¶1(dissenting). Provisions of statute creating joint tenancy (60 O.S. 1945 Supp. §74) contemplate a tenancy by entirety and despite a divided equal ownership during the life of the parties. A survivorship of the whole of the property embraced accrues to the surviving joint tenant. In other words, upon the death of one of the joint tenants, the title as a whole is vested in the other. 48 C.J. 910; 50 Am. Jur. 265-266.
¶2Otherwise, and in the case of intestacy as applied to the property acquired by the joint industry of husband and wife during coverture where a character of tenancy in common exists, upon the death of one spouse with right of disposition, the entire estate goes to the other, conditioned, however, that all or any part of the estate remaining at the death of the spouse last dying, the estate goes in equal shares to the heirs of the husband and the wife, according to the right of representation.
¶3All real property involved in the case at bar was within the joint tenancy. Wherefore, the heirs of the wife (she having predeceased her husband) take nothing. In this, I am in accord with the majority.
¶4If the majority lead me into error as to the rule, the fact remains that the husband surviving was possessed of a child by a former marriage; therefore the proviso of the statute, 84 O.S. 1941 §213, subd. 2, has no application. Heretofore, this court has held the spouse was not without issue.
¶5The statute relating to joint tenancy, 60 O.S. 1945 Supp. §74, supra, provides that the granting clause of a deed conveying an estate by entirety (joint ten*203ancy) “shall control over the habendum clause containing language inconsistent to the granting clause”. Herein, the deed granted to A. O. Walker and Mildred Walker “as joint tenants with right of survivorship”. Therefore, it is immaterial that the habendum clause contained the words “their heirs, successors and assigns”.
¶6The statute, supra, although enacted after the date of acquisition of the property by deceased, nevertheless governs. Distribution of the spouses’ estates is to be governed by the statute in effect at the time of their deaths.
¶7But the majority unnecessarily confirm a prior overruling of Byers v. Brinlee, 157 Okla. 72, 10 P. 2d 690, and adhere to the adverse rule announced in Griffin v. Dohner, 199 Okla. 676, 189 P. 2d 933.
¶8Under article 7, sec. 12, Constitution of Oklahoma, the county court lacks jurisdiction to determine the effect of execution and delivery of a deed or other issue affecting title or boundaries to land.
¶9On appeal to the district court in such cases, the cause is to be tried de novo. The consequence is that the district court, in such an appeal, also sits in probate. It cannot in such cases adjudicate title or the boundary to land.
¶10According to the statutory rule relating to the devolution of property, supra, by the proviso, supra, where property is acquired by the joint industry of husband and wife during coverture and there is no issue, the successor, by descent, takes the whole of such an estate, with right of disposition; if any of the estate remains at the death of the surviving spouse, the property goes one-half to the heirs of the husband and one-half to the heirs of the wife by right of representation.
¶11I am not at all in accord with the rule expressed in Essex v. Washington, 198 Okla. 145, 176 P. 2d 476, which is applied by the majority to that part of the estate involved consisting of personal property, shares of stock, an automobile, and the like. This personal property was acquired by the joint industry of husband and wife during cov-erture. Devolution of this part of the estate is by majority made to depend upon averment of title in the spouse first dying. This is jointly acquired property. 84 O.S. 1941 §213(2).
¶12Where during coverture a spouse has granted property, acquired by joint industry, in trust to the other, and there is no issue, or property is acquired and for convenience sake is taken in the name of one or the other of the spouses, that fact is immaterial to devolution of the estate, Goff v. Goff, 104 Okla. 257, 231 P. 204.
¶13In the Griffin case, supra, the situation as to the heirs of H. B. Griffin would have been similar had Roma Griffin survived him and had she been the record owner of the land at his death and at her death.
¶14While some convenience may be occasioned by a multiple determination of “technical heirs” together with heirs at law in the probate of the estate of one deceased person, I do not think there exists any class of “technical heirs”. They are, or they are not, heirs with right of representation. A specified interest in such an estate goes to the heirs of each spouse in whose lifetime such property was jointly acquired. The adverse result confounds confusion, of law, of facts, and of procedure.