The issue presented in the case at bar is whether the proviso of the second subdivision of 84 O.S. 1941 § 213[84-213] restricts and modifies the entire section, or whether the first sentence of the subdivision, as was held in Re Frary's Estate,186 Okla. 126, 96 P.2d 526, restricts the proviso. The court labored in error with the last-mentioned opinion.
Under the general rule of construction, a proviso limits the immediate clause or general statement, unless the intention of language under construction refers to the whole section. In re Bovier's Estate, 52 Utah, 280, 172 P. 683. The proviso again presented to the court has been construed to be an exception to the general rule. It reads:
"Provided, that in all cases where the property is acquired by the joint industry of husband and wife during coverture, and there is no issue, the whole estate shall go to the survivor, at whose death, if any of the said property remain, one-half of such property shall go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation.'
The proviso was heretofore thought to apply to the first sentence of the statute (subdivision 2) supra, because it deals with the condition "if the decedent leave no issue", but the body of the proviso itself made use of the same condition "andthere is no issue". The repetition serves no useful purpose as it is wholly unnecessary to go beyond words of the proviso itself constituting the identical condition, to clarify intention or meaning. Neither was the proviso intended to apply or limit that which immediately preceded it, for that condition is where the decedent leaves "no . . . husband or wife", whereas if either spouse survives, that person is the object of the proviso. This court has held the proviso limited, by the original phrase of the statute, "having title to any estate not otherwise limited by marriage contract . . .", but it is self-evident that such a construction places in converse the function and relation of a statute and a proviso of it.
In re Frary's Estate, supra, is diametrically opposed to the general rule as stated in Re Bovier's Estate, supra. Such construction limits the statutes of descent and distribution (sec. 213, supra) so as to apply provisions of them only in the absence of a disposition of the estate by will. In re Sims' Estate, 162 Okla. 35, 18 P.2d 1082.
While in Hicks v. Jeffress, 178 Okla. 109, 61 P.2d 1079, it is said the first sentence of the statute, supra, relates to and qualifies the whole section, as disclosed by the first paragraph of the syllabus, that part of the sentence which was held to qualify the whole section was limited todisposition of the estate by will. There the testator had title to real and personal property constituting assets of the estate, and so the construction does not conclude the facts of the case at bar, for, as stated, naked legal title to the estate vests in the name of the other spouse. In Re Estate of Stone, 86 Okla. 33, 206 P. 246, stress was placed upon nondisposition of the estate by will. In the absence of issue, the whole estate jointly acquired by husband and wife during coverture, under the provisions of the second subdivision, was distributed to the surviving spouse with contemplation that at the survivor's death, if any of the property remain, one-half of it would go to the heirs of the husband and one-half to the heirs of the wife, according to their right of representation.
It may be noted in the first paragraph *Page 150 of the syllabus in Re Estate of Stone, supra, that the "fair interpretation" made of the statute, supra, entirely deletes the phrase relating to the spouse having title to property jointly acquired, and such was the view of the court, expressed by Mr. Justice Kane, in Black et al. v. Haynes, 45 Okla. 363,145 P. 362, where by the "fair interpretation" of the legislative intent of the statute the condition as to title of jointly acquired property was omitted and by devolution, under terms of the proviso, the estate vested in the surviving spouse.
In Re Barnes' Estate, 45 Okla. 117, 147 P. 504, with consideration urged as to whether the property was the separate property of the deceased spouse or community property, this court was of the opinion "that it makes no difference . . . as the controlling question . . . is whether or not the estate being administered upon consisted of property acquired during coverture by the joint industry of husband and wife". Therein it was of no significance whatever as to which spouse had title to the property. The issue of the right of either spouse to take immediately by descent, as in jurisdictions governed by rule applicable to community property, was put at rest under the doctrine that "No one has the vested right to be the future heir of a living person".
In Schafer v. Ballou, 35 Okla. 169, 128 P. 498, this court, speaking through Mr. Justice Kane, said the statute was clear; the statute did not cut off from inheritance lineal descendants or issue. Its purpose is, it was said, "to prevent the collateral kindred of a deceased married person from inheriting his property accumulated during coverture by the joint industry of husband and wife, until after the death of the surviving spouse".
The attainment of a just and rightful government, in the devolution of property, is the purpose of the statute. The statute applies to the basis unit of society, the family. The right provided is analogous to the law of community property. It is comparable also to the rule applicable to partnership property, by virture of which, when a partner dies, the other becomes, as to assets of the partnership, a trustee. As with partnership property, as to which of the partners should happen to hold naked legal title to the res of the estate should make no difference in the law applicable.
The law of succession is predicated on the concept that the family, or clan, and not the individual, is the unit of ownership. Fundamentally, then, there may be no alienation of the family property without the consent of the other spouse. Death is a state of innocuous desuetude. Upon this mortal coil the effect of death is not the conference but the withdrawal of power and authority.
The proviso, supra, constitutes of the law of succession, as applied to property jointly acquired during coverture, a sort of joint tenancy with right of survivorship. Tooley v. Com'r. of Int. Rev. (9 Cir.) 121 F.2d 350; 29 C. J. 784; 40 C.J. 43; Sargeant v. Sargeant, (Tex. Civ. App.) 19 S.W.2d 382. The intent and purpose is to provide for each citizen, out of his or her joint accumulation. As at common law, the dwelling place with interest in land lying about and contiguous to it, should be, except in necessitous circumstances, and with joint desire, expressed, inalienable. Riggs v. Sterling, 60 Mich. 643, 27 N.W. 705; 1 Am. Rep. 554; 3 Bl. Com. 418; Stat. Westminister 2 (13 Edw. ch. 1, 18).
Nothing can be found within the proviso which, according to the general rule, qualifies and restricts that which immediately precedes it. Nothing within either the proviso or the statute itself limits the right of the surviving spouse to succession of property jointly acquired. Mere naked legal title in the deceased intestate spouse should not limit applicability of the proviso. Equity and rules of construction urge the contrary. The exception as to testate property, indulged in the Sims Case, supra, violative of the rules of grammatical *Page 151 construction, induced the error in Frary's Estate, infra. Error should neither be perpetuated nor extended. There is no present necessity to overrule any decision except In re Frary's Estate.186 Okla. 126, 96 P.2d 526. It is of recent origin and should be overruled. This I know better than anyone, for I wrote it. I am a better lawyer now than I was then.