dissenting:
I dissent to the majority opinion for a multitude of reasons.
The first statute that was completely ignored in this cause is section 94-201-1, R.C.M.1947, which reads:
“When a coroner is informed that a person has been killed, or has committed suicide, or has died under such circumstances as to afford a reasonable ground to suspect that his death has been occasioned by the act of another by criminal means, he must go to the place where the body is, cause it to be exhumed if it has been interred, and summon not more than nine persons, qualified by law to serve as jurors, to appear before him, forthwith, at the place where the body of the deceased is, to inquire into the cause of the death.”
Although the record discloses that the coroner of Park County was present as were the sheriff and county attorney and the Livingston police, yet the provisions of the above-quoted mandatory statute were not obeyed, but on the contrary much speculative, hearsay evidence was given in the probate hearing which in effect accused and convicted the deceased Jess Cox of the crime of murder in the first degree without any complaint, information or indictment made or filed, and without any credible evidence being presented to establish the oral accusation so made against the dead man.
There are four ways in which this tragedy could have occurred, namely:
(1) The death of Mr. and Mrs. Cox could have been caused by an intruder; or,
(2) The death of both could have been an accident; or
(3) Jess Cox could have been insane, and thus been ren*592dered incapable in the eyes of the law of entertaining the intent to commit murder or any other crime; or
(4) Jess Cox could have shot his wife and then himself. This writer does not suggest any implication on the integrity, honor and ability of my brethren in the majority. I have great respect for their mental honesty and legal ability.
Into every litigated cause there is the patter of the raindrops of error which ofttimes is of sufficient consequence to require a reversal under our laws. I have failed to find in the records of this court any case where there has been such a deluge of rampant error that has been so completely ignored and consigned to oblivion, as is presented in the majority opinion herein.
The majority opinion commences one paragraph in the following language:
“It is to be pointed out that the determination that Jess feloniously killed Bess is not a criminal determination, but is solely restricted to the issue of right to acquire the joint interest of Bess.” Emphasis supplied.
In the second paragraph following this statement, the opinion states:
“The decisive fact in the case at bar is the voluntary, unlawful and felonious killing of one joint tenant by another as distinguished by an unintentional killing. Prom all the evidence it appears that Jess Cox shot his wife causing her immediate death before killing himself.” Emphasis supplied.
Despite the protestations and acrobatic semantics that obtain in the majority opinion, it nevertheless tries and convicts in absentia the deceased Jess Cox of first degree murder, and then pronounces upon him this awesome judgment, arrived at by nothing other than hearsay evidence presented in a probate proceeding. Devoid of the protective carapace of the law and the applicable statutes of Montana, this court holds this litigation as a probate question for the determination of heir-ship. Nothing could be further from factual reality.
*593The sole question presented is the determination of a joint tenancy under section 67-310, R.C.M.1947, which reads:
“In all conveyances of real property made in joint tenancy or to tenants in estates by entirety, where the right of survivor-ship is contained in the grant of such conveyance, the right of survivorship is hereby expressly declared to exist by virtue of such grant.” Emphasis supplied.
The majority opinion turns on a maxim of jurisprudence found in section 49-109, R.C.M.1947, which reads: “No one can take advantage of his own wrong.”
The Montana Legislature never enacted a statute which in effect stated that a person who feloniously takes or causes or procures another to take the life of another shall inherit from any such person, or receive any interest whatsoever in the estate if the decedent has a surviving spouse.
This court by this decision usurps the realm reserved for the Legislature. It is apparent, that there being no statute, the devolution of the decedent’s estate cannot be accomplished except by the statute, section 67-310, supra. The heir of the joint tenancy 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 law itself made no exception and it was not the province of this court to read into the law something which it did not and does not contain. Numerous decisions to this effect are based on the ground that the Legislature in directing the course of descent and distribution of estates, has declared the public policy of the state in that respect, and the courts could not alter or affect the policy so determined.
In Thompson on Real Property, 1929 Supplement, Paragraph 1735:
“An estate by entirety is an estate held by the husband and wife by virtue of the title acquired by them jointly after marriage. It is peculiar and anomalous estate, sui generis in character. Estates by entirety have no moieties. Each owner holds *594the entirety, each receives per tout et non per my. Such estates are creatures of the common law created by legal fiction and based Avholly 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 Avhole. There can be no severance of the estate by the act of either, and a survivor becomes seized as sole owner of the entirety of the estate. The estate is not one of inheritance.”
The majority opinion cites National City Bank of Evansville v. Bledsoe, 237 Ind. 130, 144 N.E.2d 710, but the majority opinion fails to state that in that cause it was admitted that on one and the same day, Bynus W. Bledsoe shot and killed his Avife Thelma. The majority opinion further fails to mention that the Indiana statute, Acts of 1953, ch. 112, § 212, p. 295 imposing a constructive trust upon one convicted of intentionally causing the death of another, specifically recognizes the pre-existence of equity rules to such effect by stating: “A person * * * convicted * * * shall, in accordance with the rules of equity, become a constructive trustee.” Emphasis supplied.
The majority opinion also cites a Maryland case, Price v. Hitaffer, 164 Md. 505, 165 A. 470, 471. The first paragraph of this opinion is as follows:
“This appeal is from an order of the Orphans’ Court of Baltimore City passed in the distribution of the Estate of Della A. Martin, deceased intestate, Avhich order excluded from participation in the distribution of said estate the heirs or personal representatives of Walter J. Martin, the husband of Della A. Martin, who, it is admitted and proven, did on the first day of October, 1931, shoot and kill his Avife, and almost immediately thereafter commit suicide. These facts present the main question to be determined, namely: Can a murderer, or his heirs and representatives through him, be enriched by taking any portion of the estate of the one murdered?”
It is to be noted that the estate of Della A. Martin was her *595estate in its entirety and not a joint tenancy. Further it was admitted and proven that Walter J. Martin killed Della A. Martin which facts are not legally contained in the purview of the transcript in this cause.
The instant appeal was tried to the court sitting in probate under the provisions of section 91-3801, R.C.M.1947. The action should have been brought under section 91-4321, R.C.M.1947, for the termination of life estate or joint tenancy.
This court in Denke v. Wylie, 133 Mont. 424, 435, 324 P.2d 403, 408, held:
“In a special probate proceeding under section 91-4321, supra, a statute for the termination of a life estate, the court below rendered a judgment quieting title to the real property in question. This cannot be done.
“Proceedings to quiet title are set forth in sections 93-6201 to 93-6239, R.C.M.1947. The instant proceeding in no way meets the requirements set forth. To mention but a few, there are neither parties plaintiff nor defendant, no lis pendens, no summons or service thereof. We are aware that by section 93-6239, the statutes on quiet title are cumulative and in addition to any other remedy, but no such remedy exists under section 91-4321, R.C.M.1947, in the termination of a life estate.
“Thus we hold that under the termination of a life estate statute, section 91-4321, supra, in which the statute limits the court to making an order terminating the life estate, the court had no jurisdiction to render certain parts of the judgment as was done herein, nor could the parties confer jurisdiction on the court. In re Spriggs’ Estate, supra. [68 Mont. 92, 216 P. 1108].”
This was the language of the Montana Supreme Court on April 10, 1958, and if this reasoning be true, then the lower court in the instant cause was wholly and completely without jurisdiction to make a determination that the deceased, Jess Cox, was guilty of first degree murder.
*596The writer is motivated in this dissent by the Twelfth Century Oath of Maimonides, which is:
“Grant me strength, time and opportunity always to correct what I have acquired, always to extend its domain; for knowledge is immense and the spirit of man can extend infinitely to enrich itself daily with new requirements. Today he can discover his errors of yesterday and tomorrow he may obtain a new light on what he thinks himself sure of today.”
MR. JUSTICE ADAIR, dissenting:Such dissent will be filed later.