(concurring). I agree that the former mandate in this case should be reversed, but for quite a different reason than that stated in the opinion.
As so fully appears, a conveyance at common law made to two persons vested in them an estate in joint tenancy, but *49because joint tenancies have not met with the same popularity in this country that they enjoyed in England, for reasons that will be found well stated in Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738, many of the states of this country, including our own, have abolished joint tenancies, except where specifically declared and except in certain instances.
Sec. 230.44, Stats., provides 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 declared in sec. 230.45, which provides that the provisions of sec. 230.44 shall not apply to grants made to, among others, husband and wife.
In the introductory clause of the deed here under consideration it was stated that the indenture was made between Henry Nehrbass and Hattie Nehrbass, his wife, parties of the first part, and Tomas Nedin and Soil Nedin, his wife, and to the survivor of either, parties of the second part. It is plain that the grantors supposed they were conveying the property to Tomas Nedin and his wife. They evidently had reason to believe and did believe that Soil Nedin was the lawful wife of Tomas Nedin. If Soft Nedin had been the lawful wife of Tomas Nedin, no matter what the grantors intended, the law declared the estate conveyed to be one in joint tenancy. Upon reflection, I am of the opinion that it should now be held that whether the estate conveyed was one in joint tenancy should not be challenged years afterwards upon proof of the fact that Sofi was not the lawful wife of Tomas. The facts recited in the deed should be held conclusive evidence that the grantors believed them to be husband and wife, and that they intended to vest them with an estate in joint tenancy. This appears to me to be a reasonable rule, and stabilizes titles where they appear in name of husband and wife, though subsequent events may prove that the parties are not *50husband and wife. This goes sufficiently far to settle this case and to indicate that the former mandate was erroneous.
From the main opinion I gather the further holding of the court that wherever the word “survivor” appears in a deed, in a salt-and-pepper fashion, no matter in what connection, no matter whether it contradicts any other provision of the deed, and no matter whether the scrivener who inserted it knew anything about the qualities of a joint tenancy, it conclusively establishes the fact that a joint tenancy was intended. To this I cannot yield assent. As was said in the former opinion, no reasonable meaning can be ascribed to the word “survivor” in the connection in which it is used in this deed. It is used in the introductory clause, and, as is well known, the- introductory clause merely identifies the parties to the instrument.
' In this deed the introductory clause states in effect that the indenture is made between Henry Nehrbass and Hattie Nehrbass, his wife, parties of the first part, and Tomas Nedin and Sofi-Nedin, hiS wife, and to the survivor of either, parties of the second part. Now in fact the deed is made between Henry Nehrbass and Hattie Nehrbass, parties of the first part, and Tomas Nedin and Sofi Nedin, parties of the second part. The addition of the term “survivor” means nothing at all. The survivor must be either Tomas Nedin or Sofi Nedin, and they are already described as parties to the deed. To describe the parties of the second part as Tomas Nedin and Sofi Nedin, and the survivor of either, is, what Mr. Justice Timlin often termed in his opinions, pure nonsense.
In this case it was not necessary to say anything about joint tenancy, because the grantors were conveying to husband and wife, or to those whom they believed to be husband and wife. But if under other circumstances they intended ‡0 create a joint tenancy, the statute required them to so ex*51pressly declare, and this they could easily have done by interlining in the granting clause the expression “in joint tenancy.” This would have been just as easy to have done, and would have complied explicitly with the statute, as the expression in the introductory clause which the court holds manifested an indubitable intention to create a joint tenancy. It is to be noted that the decision of the court is not limited to deeds running to alleged husbands and wives, but to deeds running to any two grantees.
Now it is freely conceded that the exact language of the statute need not be used in order to create a joint tenancy. There are numerous decisions to this effect. Mette v. Feltgen, 148 Ill. 357, 36 N. E. 81; Slater v. Gruger, 165 Ill. 329, 46 N. E. 235; Taylor v. Lowencamp, 104 N. J. Eq. 302, 145 Atl. 329; Mustain v. Gardner, 203 Ill. 284, 67 N. E. 779; Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738. In many of those cases it is held that the use of the term “survivor” in a deed, when used in significant juxtaposition, is sufficient to create a joint tenancy, survivorship being a distinguishing feature of a joint tenancy. However, many of the courts have given attention to the question of whether the scrivener who drew the deed knew what he was talking about when he used the term “survivor.” Many draw deeds who know nothing at all about the qualities of a joint tenancy as distinguished from a tenancy in common, and where the sole term “survivor” is relied upon to establish a joint tenancy, inquiry has often been made as to whether the person drawing the deed was learned in the law and presumptively knew of the distinguishing features of a joint tenancy. If this appeared, greater significance was given to the presence of the term “survivor” in the deed.
One of such cases is Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738, where the court noted that in the granting clause of the deed the scrivener used the térm “lien” instead *52of “alien,” and it concluded that it was not construing the product of one learned in the law. In that case the court failed to recognize an intention to create a joint tenancy by the desultory use of the term “survivor,” and the dissenting opinion stated that this conclusion was strengthened bjr the fact that the term “survivor” was found in the introductory clause of the deed. Now it seems to me that one who uses the term “survivor” in the introductory clause of a deed, where it must mean one of two already recited in the deed, cannot be held to have a profound knowledge of what the statutes of this state require in order to constitute a joint tenancy, and its presence at such point in the deed cannot be accorded conclusive effect of what the parties did intend with reference to the creation of a joint tenancy. It might be used by an unschooled person for mere rhetorical effect. Certainly it seems to me that one learned in the law would not rest a joint tenancy upon so precarious a circumstance.
While I concede that under the circumstances this deed should be construed as one creating a joint tenancy, I do think that the holding of the court, which seems to be virtually to the effect that wherever the word “survivor” appears desultorily in a deed that deed ipso facto creates a joint tenancy, is going a little too far.