This action was instituted by John A. Wenker against Ray Landon as administrator of the *Page 267 estate of George W. Johnson, deceased, Robert L. Johnson, a minor, Ray Landon as guardian of the person and estate of Robert L. Johnson, a minor, and certain tenants, for the recovery of 20 acres of farm land situate in Marion county, Oregon. From a judgment in favor of the defendants the plaintiff has appealed.
On December 3, 1935, and for some years prior thereto, George W. Johnson and Mary T. Johnson were husband and wife and owned as tenants by the entirety the real property here in controversy. In the evening of the day mentioned George Johnson killed his wife and shortly thereafter, during the same evening, took his own life. It is conceded that Mrs. Johnson predeceased her husband. At the time of death Johnson was almost 46 years of age, and his wife was about nine years his senior.
In April, 1933, Johnson had been committed to the state hospital for the insane because of being affected with epilepsy. In June of the following year his condition had improved to the extent that he was paroled from the state hospital to his wife, and he was still on parole at the time of his death.
No children were born to this marriage. The defendant Robert L. Johnson, the son of George Johnson by a former marriage and 19 years of age at the time of the trial, survived George Johnson as his only heir. The plaintiff, John A. Wenker, is the brother of Mrs. Johnson and her next of kin.
It is the plaintiff's contention that George Johnson feloniously took the life of his wife; that therefore, under § 10-213, Oregon Code 1930, he could not acquire any additional right, benefit or interest in the above-mentioned property because of her death; that his *Page 268 minor son, Robert, as the heir of George Johnson, has no greater right in the said property than his father had at the time of the latter's death; and that the plaintiff as next of kin and heir at law of Mrs. Johnson is the owner of such real property and entitled to possession of it.
Section 10-213, supra, was enacted as chapter 270, Laws 1917, entitled, "AN ACT To prevent an heir or beneficiary who feloniously causes the death or disability of another from taking from such person any portion of his estate by devise, legacy, descent or as surviving spouse, or from taking as a beneficiary proceeds under a policy of insurance or certificate in a benevolent association or organization, issued to such person, and to repeal all Acts or parts of Acts inconsistent herewith."
Section 1 of the act, in so far as material to the present discussion, is as follows: "No person who feloniously takes or causes or procures another so to take the life of another shallinherit from such person, or receive any interest whatsoever inthe estate of the decedent as surviving spouse [italics supplied], or take by devise or legacy from such deceased person any portion of his or her estate;" with provisions here appearing relating to beneficiaries under policies of insurance; "but in every instance mentioned in this section, all benefits that would accrue to any such person upon the death or disability of the person whose life is thus taken * * * shall become subject to distribution among the other heirs of such deceased person according to the rules of descent and distribution in case of death as now provided by law".
Before attempting to determine whether the provisions of the foregoing statute apply to the facts in the *Page 269 instant case, it is well to ascertain the purpose which prompted the legislature to enact it. The courts of many of the states, prior to the enactment of the Oregon statute, § 10-213, supra, had held that inasmuch as the devolution of a decedent's estate had been specifically provided by statute, an heir could not be denied the right to inherit from his ancestor, even though the latter's death had been caused by the heir's felonious act. The reasoning in such cases was that the law itself made no exception and it was not the province of the court to read into the law something which it did not contain. Numerous decisions to this effect are based on the ground that the legislature in directing the course of descent and distribution of decedents' estates had declared the public policy of the state in that respect and that the courts could not alter or affect the policy so determined. In cases in which the decedent died testate it has likewise been held that the courts are powerless to alter the directed course of devolution of his estate.
With increase of the issuance of life insurance policies, instances of beneficiaries' causing the death of the insured in order to profit from the proceeds of such policies became more numerous. Because payment of the benefits of the policies was held to be contractual, it was decided that the insurer had no alternative but to pay the proceeds of policies to the beneficiaries therein designated.
Obviously to meet difficulties such as had confronted the courts of other jurisdictions in the instances hereinabove pointed out, the legislature enacted § 10-213, supra. It will be noted that the purpose of the act is to prevent an heir, devisee, legatee or surviving spouse who had feloniously caused the death of a decedent from inheriting or receiving any part of the *Page 270 estate of the decedent. It also had the added purpose of preventing a beneficiary under a policy of life insurance who feloniously caused the death of the insured from receiving any proceeds of such insurance policy. This latter provision may be laid aside as far as the present case is concerned.
The immediate question which confronts us is whether the legislature in enacting § 10-213, supra, intended to affect the right of a surviving spouse as tenant by the entirety. It is therefore necessary to consider the nature of estates by the entirety. The following definition is found in Thompson on Real Property, 1929 Supplement, § 1735:
"An estate by entirety is an estate held by husband and wife by virtue of title acquired by them jointly after marriage. It is a peculiar and anomalous estate, sui generis in character. Estates by entirety have no moieties. Each owner holds theentirety. Each receives per tout et non per my. Such estates are creatures of the common law created by legal fiction and based wholly on the common-law doctrine that the husband and wife are one. And therefore there is but one estate and, in contemplation of law, but one person owning the whole. There can be no severance of the estate by the act of either, and the survivor becomes seised as sole owner of the entirety of the estate. Theestate is not one of inheritance." (Italics supplied.)
When real property is conveyed to husband and wife as tenants by the entirety they take but one estate, and if one spouse dies the estate continues in the survivor. Such survivor takes no new interest or estate: Beddingfield v. Estill,118 Tenn. 39, 100 S.W. 108, 9 L.R.A. (N.S.) 640, 11 Ann. Cas. 904.
Mrs. Johnson died intestate. Therefore, the question of whether her husband received any of her estate *Page 271 as devisee or legatee is eliminated. As to the property which she and her husband held by the entirety, here in controversy, the husband did not inherit it or any interest in it from her. Upon her death the real property owned by them as tenants by the entirety did not, nor did any interest which the wife might have had therein, become a part of her estate; and therefore George Johnson did not receive any interest in her estate as surviving spouse, in so far as concerns that realty.
In this state "the widower of every deceased person shall be entitled, as tenant by the curtesy, to the use, during his natural life, of one-half part of all the lands whereof his wife was seised of an estate of inheritance at any time during his marriage, . . . unless he is lawfully barred thereof": § 10-330, Oregon Code 1930. Likewise, a widow is entitled to dower: § 10-301, Oregon Code 1930. The widow, under our laws, is also given a maintenance allowance from the estate of her husband for one year: § 11-401, Oregon Code 1930. Provision is also made for setting apart to the surviving spouse as a homestead real property of the decedent exempt from execution: § 11-402, Oregon Code 1930. It is such benefits as these from the estate of a decedent that § 10-213, supra, withholds from the "surviving spouse" under conditions therein mentioned. These benefits or rights, however, are foreign to, and not to be derived from, estates by the entirety.
Reverting to the title of the act, we find that the purpose of the statute as therein expressed is "to prevent an heir or beneficiary who feloniously causes the death or disability of another from taking from such person any portion of his estate by devise, legacy or as surviving spouse". The body of the act, after denying *Page 272 to any person who feloniously takes the life of another the right to inherit from such person or receive any interest whatever in the estate of the deceased as surviving spouse or to take by devise or legacy from such deceased person any portion of his or her estate, specifically provides what shall be done with the decedent's estate, by directing that "in every instance mentioned in this section, all benefits that would accrue to any person upon the death or disability of the person whose life is thus taken . . . shall become subject to distribution among the other heirs of such deceased person according to the rules of descent and distribution in case of death as now provided by law." This language of the statute is easily understandable when applied to a decedent's estate that is subject to distribution among the decedent's heirs. It is undeniable that the surviving spouse does receive some benefit in an estate held by the entirety, upon the death of the other spouse. He thereby becomes the sole owner of the property and can dispose of it as he sees fit. But the benefit which he thus receives is not subject to distribution among the decedent's heirs.
In the case of Beddingfield v. Estill, supra, the supreme court of Tennessee in denying to the heirs of the wife who had been slain by her husband the right to any interest in the estate which had been held by the decedent and her husband as tenants by the entirety, either under the Tennessee statute, which is similar to the one with which we are here concerned, or at common law, said:
"We do not think that either the common-law rule or statute here invoked apply to this case.
"First. Mary G. Baird, the mother of complainants, did not have any title to or estate in the lands sued for which could descend to, be inherited, or otherwise *Page 273 acquired by C.W. Baird, her husband, her heirs at law, or other persons, upon her natural death. C.W. Baird could not and did not inherit, acquire, or otherwise take any interest or estate in the lands from or through his wife, and would not have done so had she died a natural death. The title which he claimed was acquired and vested in him by the conveyances made to him and his wife previous to her death, and he did not attempt to convey anything acquired through or under her. Where land is conveyed to husband and wife to hold by entirety, the survivor, upon the death of the other, takes and becomes vested of the entire estate — a fee simple estate — by virtue of the grant or deed conveying the property to them; the interest of the deceased being terminated by his or her death. This is an ancient, familiar, and well-established doctrine of the common law, and enforced in this and all of the other states of the Union, so far as we are informed."
The opinion discusses a number of other decisions on this subject and concludes thus:
"Second. Nor can complainants recover upon the theory that under the statute C.W. Baird forfeited to them the estate vested in him by the conveyance under which he and his wife held in these lands. It was not the intention of the general assembly that vested rights of this character should be forfeited by the murderous act of the owner therein stated. It was only intended that he should not in any way acquire any new rights or property interest from others as the result of his crime. Any other construction of the statute would render it void. Our constitution (article 1, section 12) prohibits the enactment of any law to the effect that a conviction for crime shall work corruption of blood or forfeiture of estate."
It undoubtedly was not the intention of the legislature of this state in enacting § 10-213, supra, to forfeit the interest of the surviving spouse in lands held in tenancy by the entirety. If such were the case, it would *Page 274 be contrary to § 25, article I, of our constitution, which provides that, "No conviction shall work corruption of blood or forfeiture of estate." Neither can it be said that the legislature intended that the property should, after the death of one of the spouses, be held by the surviving spouse and the heirs of the deceased as tenants by the entirety, inasmuch as an estate by the entirety is limited to property owned by husband and wife during coverture. Nor does the act itself purport to create any other or different kind of tenure with reference to such property.
It is our conclusion that § 10-213, supra, was not intended to and does not embrace estates by the entirety.
The appellant, however, urges that even if that statute does not apply in the present instance, under the common law the plaintiff is entitled to relief in this action, and our attention is directed to three decisions to which we shall now briefly refer.
In Bryant v. Bryant, 193 N.C. 372, 137 S.E. 188, 51, A.L.R. 1100, property was held by the husband and wife as tenants by the entirety. The husband, who was a number of years older than his wife, feloniously caused her death. In an equitable proceeding brought by the heirs of the deceased wife, the court there decided that the surviving husband held the title to the property in trust for the benefit of the wife's heirs, on the ground that the wife's normal life expectancy exceeded his, and that had she not been slain she would probably have outlived him and would have become seised as sole owner of the entirety of the estate. After pointing out the incidents of a tenancy by the entirety, the court observed: "It is therefore manifest that, if the deceased wife were now living, the appellant [the *Page 275 surviving husband] could not be deprived of his interest in the estate by an arbitrary judgment of the court. None the less is he entitled to the enjoyment of such interest after her death; but for the benefit of her heirs at law a court of equity will interpose its protecting shield." The opinion stated that the plaintiffs "should be adjudged the sole owners, upon the appellant's death, of the entire property as the heirs of their deceased mother."
Barnett v. Couey, 224 Mo. App. 913, 27 S.W.2d 757, involved the ownership of a bank deposit belonging to a husband and wife as an estate by the entirety. The husband feloniously caused the death of his wife and shortly thereafter took his own life. The suit was between the administrators of the two decedents' estates, the administrator of the wife's estate contending that he was entitled to one-half of this deposit, on the ground that the estate of the husband should not profit from his wrongful act. The court decided that the deposit should be treated as held by the two administrators as tenants in common, with the result that each estate was awarded one-half of the deposit. It is intimated in the opinion, however, that the plaintiff might have been granted other and greater relief, if the demand had not been limited to one-half of the deposit. In arriving at its decision, the court did not distinguish between a tenancy by the entirety in personal property, which is recognized in that jurisdiction, and a tenancy by the entirety in real property.
In Van Alstyne v. Tuffy, 169 N.Y.S. 173, it was held that the heirs of a wife slain by her husband, who thereupon killed himself, were entitled to the real property owned by the husband and wife as tenants by the entirety. The decision is based wholly on the proposition *Page 276 that "no man shall be permitted to profit by his own wrong", and that to hold otherwise would be to allow the heirs of the husband to be benefited by his wrongful act. No attention is given to the peculiar character of estates by the entirety.
It will be noticed that in the foregoing cases three different theories are severally applied, but we are not willing to adopt any one of them. We feel that if any change in the established rules relating to tenancy by the entirety is to be made with respect to the rights of the surviving spouse, such change lies within the province of the legislature, and not the courts.
The judgment appealed from is affirmed.
RAND, C.J., and LUSK, J., concur.