dissenting: It is a fundamental principle of law that property held in joint tenancy passes to the surviving tenant by operation of law. Property thus held is not capable of testamentary devise or disposition. As stated by Judge Phillips of the Tenth Circuit in Hernandez v. Becker, 54 F. 2d 542, 547, “The chief incident of such an estate is the right of survivorship * * *. The survivor does not take the moiety of the other tenant from him or as his successor, but takes it under and by virtue of the conveyance or instrument by which the joint tenancy was created.” In 14 Am, Jur., section 6, page 80, the rule is stated as follows: “A consequence of the doctrine of survivorship is that a joint tenant cannot devise his interest in the land, for the devise does not take effect until after the devisor’s death, and the claim of the surviving tenant arises in the same instant with that of the devisee and is preferred thereto.”1 Thus, a will which purports to devise property held by the testator and another in joint tenancy with the right of survivorship is nugatory, at least insofar as it deals with the property jointly held.
In this case, we have one additional fact. The testators here composed a joint will, or mutual will, devising one to the other, property held in joint tenancy for life with power to consume, and with remainder over to designated remaindermen. The majority concludes that this will was effective to pass only a life estate in the joint property to the survivor, and a life estate being a terminable interest within the meaning of section 812 (e), the property thus received by the survivor does not qualify for the marital deduction. What is unexplained in the majority’s opinion is how the mere signing of a mutual will operates to reduce an estate in fee simple in the surviving joint tenant to a life estate.
It is our understanding that a mutual will speaks as of the time of death the same as in the case of all wills. The dispositions made by such an instrument are testamentary in character and do not purport to make an inter vivos transfer. The law seems to be clear that at any time prior to the death of either of the joint makers of the will either can at any time revoke the will, and there is respectable authority that such a joint will may be revoked by the survivor, particularly if to do so would not constitute a fraud on the deceased party.
If the testators here had not signed a mutual will, the precedents are clear that the property held in joint tenancy would have passed to the surviving spouse by operation of law. And, such interest would have qualified for the marital deduction privilege under the clear wording of section 812 (e) and the legislative intent of that section. Moreover, it is also clear that, had the first-dying spouse attempted to devise the jointly held property to his spouse, the property would still have passed to the survivor by operation of law — the will being ineffective to devise this property. And, in this situation, it would appear that the marital deduction would apply to the property passing to the survivor. How, then, does the fact that the parties signed a mutual will purportedly devising to each other the property which would have passed by survivorship change the survivor’s estate when neither one singly could have accomplished any change by devise on the legal estate of the other?
I do not believe that the principles which give effectiveness to a joint will go as far as to allow a joint will to accomplish something in working a change of estate which separate wills of the two testators could not accomplish. While the joint will with which we are dealing may well serve to devise property of the testators held in severalty, it is not believed that it can control the devolution of property held jointly with right of survivorship. Such property passes to the surviving spouse by purchase and not by devise and her estate in that property is unlimited and should qualify for the marital deduction privilege. The fact that there may be a contractual obligation that must be respected by the survivor does not change the fact that at the moment of death the survivor took the jointly held property in full ownership.
Congress sought in the Revenue Act of 1948 to equalize the treatment accorded residents of community property States and non-community property States and to that end there was provided the so-called marital deduction with which we are here dealing. Deductions are determined by Congress and if, as I believe, the joint property in question came to petitioner by operation of law, the full test of the statute is met. It seems to me that the holding of the majority serves to defeat the purpose Congress had in mind.
Bruce, J., agrees with this dissent.To the same effect Is a quotation from Sir William Blackstone as found in 1 Cooley’s Blaekstone (4th Ed.), bk. II, ch. 12, sec. 185: “But a devise of one’s share by will is no severance of the jointure: for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other) is already vested.” The same rule is announced by the modern authorities as found in 48 C. J. S., Joint Tenancy, sec. 4.