explaining that “a joint tenant has a specific, albeit undivided, interest in the property, and if he survives his cotenant he *418 becomes the owner of a larger interest than he had prior to the death of the other joint tenant”
How later courts described this case
- explaining that “a joint tenant has a specific, albeit undivided, interest in the property, and if he survives his cotenant he *418 becomes the owner of a larger interest than he had prior to the death of the other joint tenant”
- resolving the question of “whether the interest of one spouse in real property, held in tenancy by the entireties, is subject to levy and execution by his or her individual creditors” based on common law precepts, without relying on Haw. Rev. Stat. § 509-2
Written by the judges who cited it.
The opinion
DISSENTING OPINION OF
KIDWELL, J.
This case has been well briefed, and the arguments against the conclusions reached by the majority have been well presented. It will not materially assist the court in resolving the issues for me to engage in an extensive review of the conflicting views. Appellants ’ position on the appeal was that *618 tenancy by the entirety as it existed at common law, together with all of the rights which the husband had over the property of his wife by virtue of the common law doctrine of the unity of the person, was recognized by the early decisions, Paahana v. Bila, 3 Haw. 725 (1876); Von Hasslocher v. Executors of Robinson, 3 Haw. 802 (1877); Cummins v. Wond, 6 Haw. 69 (1872); Kuanalewa v. Kipi, 7 Haw. 575 (1889); that the Married Women’s Act of 1888 (now Ch. 573, HRS) destroyed the fictional unity of husband and wife, First National Bank v. Gaines, 16 Haw. 731 (1905); that the legislature has recognized the continuing existence of the estate of tenancy by the entirety, but has not defined the nature or the incidents of that estate, HRS § 509-1, 509-2; that at common law the interest of the husband in an estate by the entireties could be taken by his separate creditors on execution against him, subject only to the wife’s right of survivorship, Kuanalewa v. Kipi, supra; and that the Married Women’s Act merely eliminated any inequality in the positions of the spouses with respect to their interests in the property, thus depriving the husband of his former power over the wife’s interest, without thereby altering the nature and incidents of the husband’s interest.
I find the logic of Appellant’s analysis convincing. While the authorities are divided, I consider that the reasoning of the cases cited by Appellant best reconciles the Married Women’s Act with the common law. Hiles v. Fisher, 144 N.Y. 306 , 39 N.E. 337 (1895); Pope v. McBride, 207 Ark. 940 , 184 S.W.2d 259 (1944); Branch v. Polk, 61 Ark. 388 , 33 S.W. 424 (1895); King v. Greene, 30 N.J. 395 , 153 A.2d 49 (1959); Buttlar v. Rosenblath, 42 N.J.Eq. 651, 9 Atl. 695 (1887); Brownley v. Lincoln County, 218 Ore. 7 , 343 P.2d 529 (1959); Ganoe v. Ohmart, 121 Ore. 116 , 254 Pac. 203 (1927); Hoffmann v. Newell, 249 Ky. 270 , 60 S.W.2d 607 (1932); Cole Mfg. Co. v. Collier, 95 Tenn. 115 , 31 S.W. 1000 (1895); Raptes v. Cheros, 259 Mass. 37 , 155 N.E. 787 (1927).
The majority reaches its conclusion by holding that the effect of the Married Women’s Act was to equalize the positions of the spouses by taking from the husband his common *619 law right to transfer his interest, rather than by elevating the wife’s right of alienation of her interest to place it on a position of equality with the husband’s. I disagree. I believe that a better interpretation of the Married Women’s Acts is that offered by the Supreme Court of New Jersey in King v. Greene, 30 N.J. 395, 412 , 153 A.2d 49, 60 (1959):
It is clear that the Married Women’s Act created an equality between the spouses in New Jersey, insofar as tenancies by the entirety are concerned. If, as we have previously concluded, the husband could alienate his right of survivorship at common law, the wife, by virtue of the act, can alienate her right of survivorship. And it follows that if the wife takes equal rights with the husband she must take equal disabilities. Such are the dictates of common equality. Thus the judgment creditors of either spouse may levy and execute on their separate rights of survivorship.
One may speculate whether the courts which first chose the path to equality now followed by the majority might have felt an unexpressed aversion to entrusting a wife with as much control over her interest as had previously been granted to the husband with respect to his interest. Whatever may be the historical explanation for these decisions, I feel that the resultant restriction upon the freedom of the spouses to deal independently with their respective interests is both illogical and unnecessarily at odds with present policy trends. Accordingly, I would hold that the separate interest of the husband in entireties property, at least to the extent of his right of survivorship, is alienable by him and subject to attachment by his separate creditors, so that a voluntary conveyance of the husband’s interest should be set aside where it is fraudulent as to such creditors, under applicable principles of the law of fraudulent conveyances.