ON MOTION TOR REHEARING.
Cobb, J.The application for a rehearing in this case is based upon numerous grounds. A rehearing is asked upon the ground that the case was heard by only five Justices and the judgment rendered was concurred in by only three. It is now asked that the case be reheard before a full bench of six Justices. These facts alone furnish no sufficient reason for a rehearing. Under the constitution and laws, three Justices may render a judgment in any case heard before less than six Justices. Even if under any circumstances a litigant has a right to ask that his case be heard before a full court of six Justices, the application must be made before the case is heard. The fact that one or more of the Justices is absent and the judgment is rendered by three Justices only constitutes no ground for a rehearing at the instance of a party. While it does not appear in the official report of the case, still the records of this court disclose that in the case of Gilbert v. State, 116 Ga. 819, which was heard by four Justices and the judgment rendered by three, the fourth dissenting, an application for a rehearing upon the ground above referred to was refused.
It is further contended that a rehearing should be granted for the reason in that the opinion of the majority it is recognized that the *676scheme is dependent to some extent upon the doctrine of survivor-ship ; and that as joint tenancy with its incident of survivorship has been abolished in this State, the ruling is unsound to the extent referred to. It is true that the common-law doctrine of survivorship among joint tenants was abolished by thé constitution of 1777. Lowe v. Brooks, 23 Ga. 325; Carswell v. Schley, 56 Ga. 101, 108. See also Bryan v. Averett, 21 Ga. 402; Harrison v. Harrison, 105 Ga. 520. The code declares: “ Joint tenancy does not exist in this State, and all such estates, under the English law, will be held to be tenancies in common under this code.” Civil Code, § 3142. It follows therefore that wherever an instrument creates an estate which at common law would be held to be a joint tenancy, in this State the'instrument would be held to take effect as to all its terms, except so far as it provided by implication for survivorship among the tenants, and such tenants would be held to occupy to each other, so far as this question is concerned, the relation of tenants in common. While the doctrine of survivorship as applied to joint tenancies has been distinctly abolished and does not exist in this State, there is no law of this State that we are aware of which prevents parties to a contract, or a testator in his will, from expressly providing that an interest in property shall be dependent upon survivorship. Of course all presumptions are against such an intention ; but where the contract or will provides, either in express terms or by necessary implication, that the doctrine of survivorship shall be recognized, we know of no reason why a provision in the contract or will dependent upon such doctrine may not become operative under the laws of this State. While this question seems not to have been distinctly passed upon by this court, there are numerous cases in which the doctrine of survivorship has been recognized as being operative. Among the cases on this subject, see Riordon v. Holiday, 8 Ga. 79 ; Benton v. Patterson, Id. 146; Dunn v. Bryan, 38 Ga. 154; Hooper v. Howell, 50 Ga. 165, s. c. 52 Ga. 316; Parrott v. Edmondson, 64 Ga. 332; Olmstead v. Dunn, 72 Ga. 850. At common law an estate in joint tenancy, with the incident ,of survivorship, was created in. any case where lands or tenements were granted to two or more persons, to be held in fee simple, fee tail, for life, for years, or at will. The mere creation of the estate in two or more persons, without more, drew to it the incident of survivorship. See 2 Bl. Com. 180. In Georgia the mere creation *677of the estate in two or more persons never draws to it survivorship as an incident, and the presumption is in all cases that survivor-ship was not intended. But where by express terms or necessary implication a survivorship is provided for, the law of Georgia allows it to exist. This exact question has been passed upon in other States having statutes abolishing the doctrine of survivorship as applied to joint tenancies. In Arnold v. Jack’s Executors, 24 Pa. St. 57, the Supreme Court of Pennsylvania held that though survivor-ship as an incident to joint tenancies had been abolished in that State, it might be expressly provided for by will or deed; Knox, J. , in the opinion saying: “ But conceding that the right of survivorship, as an incident of a joint tenancy, no matter how created, is gone, it by no means follows that this right may not be expressly given either by a devise in a will or by grant in a deed of conveyance. It may cease to exist as an incident, and yet be legally created as a principal.” See also Jones v. Cable, 114 Pa. St. 586; Sturm v. Sawyer, 2 Pa. Sup. Ct. Rep. 254; Lentz v. Lentz. 2 Phila. 148. In the case of Taylor v. Smith, 21 S. E. 202, the Supreme Court of North Carolina held that the act abolishing survivorship in estates in joint tenancy did not prohibit contracts making the rights of the parties dependent on survivorship. In the opinion Avery, J., said: “The act of 1784 (Code, § 1326) abolishes survivorship where the joint tenancy would otherwise have been created by the law, but does not operate to prohibit persons from entering into written'contracts as to land, or verbal agreements as to personalty, such as to make the future rights of the parties depend upon the fact of survivorship.” See also 17 Am. & Eng. Enc..L. (2d ed.) 650.
The remaining grounds of the application for a rehearing relate to matters which were fully discussed and carefully considered. Attention is called in the motion for a rehearing to the case of State v. Hawkins (Md.), 51 Atl. 850. Even if this case can be considered as antagonistic to the conclusion reached in the present case, we find nothing in the reasoning of the court which dissatisfies us with the conclusions we"have reached. In addition to the cases cited in the original opinion on the question of what constitutes a lottery, we take this occasion to call attention to the following: Hall v. Cox, 1 Q. B. 198; Regina v. Dodds, 4 Ont. 390; Regina v. Jamieson, 7 Id. 149; Stoddart v. Argus Printing Co., 2 K. B. 474; Dunham v. St. Croix Mfg. Co., 34 N. Bruns. 243; United *678States v. Rosenblum. (U. S. C. Ct. So. Dist. N. Y.), N. Y. Law. Jour. March 26, 1903.
While the differeuces of opinion among the Justices of this court as indicated by the opinions filed still exist, so far as the merits of this controversy are concerned, we are all agreed that no sufficient reason has been given why this case should be reargued.
Application denied.