], 210 Pa. St. 572; Brewer v. Bowersox, 92 Md. 567; Baker v.Baker, 123 Md. 32. See, also, Augsbury v. Shurtliff,180 N.Y. 138.)
The argument might be made that the conveyance was in force and effect to the wife alone and in fee simple, because a grantor cannot convey directly to himself, and it is well settled that where one of several grantees, for any reason, is incapable of taking, one or others capable of taking shall take the whole. (Dowset v. Sweet, 1 Ambler's Rep. 175; Humphrey v.Tayleur, 1 Ambler's Rep. 136; McCord v. Bright, 44 Ind. App.275; Cameron v. Steves, 9 N. Brunswick, 141.) Without assenting to such rule in its full substance and scope and holding the opinion that it would have precluded the grantor from a tenancy in common with his wife, I think it is not apposite to the present conveyance. The ownership it devolved was in both grantees as one person. They, while both were living, held the estate as one owner under one title and upon the death of the husband the wife was that owner under that title. Upon the vesting of an estate by entireties, both tenants, by reason of the unity of their person by marriage, become seized of the whole estate, and neither is seized of any divisible part thereof; and, therefore, upon the death of one the survivor, being already seized of the whole, can acquire no new or additional interest by virtue of his survivorship. (Hiles v. Fisher, 144 N.Y. 306.) The husband did not convey to himself, but to a legal unity or entity which was the consolidation of himself and another.
Moreover, the conveyance clearly and expressly stated the intention of the parties to be that it should vest in the grantees an estate by entireties. To construe it as though the wife were the sole grantee or as conveying to tenants in common would be a judicial conveyance of the property of the grantor in legal effect contrary to his *Page 95 expressed intention. In the absence of a rule of law compelling such construction, the intention of the grantor should be given effect. (Green v. Cannady, 77 So. Car. 193; West v.McCullough, 123 App. Div. 846.) Estates by the entirety and the creation of them by a conveyance to a husband and his wife are clearly defined and fixed rules of property in our law, which, until legislation, direct and unequivocal, interdicts, should be observed and enforced.
The order should be affirmed, with costs.
CUDDEBACK and HOGAN, JJ., concur with SEABURY, J., and WILLARD BARTLETT, Ch. J., concurs in result in a separate opinion; HISCOCK and CARDOZO, JJ., concur with COLLIN, J.
Orders reversed, etc.