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1. Bassler v. Rewodlinski, 130 Wis. 26

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Emmanuel Ortega
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Bassler v. Rewodlinski
Supreme Court of Wisconsin
November 7, 1906, Argued ; December 4, 1906, Decided
No Number in Original
Reporter
130 Wis. 26 *; 109 N.W. 1032 **; 1906 Wisc. LEXIS 27 ***
BASSLER and others, Appellants, v. REWODLINSKI
and another, Respondents.
Prior History: [***1] APPEAL from a judgment of the
circuit court for Milwaukee county: WARREN D.
TARRANT, Circuit Judge. Affirmed.
Action to enforce alleged liens on real estate claimed to
have been created as indicated by the facts found by
the trial court, which may be stated briefly thus: (1)
Johanna Ertman died in 1899 leaving her surviving Paul
Ertman, her husband, and the plaintiffs, sons by a
former husband. (2) January 22, 1892, said Paul
Ertman, who was the owner of the real estate in
question, and the said Johanna, his wife, conveyed
such property to Valentine Lukaszewski, who
reconveyed the same to them as husband and wife, and
they owned and occupied it thereafter until the death of
Johanna. (3) April 10, 1895, they duly mortgaged the
property to Henry Herman to secure indebtedness to
him of $ 800, and on May 10, 1897, they mortgaged the
same to him to secure a like indebtedness of $ 100.
After the death of Johanna her husband mortgaged the
property to said Herman for $ 900, to take up the two
prior mortgages. (4) Thereafter said Paul Ertman sold
the said real estate and conveyed the same to the
defendants, who have since occupied it. (5) Johanna
Ertman left a last will and testament, which [***2] was in
due time duly admitted to probate, whereby she willed $
200 to each of the plaintiffs to he paid out of her interest
in said real estate, and she willed the residue of such
realty to her husband. (6) The will was admitted to
probate November 8, 1899, by the county court of
Milwaukee county, Robert E. Bailey being appointed
executor. (7) Said Johanna left no personal property
and no real estate, except that in question. (8) July 7,
1903, the said county court, in due form, assigned said
realty to Paul Ertman without prejudice to any
conveyance made by him, subject to the payment of $
200 to each of the plaintiffs, and $ 45.15 to the executor,
which were declared to be liens upon the property. On
Emmanuel Ortega
these findings the court concluded as matter of law that
at the time of the death of Johanna Ertman she and her
husband were joint tenants of the realty and thereupon
that the latter took the whole by right of survivorship free
from anything contained in the former's will, and that the
defendants, as owners under Paul Ertman, were entitled
to judgment dismissing the complaint with costs.
Judgment was rendered accordingly, from which this
appeal was taken.
Disposition: Affirmed.
Core Terms
joint tenancy, husband and wife, devise, unity,
survivorship, severance, tenants, entireties, words
Case Summary
Procedural Posture
Appellants, sons of decedent by a former marriage,
sought review of a judgment of the Circuit Court for
Milwaukee County (Wisconsin), which was rendered in
favor of respondent property owners in the sons' action
to enforce alleged liens created by decedent's will on
real estate held in joint tenancy by decedent and her
husband. The court dismissed the action and held that
the husband took the whole of the property by right of
survivorship.
Overview
After their complaint seeking to enforce the alleged liens
was dismissed, the sons appealed. The court noted that
the case turned upon whether a joint tenancy in land of
husband and wife had the same characteristics as to
survivorship under the statutes as between others at
common law. The sons contended that Wis. Stat. §
2342 abolished the disabilities of married women as to
the acquirement and enjoyment of property and clothed
a woman who was a joint tenant of property with her

130 Wis. 26, *26; 109 N.W. 1032, **1032; 1906 Wisc. LEXIS 27, ***2
husband with the capacity to pass her interest in such
property by devise. The court disagreed and affirmed
the judgment. The court held that under Wis. Stat. §§
2068-2069 (1898), a conveyance of land to husband
and wife, instead of creating an estate by the entireties,
created a joint tenancy with all the common-law
characteristics thereof. The court further held that the
language of § 2342, gave to a married woman joint
tenant the same rights in the property as she would
possess if she were unmarried, but that she could not
defeat the right of survivorship by devising the property.
Outcome
The court affirmed the circuit court's judgment.
LexisNexis® Headnotes
Real Property Law > Estates > Concurrent
Ownership > Joint Tenancies
Real Property Law > Estates > Concurrent
Ownership > Tenancies in Common
Real Property Law > Ownership & Transfer > Death
& Incapacity > Testamentary Dispositions
Real Property Law > Estates > Concurrent
Ownership > General Overview
HN1[ ] Joint Tenancies
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. The most familiar method of so
severing the interest of one joint tenant from the
interests of others is by alienation. As such severance to
be effective is required to occur during the lifetime of the
joint tenant, a devise by such a tenant is inoperative. A
devise by one joint tenant of his share will be
inoperative, inasmuch as the right of survivorship takes
precedence of such devise. And so far does this
principle prevail, that if such devisor be himself the
survivor, he must republish his will after the survivorship
has accrued, in order to give it effect.
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Page 2 of 4
Real Property Law > Estates > Concurrent
Ownership > Tenancies by Entireties
Real Property Law > Estates > Concurrent
Ownership > General Overview
HN2[ ] Tenancies by Entireties
Wis. Stat. § 2068 (1898) abolishes joint tenancies,
except where the tenancy is expressly declared to be in
joint tenancy, but by Wis. Stat. § 2069, grants to
husband and wife are excepted. So circumstances that
would create a joint tenancy generally at common law
will create one between husband and wife under the
statutes, unless there be some other statute to the
contrary. In case of husband and wife, circumstances
that would as between other parties create a joint
tenancy only, would as to them add another element in
the absence of any statutory regulation making them
tenants by the entireties, as to which there could be no
severance by partition or alienation. That feature has
not existed in Wisconsin since the Revision of 1878 of
the Wisconsin Statutes. Circumstances which prior
thereto made the husband and wife tenants by entireties
subsequently have made them joint tenants with the
common-law characteristics thereof.
Family Law > Marital Duties & Rights > Property
Rights > General Overview
Real Property Law > Estates > Concurrent
Ownership > Joint Tenancies
Real Property Law > Estates > Concurrent
Ownership > General Overview
HN3[ ] See Wis. Stat. § 2342.
Family Law > Marital Duties & Rights > Property
Rights > General Overview
Real Property Law > Estates > Concurrent
Ownership > Joint Tenancies
Real Property Law > Estates > Concurrent
Ownership > Tenancies by Entireties
Real Property Law > Estates > Concurrent

130 Wis. 26, *26; 109 N.W. 1032, **1032; 1906 Wisc. LEXIS 27, ***2
Ownership > General Overview
HN4[ ] Since the Revision of 1878 of the Wisconsin
Statutes, a conveyance of land to husband and wife,
instead of creating estates by the entireties, creates a
joint tenancy with all the common-law characteristics
thereof. The language of Wis. Stat. § 2342 gives to a
married woman joint tenant the same rights in the
property as she would possess if she were unmarried,
but she cannot defeat the right of survivorship by
devising the property.
Headnotes/Summary
Headnotes
Joint tenancy: Common-law rights on death of joint
tenant: Survivorship: Tenancy in common: Devise by
one joint tenant: Effect on right of survivorship: Abolition
of joint tenancy by statute: Husband and wife: Tenancy
by entireties: Abolition by statute: Rights of wife in realty
conveyed jointly to husband and wife.
1. A joint tenancy by the common law is one where the
interests are created by one and the same person and
by one and the same conveyance and commence at
one and the same time and are held by one and the
same possession, and so have the four unities of
interest, title, time, and possession.
2. A joint tenancy by the common law differs from others
in that if the four unities continue till the death of one of
the parties, the other or others immediately become the
owners of such interest as joint tenants by right of
survivorship.
3. Anything which destroys the unity of title or interest,
as by alienation of one joint tenant, makes the owners of
the several interests a tenant in common with the
remaining joint tenant.
4. There can be no destruction of a joint tenancy by
devise, since the right of survivorship takes precedence
thereof.
5. Joint tenancies, according to the common law, except
as expressly declared, were abolished generally by sec.
2068, Stats. 1898, but an exception was made by sec.
2069 as to husband and wife.
6. At the common law, circumstances making a joint
tenancy generally, as to husband and wife, make them
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Page 3 of 4
tenants by the entireties, differing from joint tenancies,
in that there is no right of severance, terminating the
right of survivorship.
7. The added element mentioned, creating tenancies by
the entirety, has not existed in this state since the
revision of the statutes of 1878. Since that time such
circumstances as by the common law would make
husband and wife tenants by entireties, make them joint
tenants.
8. A married woman joint tenant is under all the
disabilities of a joint tenant by the common law. She
cannot under the statute, as regards her capacity to
take, hold, enjoy, and convey property, devise her
interest held as joint tenant. She has the same right as if
she were unmarried, which would not include that of
devising property held in joint tenancy.
[Syllabus by MARSHALL, J.]
Counsel: For the appellants [***3] the cause was
submitted on the brief of J. E. Wildish, and for the
respondents on that of Roemer & Aarons.
Judges: ROUJET D. MARSHALL, J.
Opinion by: MARSHALL
Opinion
[*28] [**1033] MARSHALL, J. This case turns upon
whether a joint tenancy in lands of husband and wife
has the same characteristics as to survivorship under
our statutes as between others at common law. It is
conceded that the circumstances detailed in the findings
satisfy all the essentials of a joint tenancy at common
law in cases other than those of husband and wife. The
interests were created by one and the same purchase
and by one and the same conveyance; they
commenced at one and the same time and were held by
one and the same possession. Thus we have the four
unities: unity of interest, unity of title, unity of time, and
unity of possession.
HN1[ ] 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.

130 Wis. 26, *28; 109 N.W. 1032, **1033; 1906 Wisc. LEXIS 27, ***3
[***4] Real Prop. (6th ed.) § 864. The most familiar
method of so severing the interest of one joint tenant
from the interests of others is by alienation. As such
severance to be effective is required to occur during the
lifetime of the joint tenant, a devise by such a tenant is
inoperative. The rule on that subject is thus stated at
sec. 865 in Washburn on Real Property:
"A devise by one joint tenant of his share will be
inoperative, inasmuch as the right of survivorship takes
precedence [*29] of such devise. And so far does this
principle prevail, that if such devisor be himself the
survivor, he must republish his will after the survivorship
has accrued, in order to give it effect."
Sec. 2068, Stats. 1898, which originated before the
conveyance in question, HN2[ ] abolishes joint
tenancies, except where the tenancy is expressly
declared to be in joint tenancy, but by sec. 2069 grants
to husband and wife are excepted. So circumstances
that would create a joint tenancy generally at common
law will create one between husband and wife under the
Statutes, unless there be some other statute than those
referred to to the contrary. In case of husband and wife
circumstances that would as between [***5] other
parties create a joint tenancy only, would as to them add
another element in the absence of any statutory
regulation making them tenants by the entireties, as to
which there could be no severance by partition or
alienation. 17 Am. & Eng. Ency. of Law (2d ed.) 652.
That feature has not existed here since the Revision of
1878. Circumstances which prior thereto made the
husband and wife tenants by entireties subsequently
have made them joint tenants with the common-law
characteristics thereof. That is clearly the effect of
Citizens' L. & T. Co. v. Witte, 116 Wis. 60, 92 N.W. 443,
and Wallace v. St. John, 119 Wis. 585, 97 N.W. 197.
The subject was in the latter case treated at length by
the present chief justice. Nothing can be gained by
going over the same anew. Citing from the earlier case
with approval, the court said:
"Both sections as so amended [referring to sec. 2340
and sec. 2342], as well as the revisers in their notes,
treat the estate created by deed running to husband and
wife, as in the case at bar, as an estate 'held in joint
tenancy,' instead of being held as tenants of the entirety,
as at common law. . . . Manifestly, the revisers [***6]
intended by the amendments to cover cases of tenants
of the entirety held by husband and wife, especially as
in one section the words 'held in joint tenancy' follow the
words 'the real estate of every description,' and in the
other section follow the words 'any interest or estate
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Page 4 of 4
therein [*30] of any description,' and in both sections
they are followed by the words 'and the rents, issues,
and profits thereof,' or their equivalent. Unless that is so,
the new provisions inserted in the sections are without
significance."
Counsel for appellants earnestly contend that sec. 2342
aforesaid abolishing the disabilities of married women
as to the acquirement and enjoyment of property,
inferentially at least, clothes such a woman, who is a
joint tenant of property with her husband, with the
capacity to pass her interest in such property by devise.
These words are referred to:
HN3[ ] "Any married female may . . . convey and
devise real and personal property and any interest or
estate therein of any description, including all held in
joint tenancy with her husband, . . . with like effect as if
she were unmarried."
It is urged that nothing contained in Wallace [**1034] v.
St. John, supra, [***7] is inconsistent with the claim
that such statute permits a joint tenancy between
husband and wife to be severed by a devise by the wife,
since the case only dealt with severance by alienation.
The conclusive answer to that seems to be that in both
of the cases cited the court held that HN4[ ] since the
Revision of 1878 a conveyance of land to husband and
wife, instead of creating estates by the entireties,
creates a joint tenancy with all the common-law
characteristics thereof. The language of sec. 2342, as
suggested by counsel for respondents, gives to a
married woman joint tenant the same rights in the
property as she would possess if she were unmarried,
but as in the latter case she cannot defeat the right of
survivorship by devising the property, she cannot in the
former.
So the learned trial court reached the right conclusion.
Johanna Ertman being a joint tenant of the property with
her husband, she was under a disability, the same as he
was, to pass her interest or to in any way incumber it by
will. Her attempt to do so did not affect his right of
survivorship. Upon her death he became the absolute
owner of the whole property, and the respondents as his
grantees succeeded to such [***8] ownership.
By the Court.--Judgment is affirmed.
End of Document