{dissenting). The members of the court who join in this dissenting opinion fully agree that the equitable doctrine, that a man shall not profit by his own wrongdoing, should be invoked in this case. However, this case is one of first impression in this state and we believe that this court should by its decision herein attempt to establish that principle as a precedent which will be most equitable.
3 Bogert, Trusts and Trustees (Part 1), p. 48, sec. 478, states that the courts have reached three results in a case where one joint tenant murders the other. Some courts, applying what the author terms “mediaeval logic with regard to joint tenancy and entireties” have held that the murderer takes the property freed from the rights of survivorship of the murdered joint tenant. Other courts, by invoking the fiction of constructive trusts, have arrived at the same result as that stated in the majority opinion herein. Then, as the author points out, “Some courts have, however, divided the fee, and permitted the wrongdoing spouse to retain half, as if a divorce had occurred.”
We believe that the last-mentioned result is the most equitable and can be justified upon the theory that the murder *275operates as a severance of the joint tenancy resulting in a tenancy in common whereby the murderer retains ownership to an undivided one-half interest, but gains no title in, or enjoyment of, the other half, which other half vests in the heirs at law and next of kin of the murdered joint tenant.
In Bassler v. Rewodlinski (1906), 130 Wis. 26, 28, 109 N. W. 1032, 7 L. R. A. (N. S.) 701, it was said:
“The special significant incident of joint tenancy is the right of survivorship, by which on the death of any tenant his interest goes to his survivors. Anything which destroys the unity of title or interest without affecting the unity of possession will turn the interest severed from the others into a tenancy in common as regards the remaining joint tenants. 2 Bl. Comm. 192; 1 Washb. Real Prop. (6th ed.) sec. 864. The most familiar method of so severing the interest of one joint tenant from the interests of others is by alienation.”
In the instant case, except as to the homestead, the husband any time during the lifetime of himself and his wife could have obtained a severance of the joint tenancy by alienation. As to all the joint property, including the homestead, he could have obtained such severance by partition suit. Likewise such severance could have been accomplished by the aid of a judgment making a property division in a divorce action.
The theory underlying those decisions which justify the result of the heirs of the murdered joint tenant taking all (not merely one half) of the joint property is that, by reason of the murder, the murdered joint tenant is thereby prevented from ever securing title to the whole by survivorship. However, it is entirely a matter of speculation as to which joint tenant would have outlived the other, in the event the murder had not been committed, or that a severance would not have taken place during the lifetime of both joint tenants as a result of alienation by either, partition, or divorce. Therefore, it seems that the result reached in the majority *276opinion comes very close to working a corruption of blood, or a forfeiture of estate, as to one who has been guilty of crime, which is prohibited by sec. 12, art. I of the Wisconsin constitution.
I am authorized to state that Mr. Chief Justice Fritz and Mr. Justice Broadfoot join in this dissent.