dissenting: At common law, where real property was conveyed to the husband and wife by deed, both husband and wife were seized of the estate thus granted per tout, et non per my (by the whole, and not by a part), as one person, and not as joint tenants, or tenants in common. The survivor becomes sole seized of the entirety of the estate. The reason why, under a- conveyance to husband and wife, they did not take, either as joint tenants or tenants in common, *455was that they were, according to principles of the common law, incapable of so taking. The authorities fully sustain this statement of the reasons on which the common-law rule, prescribing the effect of a conveyance to husband and wife, is founded. Littleton, after stating the rule, says that “the cause is, for that the husband and wife are one person in law.” (2 Co. Litt. 187a.) Blackstone says that, “husband and wife being considered as one person, they cannot take the estate by moieties, but both are seized of the entirety.” (2 Bl. Com. 182.) Chancellor Kent says: “They are not properly joint tenants, nor tenants in common; for they are but one person in law, and cannot take by moieties.” “This species of tenancy arises from the unity of husband and wife.” (2 Kent’s •Com. 132.) So with the adjudged cases: they all proceed, not on any supposed intention of the parties to the conveyance, but on the sole ground of the incapacity of husband and wife, who are tegarded as one person in law, to take “during coverture separate estates in property which is conveyed to both of them.” (Green v. King, 2 W. Bl. 1211; Jackson v. Stevens, 16 Johns. 115; Ames v. Norman, 4 Sneed, 692; Barber v. Harris, 15 Wend. 617; Stuckey v. Keefe, 26 Pa. St. 397; Rogers v. Benson, 5 Johns. Ch. 437; Pollard v. Merrill, 15 Ala. 174; 4 Kent’s Com. 362; 1 Greenl. Cr. 363, §§44, 45; 1 Thomas’s Coke, note, p. 741; Bell on Property of H. & W., 396; Bredon’s Case, 1 Coke’s R., 193, note to Thomas & Eraser’s ed.) In accordance with this view it has been held, and upon reasoning entirely conclusive, that husband and wife cannot, at common law, by any words in a grant to them during coverture, be made either joint tenants, or tenants in common. (Stuckey v. Keefe, 26 Pa. St. 397; Johnston v. Hart, 6 Watts & S. 319; Dias & Burn v. Glover, 1 Hoff. Ch. 71.) Therefore" the statement in the opinion that, under the rule of' the common law, a deed might be executed to a husband and wife which would convey to them an estate in common, or in joint tenancy, is not only not admitted, but is against the great weight of authority; and I might say against all reported English cases but a single one, upon which text-writers and *456one court, in attempting to defend estates in entirety, have built largely. (See Stuckey v. Keefe, supra, and the authorities there cited.)
As a strong illustration that estates in entirety are not applicable to our society and institutions, I cite Dias & Burn v. Glover, 1 Hoff. Ch., supra. In that case the conveyance was made to “J. C. and P. C. his wife, as tenants in common and in equality of estate, and not as joint tenants.” Notwithstanding the purpose and intention of all the parties to the conveyance, it was decided that under the common law the conveyance was not permitted to have any operation in creating a tenancy in common. The words “as tenants in common” and “in entirety of estate, and not as joint tenants” were rendered nugatory by the incapacity of the husband and wife under the common law to take as tenants in common.
One of my objections to establishing or recognizing estates in entirety in this state is, that it is not in consonance with our laws that the intention of the parties to a conveyance to a husband and wife cannot have any operation. The adoption of estates in entirety determines the incapacity of husband and wife to take either as joint tenants or tenants in common. (2 Kent’s Com. 132; 4 Kent’s id. 362.) There are citations in the opinion from Bishop, Washburn, and Chancellor Kent, attempting to support the rule that even at common law it is competent to make husband and wife tenants in common, by proper words in the deed or devise by which they take. The case of McDermot v. French, 15 N. J. Eq. 78, is also referred to for the same reason. The citation from Bishop is based upon Wales v. Coffin, 13 Allen, 213, and the New Jersey case of McDermot v. French, supra, and one English case referred to in 1 Preston on Estates, 132, and also in 2 Preston on Abstracts of Title, 41. The Massachusetts case decides that “by common law, a deed or devise to husband and wife creates one indivisible estate in them both, and the survivor of them ; not because of their supposed incapacity to hold in moieties, but because such being presumed to be the intention of the parties, the law holds the estate to be limited accordingly.” *457Tbis last conclusion of the decision is contrary to Blackstone and all the other common-law authorities. The English case in 2 Preston on Abstracts of Title, 41, is the authority for the citation from Kent. Washbui’n gives as his authority the New Jersey case only. The New Jersey case is founded upon the citation from Kent and the English case in Preston. The assistant vice-chancellor, in Dias v. Glover, supra, very conclusively questions the solidity of Mr. Preston’s opinion. He observes:
“It is true that Mr. Preston says, (1 Prest. Est. 132,) ‘In point of fact, and agreeable to natural reason, the husband and wife are distinct and individual persons; and accordingly, when lands are granted to them as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties as other distinct and individual persons would do.’ He cites 1 Inst. 1876, only. I find nothing in the place referred to bearing upon this position, unless it be the rule laid down, that if a man makes a lease to A., and to a baron and feme — that is, to A. for life, to the husband in tail, and to the feme for years — in this case it is said that each has a third part in respect to the severalties of their estates. In Mr. Preston’s work on Abstracts, (vol. 2, p.41,) he states this position more reservedly: ‘And even a husband and wife may, by express words, (at least so the law is understood,) be made tenants in common, by a gift to them during coverture.’ ”
Therefore the citations from Bishop, "Washburn, Kent, and the New Jersey Report are virtually based upon the single English case, which is contrary to all the English and common-law decisions, and is not held by Vice-Chancellor Hoffman as good authority. If it be conceded that a conveyance can be made to husband and wife under the common law by proper words so as to create them tenants in common, then the reason on which the rule of an estate in entirety was founded has ceased to exist, and there being no reason for the rule, such estate should not be adopted or recognized; “for,” says Blackstone, “ husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seized of the entirety, per tout, et non per my.”
Again, as one of the reasons for the recognition of estates *458in entirety, it is suggested in tbe opinion that such a rule is beneficial to married women, because the life-tables show the expectancy of life for women is greater than for men of the same age and health. In this case the wife, Mrs. Alice Baker, died before her husband, and it will be no satisfaction to her children to be informed that they are denied the right to inherit any part of the estate their mother had in her property in her lifetime, because as a general rule estates in entirety do not take away from married women their rights or privileges. This denial of inheritance in my opinion is in conflict with ch. 33, Comp. Laws of 1885, being the act relating to descents and distributions. Section 28 of that chapter reads:
“All the provisions hereinbefore made in relation to a widow of a deceased husband shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs. The estates of dower and by curtesy are abolished.”
And section 29 reads:
“ . . . Children of a deceased parent inherit in equal proportions the portion their father or mother would have inherited if living.” (See also the other sections of said ch. 33.)
But I do not accept the conclusion announced, that estates in entirety are beneficial to married women, on account of the life-tables. While some of these tables show that the expectancy of life for women, including, married and single, is greater than that for men, all of the tables show that from the age of ten to thirty-five the female rate of mortality exceeds themiale. (10 Chambers’s Encyc., p. 2.) It is also shown by the experience of assurance offices, that while female annuitants are longer lived than male, female assured lives are no better. (Id.) The majority of women who ever marry are married before they reach the age of thirty-five — the greater number under thirty; therefore, the life-tables do not show conclusively that the expectancy of life for wives is greater than that for men. The ratio of male to female mortality differs considerably at different ages.
*459A very large number of decided cases is cited as supporting estates in entirety. These authorities, however, are not to be accepted as conclusive in this state: First, the constitution and statutes of Kansas are more liberal than those of many states in recognizing the rights and privileges of women. Second, the courts generally have been very slow in conceding the wife to be the companion and equal of the husband, and entitled to enjoy equally with him the rights of property. Under the ancient doctrine of the common law, where estates in entirety originated, the husband and wife were not only one person in law, but the very being or legal existence of the woman was suspended during the marriage, or at least was incorporated and consolidated into that of the husband, under whose wing, protection and cover she performed everything; and is therefore called in law-French a feme-covert — fomina viro co-operta — and was said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her man’iage was called her coverture. (1 Cooley’s Bl., 3d. ed., 442.)
In this state a husband and wife are two independent persons; and the husband has no more immediate interest or control over the property of the wife than any other person. Our system of marriage literally implies the equality of the husband and wife; the integrity and individuality of each; the mutual obligation in which love and duty find no bondage; the division of labor; and the’ multiplication and sharing of happiness.
“ Marriage involves neither the assumption of indebtedness nor the acquisition of property; a married woman may contract and be contracted with concerning her separate real and personal property, sell, convey, and incumber the same; sue and be sued without reference thereto, in the same manner, and to the same extent, and with like effect, and as freely as any other person may in regard to his or her real or personal property. She may purchase property from her husband, perform labor and services on her sole and separate account, and make the earnings therefrom her soleand separate property; she has the same control of her person and property as her husband; she has the same right as to the nurture, education *460and control of her children, and also the same rights in the possession of the homestead. (Knaggs v. Mastin, 9 Kas. 532; Tallman v. Jones, 13 id. 438; Going v. Orns, 8 id. 85; Larimer v. Kelley, 10 id. 298; Butler v. Butler, 21 id. 526.) She may participate in all city elections, attend caucuses, nominate candidates, and vote for such persons and principles as her judgment dictates. In fact, in Kansas a woman is in nearly all matters accorded civil and political equality with man; she is not his servant nor his slave.” (The State v. Walker, 36 Kas. 311. See ch. 62, Comp. Laws of 1885.)
Then again, this court heretofore has been fearless in disregarding doctrines founded upon circumstances peculiar to England, but not applicable to the society and institutions of this country. In Simpson v. Mundee, 3 Kas. 172 — as far back as 1865 — this court wiped out the “indescribable myth,” known as the “English vendor’s lien,” although the great weight of authorities, under the common law, recognized and enforced it. In Norris v. Corkill, 32 Kas. 409, notwithstanding the numerous decisions of various states that the husband is liable for the torts of his wife, under the common law, this court held that, considering the liberal provisions of the statutes regarding married women, the common-law rule was changed, and that the husband was not liable for slanderous words spoken by his wife. In Butler v. Butler, 21 Kas. 521, the writer of that opinion inclined to the belief that notwithstanding the great weight of authority under the common law, a voluntary conveyance by a woman just prior to her marriage, without the knowledge of the husband, was not a fraud upon his marital rights. This upon the ground that the rights and privileges of married women have been so changed by the laws of the state, from the common law, that the reason for any such rule failed, and therefore the rule itself ceased.
The case of Diver v. Diver, 56 Pa. St. 106, in which the opinion was written by Mr. Justice Strong, afterward one of the justices of the supreme court of the United States, is strongly relied upon. That decision, however, is founded upon the case of Bettit v. Fretz, 9 Casey, 118, where the married-woman’s act of Pennsylvania is construed as not to give the *461wife the absolute right to dispose of her estate as a feme sole. To show that the decision is not applicable to our state, I merely quote a part of the opinion:
“If the married-woman’s act of April 11, 1848, were literally interpreted, we could not fail to see that it would work a repeal of our old statutes of conveyancing, which the legislature had exhibited no intention to repeal; that it would change the law of actions; that it would expose wives continually to the hazards of barter and business without that aid and protection which the common law entitled her to receive from her husband; that it would dethrone him from the headship of the family, take her thoughts and time from the care of the family, and introduce confusion and discord, which would in their turn entail upon the public evils tenfold greater than those which the statute was intended to remedy. The marriage relation is the foundation of our social organization. If we are not to stand by the ‘ancient landmarks’ while the legislature leaves them untouched — if, taking the words of the enactment, we are to run them Out into all possible constructions, however attenuated and however remote from the great central idea — we shall substitute a judicial system of concubinage in Pennsylvania for the common-law relation of marriage; for so soon as the material interests of the relation are severed at all points and for all purposes, marriage will become a mere partnership of convenience, to be formed and dissolved like other partnerships when the partners think they can do better for themselves.”
Therefore the decision of Diver v. Diver, when construed in connection with the decision of Pettit v. Fretz, supra, therein referred to, is no authority for this court to follow. This court, unlike the Pennsylvania courts, has never dwarfed or limited by construction the statutes respecting the rights of married women, for fear—
“ That it would dethrone the husband from the headship of the family, take the thoughts and time of the wife from the care of the family, and introduce confusion and discord, which would in their turn entail upon the public evils tenfold greater than those which the statutes were intended to remedy.”
*462The statute concerning the common law reads:
“ The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state; but all such statutes shall be liberally construed to promote their object.” (Comp. Laws of 1885, ch. 119, §3.)
In this state, as I have already shown, the statutes and decisions recognize the separate existence of the wife, her separate property, her separate contracts, and her separate suits. Therefore the nice distinction created in the ancient books of estates in entirety, are not, in my opinion, in line with our constitutional and statutory law, judicial decisions and the condition and wants of the people. In the language of the old Massachusetts statute, (1785, ch. 62,) “Tenancies in common are more beneficial to the commonwealth and more in consonance with the genius of republics.”
In 1 S. W. Syst. 272, Judge Swift remarks that the odious and unjust doctrine of survivorship was never adopted in his state.
In my view I am supported by the decisions of many strong and able courts. In Cooper v. Cooper, 76 Ill. 57, it was said that—
“ Under the legislation of this state, giving married women the right to acquire property, and hold the same free from their husband’s control, the reason for the rule which holds that a conveyance to husband and wife makes them tenants by the entirety with right of survivorship, has ceased to exist, and they will, in this state, take and hold as tenants in common.”
In Hoffman v. Stigers, 28 Iowa, 302, it was held that—
“Under our law joint tenancies, and in entirety, are not favored, and a conveyance to two or more persons in their own right creates a tenancy in common, unless a contrary intent is expressed, and this rule, under our statute, applies to a conveyance, whether by judgment or deed, vesting the estate in a husband and wife jointly.”
*463In the opinion in that case, it was also said :
“And as the courts in most of the states condemn entailments, or perpetuities, so we do and should joint tenancies, or at least their common-law incident — the right of survivorship.”
In Clark v. Clark, 56 N. H. 105, it was decided that tenancies by entirety became inoperative by the passage of the act of 1860, in relation to married women. In that opinion it was said:
“It appears that the testator died in 1862, after the act in regard to the estates of married women took effect, whereby married women, so far as their property not derived from their husbands was concerned, became practically endowed with the rights and subject to the liabilities of unmarried women. That mysterious joint tenancy in which the subtle genius of the English real law so much delighted itself, where the tenants took not per my et per tout, but by entireties, could no longer arise. The existence of a married woman, so far as her property is concerned, is no longer by our law merged in that of her husband, but she has become a separate being, endowed, so far as her separate estate is concerned, with the powers and subjected to the liabilities of unmarried women.”
In Walthall v. Goree, 36 Ala. 728, the syllabus reads:
“At common law, under a devise to husband and wife during coverture, the entire estate vested in both of them as one person, and on the death of either, continued in the survivor; but under the statutes of this state creating and regulating the separate estates of married women, (Code, §§1981-1997,) such devise creates the same estate in the parties as if it had been made before coverture; on the death of the wife intestate, her undivided moiety descends to her heirs-at-law, subject to the statutory rights of her surviving husband during his life; and on the subsequent death of the husband, the wife’s heirs become entitled to the possession of her undivided moiety.”
In that opinion it was said:
“Article 3, chapter 1, title 5, part 2 of the code, relates expressly to separate estates of married women. (Code, p. 380.) The seventeen sections which compose that article embody the principles of a new policy with reference to married women, which was unknown to the common law. (Smith v. Smith, 30 Ala. 643.) One of the principles embodied in the provisions *464of the code here referred to is, that the distinct existence of the wife as a legal person is so far recognized as to enable her to take an estate separate from her husband. (Code, §§1982, 1983, etc.)”
In Whittlesey v. Fuller, 11 Conn. 337, I find the following language:
“But it is said that although this estate has all the incidents of a joint tenancy, yet that the relation of husband and wife is such that they cannot receive an estate by moieties, but that each must be seized of the entirety, and of course that no part of the property so held can be conveyed by one of them. And that such is the doctrine of the English books cannot be doubted. Husband and wife cannot take by moieties, during the coverture; and he has no power to sever the jointure, nor to dispose of any part of the land. . . . And the reason given is, that husband and wife are one. If that were the real reason, it is very difficult to see why a deed to the wife would not be in effect a deed to the husband and wife, and vice versa; . . . but in Connecticut we cannot learn that it was ever recognized as a law of our state. On the contrary, so far as we are informed, deeds or devises of lands to husband and wife have been considered as vesting the estate conveyed in the same manner as to other persons. The wife having a separate existence, so as to be able to take by a deed to herself, her identity has not been considered as destroyed, from the fact that the conveyance was to her and to her husband, by one and the same instrument. Estates have been, as we believe, frequently and so far as we are informed, uniformly, settled upon that principle; and although no adjudged case has been shown upon this subject, this practical construction is in such strict accordance with the common understanding, so conformable to the simplicity of our practice, and to the general principles of our law, and has been so long acquiesced in, as to afford high evidence of the question having been settled by the highest authority.”
In Ohio it was held, in 1826, that joint tenancy never existed in that state, and that a devise made to husband and wife gives them the rights of tenancy in common. The court, in speaking of joint tenancy, says :
“The reasons which give rise to this description of estate in England never existed with us. The right of survivor-*465ship is not founded in principles of natural justice, nor in any reason of policy applicable to our society and institutions; but, on the contrary, it is adverse to the understandings, habits and feelings of the people.” (Sergeant v. Steinberger, 2 Ohio, 305.)
In Penn v. Cox, 16 Ohio, 30, it was held that the doctrine of survivorship did not apply where the land had been sold to the husband and wife, and that the act regulating descents and distributions embraced the whole subject of descents, and was intended to provide for all cases. ( Wilson v. Fleming, 13 Ohio, 68.)
In Meeker v. Wright, 76 N. Y. 262, it was decided that—
“Where, since the passage of the act of 1860 concerning the rights and liabilities of husband and wife, lands have been conveyed to the husband and wife jointly, without any statement in the deed as to the manner in which the grantee shall hold, they are tenants in common.”
Subsequently, in Bertles v. Nunan, 92 N. Y. 152, that decision was overruled by a divided court. The reasons, however, given for that decision do not apply in this state, for in the opinion it is stated that under the statutes of New York—
“ The ability of the wife to make contracts is limited. Her general engagements are absolutely void, and she can bind herself by contract only as she is expressly authorized to do so by statute. A husband still has his common-law right of tenancy by the curtesy. Although section 7 of the act of 1860 authorizes a married woman to maintain an action against any person for an injury to her person or character, yet we have held that she cannot maintain an action against her husband for such an injury; and so it was held, notwithstanding the acts of 1848, 1849 and 1860, that the common-law disability of husband and wife growing out of their unity of person to convey to each other still existed. (White v. Wager, 25 N. Y. 333; Winans v. Peebles, 32 id. 423; Meeker v. Wright, 76 id, 262, 270.) It is believed, also, that the common-law rule as to the liability of the husband for the torts and crimes of his wife are still substantially in force.”
See to the contrary the decisions of this court already quoted; and, among others, Norris v. Corkill, supra.
*466It is claimed, however, that some of the decisions favorable to the view I maintain are not in point, because of express statutes concerning joint tenancy and tenancy in common. If I read these decisions correctly, several of them are made solely upon the ground that the statutes giving to the wife her separate property rescind or abrogate the rule that a conveyance to husband and wife makes them tenants by the entirety, with right of survivorship. Further than this, it has been expressly decided by courts adopting estates in entirety, that statutes abolishing joint tenancy have no application to a joint estate of husband and wife, or an estate in entirety. (Diver v. Diver, supra.) In that case it was said:
“Nor does the act of March 31,1812, which abolished sur-vivorship among joint tenants, apply to such an estate, [in entirety,] for it is not a joint tenancy.”
In Marburg v. Cole, 49 Md. 402, which is a decision sustaining estates in entirety, it was said:
“The code, art. 49, §12, being the codification of the act of 1822, ch. 162, provides that no instrument of conveyance shall be construed to create a joint tenancy, unless it is expressly provided that the property shall be held in joint tenancy. But, as we have seen, the estate conveyed to husband and wife in a deed like the one before us, is not to them as joint tenants at the common law, and hence the statute just referred to does not affect or apply to such an estate as that conveyed to husband and wife. This has been expressly so held by this court in the case of Craft v. Wilcox, 4 Gill, 504. Similar statutes to our. own exist in a large number of the states of the union, converting joint tenancies at the common law into tenancies in common, except where in the instrument it is otherwise expressly declared, and the invariable construction has been that they do not apply to or affect the peculiar estate taken by husband and wife under a deed to them jointly.” (4 Kent’s Com. 362.)
Therefore, if the decisions adopting or sustaining estates in entirety are to be followed, the various statutes referred to in the opinion concerning joint tenancy and tenancy in common, cannot have much force, because estates in entirety are founded upon the incapacity of the husband and wife to take separately, *467or by moieties, ancl in these statutes estates in entirety are not expressly stated.
If the doctrine of estates in entirety be the proper one, then the statutes referring to conveyances made to two or more are not applicable to estates in entirety, because those estates are also founded upon the doctrine that husband and wife are one in law, and one only; therefore, conveyances to two or more do not apply to a conveyance made to husband and wife if they are only one in law.
Again, at common law, the right to control the possession of the estate of the wife under such a conveyance, during their joint lives, is in the husband, as it is when the wife is sole seized. The husband by that law has, during coverture, the usufruct of all the real estate which his wife has in fee simple, fee tail, or for life; so,'also, under the common law, the husband has the right to make a lease of the estate conveyed in fee to him and his wife, which will be good against the wife during coverture, and will fail only in the event of his wife surviving him. This view of the common law is stated by Mr. Chief Justice Nelson, in Barber v. Harris, 15 Wend. 616. Where a deed of real estate is made to the husband and wife—
“ Each is seized of the entirety; but, being one person, there can be no moiety or separate estate between them, and the husband, therefore, cannot forfeit or alien the estate, because the whole of it belongs to the wife as well as to him. . . . During the life of the husband, he undoubtedly has the absolute control of the estate of the wife, and cán convey or mortgage it for that period.”
Mr. Chief Justice Beasley, in Washburn v. Burns, 5 Vroom, (N. J. L.) 18, announces the doctrine to be—
“ When an estate in land is vested in husband and wife as an entirety under the common law, the husband is entitled to the use and possession of the property during the joint lives of himself and wife. During this period, the wife has no interest in or control over the property.”
(See also Pray v. Stebbins, 141 Mass. 219; Topping v. Sadler, 5 Jones, [N. C.] 357; Jones v. Strong, 6 Ired. 367.)
*468This view of the matter is contrary to the decision in Diver v. Diver, supra; but that decision, upon the power of the wife to use and possess the property conveyed to her and her husband during coverture, is in conflict with the majority of decisions recognizing estates in estirety.
If we are to follow precedent in preference to principle, and adopt the old law of Great Britain concerning estates in entirety, it seems to me that the weight of authority should also be followed, to the effect that the wife has no interest or control over such estate during the joint lives of herself and husband. The ancient theory that husband and wife are one person in law, and one only, in view of our society and institutions, is, in my opinion, a mere fiction or myth, without any substance or reason, which it is useless and illogical to perpetuate. If husband and wife in taking, holding and possessing property are two persons instead of one only, as our constitution and laws recognize, and if husband and wife can take the estate by moieties as our laws permit, then the reason for the existence of an estate in entirety has wholly ceased, and such estates should not be recognized in this state. Such an estate was called “an oasis in the desert of the common law,” when that law conferred wealth and power upon the husband, and poverty and dependence upon the wife. But in the condition of things under our constitution, laws and society, the excuse or reason for such estates is not to me apparent.
For the foregoing reasons I wholly dissent from the views expressed in the opinion, and also dissent from the judgment rendered.
I think that Frank A. Baker and Alice Baker, his wife, were tenants in common, and not tenants in entirety of the premises conveyed to them by Joshua Baker on November 23, 1877; and therefore, that the judgment of the trial court should be affirmed.