(on rehearing). There was a motion for rehearing, which motion was granted and the case has been reheard, reargued, and reconsidered. Reference is made to the opinion on file for a statement of the facts.
The question to be determined is whether or not the language contained in the premises or introductory clause expresses an intention on the part of the grantor to create a joint tenancy, and, if so, whether or not there is a conflict between that and the granting clause of the deed which controls the language of the premises or introductory clause. At common law estates with respect to the number and connection of their owners who held them were of four kinds: where an estate was owned by a single person it was described as an estate in severalty; estates held by two or more *44persons are described as estates in joint tenancy, coparce-nary, and common'. Of these estates an estate in joint tenancy was the only one which had the characteristic or incident of survivorship. 2 Blackstone, ch. XII. At present in this country there are with respect to the number and connection of their owners five different estates: estates in sev-eralty, in joint tenancy, in coparcenary, in common, and by the entirety. There is in some sections of the country a kind of estate denominated community estate or community property. Community property was unknown at the common law, and the legal concept is derived in the main from the Spanish and French law. Estates of that sort depend for their existence in this country mainly upon statutes creating them. 5 Ruling Case Law, p. 825,' §§ 2, 3.
By sec. 230.43, Stats., estates in respect to the number and connection of their owners are divided into estates in severalty, in joint tenancy, and in common. By this statute estates in entirety and estates in coparcenary were abolished. Wallace v. St. John, 119 Wis. 585, 97 N. W. 197. In this country estates in joint tenancy have met with disfavor and in some jurisdictions have been abolished altogether. At common law an estate granted to A and B and their heirs made them joint tenants in fee of the land. 2 Blackstone, p. 180.
By sec. 230.44, Stats., it is provided that all grants made to two or more persons shall be construed to create estates in common and not estates in joint tenancy unless expressly declared to be in joint tenancy, except as provided in sec. 230.45. Sec. 230.45 provides that sec. 230.44 shall not apply to mortgages nor to devises or grants made in trust, nor to executors, nor to husband and wife. So that in the main the rule at the common law is reversed by statute.
Although the grantees in the deed in the case at bar were not in fact husband and wife, the conveyance was made to them in the same form it would have been made were they *45husband and wife. Not being husband and wife, the deed would not come within the exception created by sec. 230.45.
The decisive question in this case is, Does the grant made expressly declare that it is intended to create an estate in joint tenancy? An estate in joint tenancy was the only estate known at the common law or is known in the law of this state which has the incident of survivorship. If the language in the deed had been “Tomas Nedin and Sofi Nedin, his wife, as joint tenants,” no one familiar with the language of conveyancing could have any doubt as to the intent of the parties. Mette v. Feltgen, 148 Ill. 357, 36 N. E. 81.
It is not necessary in a grant or a devise to use the term “joint tenancy.” Any other expression which clearly discloses an intent to create an estate in joint tenancy is sufficient. Purdy v. Hayt, 92 N. Y. 446; Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738. This court, in common with the courts of New York and Illinois, has held that the use of the word “jointly” is not by itself a sufficient declaration of an intent to create an estate in joint tenancy to overcome the statutory presumption (Fries v. Kracklauer, 198 Wis. 547, 224 N. W. 717), although there is very respectable authority to the contrary. See 2 Thompson, Real Property, p. 934, § 1724, and cases cited.
The word “jointly” as used in common parlance is a word applicable to estates in common as well as to joint tenancy. This is due to the fact that in each the right of possession is in all of the owners equally. Technically, “jointly” applies only to estates in joint tenancy. Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738. So it is held in Wisconsin, Illinois, and New York that unless it appears to be used in its technical sense, it lacks the element of certainty necessary to comply with the statute.
The word “survivor” or “survivorship,” however, has no equivocal meaning. Survivorship is an incident of an estate in joint tenancy and of no other under our law. A testator *46devised certain real estate as follows: “One third part thereof to the children of my said daughter Margaret Prentiss, and the survivor or survivors of them.” These were held to be apt words to create an estate in joint tenancy. Stimpson v. Batterman, 5 Cush. (59 Mass.) 153. While the decision was made prior to the enactment of statutes similar to secs. 230.44 and 230.45, it does not lose its force on that account.
“There is no substantial difference between deeding or devising land to two persons and the survivor of them and deeding or devising land to two or more persons to be held in joint tenancy.” 2 Thompson, Real Property, p. 934, § 1724.
Upon reason and authority it is held that the words “and the survivor of either,” in the introductory clause of the deed in question, are amply sufficient to disclose a clearly expressed intent to create an estate in joint tenancy within the meaning of sec. 230.44. It is contended, however, that so construed it is utterly repugnant to the provisions of the granting clause which conveys the premises to the grantees, their heirs and assigns forever. The use of the word “assigns” in a conveyance to one “and his heirs” is without any legal significance and the words are in fact superfluous. 4 Thompson, Real Property, p. 459, § 3345, and cases cited. Omitting the word “assigns” from the granting clause of the deed under consideration because it is without legal effect, we have the following: “to the said parties of the second part, their heirs forever.” These are the identical words which at common law were used to create an estate in joint tenancy. 2 Blackstone, p. 179. We are at a loss, therefore, to understand how it can be averred that there is any irreconcilable conflict in these two clauses. We have again carefully examined briefs of counsel and fail to find any case cited except Fries v. Kracklauer, supra, where it is held that there is any incon*47sistency in the use of the words “their heirs” in the granting clause and words in the introductory clause disclosing an intent to create an estate in joint tenancy. By virtue of sec. 230.44, the use of the words “their heirs” alone creates an estate in common. The use of the words is, however, in no way inconsistent with the creation of an estate in joint tenancy. It follows, therefore, as an irresistible conclusion that the intent clearly expressed in the introductory clause must be given effect and the conveyance under consideration held to create an estate in joint tenancy. We have examined the cases cited to sustain the proposition that where there is an irreconcilable conflict between the introductory and granting clauses, the granting clause controls, but we find none having any bearing upon this question. That rule, in common with all other rules of construction, must yield to the rule that the intent of the parties is to prevail. That intent, of course, is the intent described in Chicago, M. & St. P. R. Co. v. H. W. Wright Lumber Co. 123 Wis. 46, 100 N. W. 1034. We have a situation here where it is not impossible to give a meaning to the word used in the introductory clause which is consistent with the language of the granting.clause, therefore the rule respecting conflicting clauses has no application.
In Fries v. Kracklauer, supra, the statement was made that the use of the words “their heirs and assigns forever” clearly negatives the idea of survivorship, the fundamental feature of joint tenancy. Two cases are cited, neither of which sustains the conclusion stated. In Mustain v. Gardner, 203 Ill. 284, 67 N. E. 779, the language of the devise was, “To my beloved daughter, Ola I., and my beloved wife, Sarah A. Mustain, jointly, I give, devise and bequeath (description of the property) to them and to their heirs and assigns forever.” In the opinion no reference was made to the use of the words “their heirs and assigns forever,” it being *48held merely that the use of the word “jointly” could not avail to take the devise out of the operation of the statute.
In Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738, the language of the devise was: “Second. I give and devise to my daughters, Eliza Jane Marsh and Hester Marsh, jointly, the lot of ground,” etc. The case of Mustain v. Gardner, supra, is cited, and after citing other cases the court of appeals held that the use of the word “jointly” did not amount to an express declaration of an intent to create a joint tenancy sufficient to negative the presumption established by statute that tenancy in common was intended.
From the earliest times it was a rule of the common law that a conveyance to “two, three or four or more, to have and to hold to them and to their heirs,” made them joint tenants. 1 Coke’s First Inst. 728. See, also, 2 Sugden, Vendors, 697; Williams, Real Property, 164, 166; 3 Ploldsworth, History of the Common Law, 126 — 128.
In Fries v. Kracklauer, supra, it was no doubt the intention to adopt the rule stated in Mustain v. Gardner and Overheiser v. Lackey. What was there said about the use of the words “their heirs and assigns” was not necessary to the decision and it is withdrawn.
By the Court. — The mandate heretofore entered is vacated. The order appealed from is reversed, and cause remanded with directions to the trial court to enter an order sustaining the demurrer and for further proceedings according to law.
The following opinion was filed February 8, 1933 :