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, JOINT-TENANCY, each other: but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste (w); for coparceners could at all times put a stop to any waste by writ of partition, but till the statute of Henry the eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points: 1. They always claim by descent, whereas joint-tenants always claim by purchase. Therefore, if two sisters purchase lands, to hold to them and their heirs, they are not parceners, but joint-tenants (x): and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man hath two daughters, to whom his estate descends in coparcenary, and one dies before the other; the surviving daughter and the heir of the other, or when both are dead, their two heirs, are still parceners (y); the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have an unity, have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety (z); and of course there is no jus accrescendi, or survivorship, between them: for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are
the tenants therein, whether male or female, called parce[ * 189 ] ners. But if *the possession be once severed by partition,
they are no longer parceners, but tenants in severalty; or if
(2) Ibid. 163, 164.
(a) Litt. s. 309. (y) Co. Litt. 164, 174.
Though Lord Coke, in the same place, shall not take away the entry of her
Parceners are so called, saith Littleton (b), because they of the methods
of making parmay be constrained to make partition. And he mentions tition of estates
held in coparmany methods of making it (c); four of which are by con- cenary. sent, and one by compulsion. The first is, where they agree to divide the lands into equal parts in severalty, and that each shall have such a determinate part. The second is, when they agree to choose some friend to make partition for them, and then the sisters shall choose each of them her part according to seniority of age; or otherwise, as shall be agreed. The privilege of seniority is in this case personal ; for if the eldest sister be dead, her issue shall not choose first, but the next sister. But, if an advowson descend in coparcenary, and the sisters cannot agree in the presentation, the eldest and her issue, nay her husband, or her assigns, shall present alone, before the younger (d) (17). And the reason given is, that the former privilege of priority in choice upon a division, arises from an act of her own, the agreement to make partition; and therefore is merely personal : the latter, of presenting to the living, arises from the act of the law, and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall choose last; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is, where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion is, where one or more sue out a writ (18) of partition against the others; whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impanneled, and, assign to each of the parceners her part in severalty (e). But there are some things *which [ * 190 ]
(6) s. 241.
an easier method of carrying on the
(17) Mr. Christian observes, that in chap. 30, dial. 2, of the Doctor “ it has been doubted whether the and Student.--Ed.] grantee of the eldest sister shall have (18) See ante, p. 185, note, that the first and sole presentation after the proceeding by writ is now almost death. Harg. Co. Litt. 166. But it entirely superseded by the more conwas expressly determined in favour venient process of a commission out of such a grantee in 1 Ves. 340.” of a court of equity. [See a summary of this subject stated
are in their nature impartible (19). The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance: or, if that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowson (f).
There is yet another consideration attending the estate in coparcenary: that if one of the danghters has had an estate
given with her in frankmarriage by her ancestor, (which we Seone whicesteine may remember was a species of estates-tail
, freely given by a relation for advancement of his kinswoman in marsisters in co- riage (g),) in this case, if lands descend from the same an
cestor to her and her sisters in fee-simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with
Where one of the daughters has an estate given with her in frankmarriage, by the same from whom lands descend to her and her
the common law, is chalked out and
(f) Co. Litt. 164, 165.
(19) A title of honour, for instance. office of honour dies, having issue Thus, our author tells us, (in chap. 14, two daughters, before the marriage of p. 216,) “if a man holds an earldom either of them, they may jointly make to him and the heirs of his body, and a sufficient deputy to exercise the office dies leaving only daughters, the eldest for them; and if the eldest daughter shall not of course be countess, but marries, her husband has a right to the dignity is in suspense or abeyance execute the office solely. For which he till the king shall declare his pleasure ; cites the authority of the Duke of Buckfor he, being the fountain of honour, ingham's case. (Dyer, 285 b.) But this may confer it on which of them he doctrine was overruled nearly half a pleases.” And when he has conferred
century ago, when, upon the descent it upon one, if the issue of that one of the office of Great Chamberlain to become extinct, it will again be in two sisters, coheiresses of the Duke of abeyance, if there are descendants of Ancaster, one of whom was married, more than one sister remaining; but the House of Lords, after calling for upon the failure of issue of all the the opinions of the twelve judges, desisters except one, the descendant of termined,conformably thereto, that the that one, as sole heir, may assume the office belonged to both sisters; that dignity as of right. (See 1 Inst. 165 a, the husband of the eldest was not of and 165 b, with Mr. Hargrave's notes right entitled to execute it; and that thereto.) In the passage cited, Lord both sisters might execute it by deCoke intimates, that there is a dis- puty, such deputy being of a degree tinction as to this matter between a not inferior to a knight, and approved title of nobility and an office of ho- of by the king. (Journ. Dom. Proc. nour; and that if the holder of an May 25, 1781.)
the rest of the lands descending (h). This mode of division was known in the law of the Lombards (i); which directs the woman so preferred in marriage, and claiming her share of the inheritance, mittere in confusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotch-pot (k) (20): which term I shall explain in the very words of Littleton (1): " it seemeth that this word hotch“ pot, is in English a pudding; for in a pudding is not com
monly put one thing alone, but one thing with other things
together.” By this housewifely metaphor our ancestors meant to inform us (m), that the lands, both those given in frankmarriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice of the donee in frankmarriage: and if she did not choose to put her lands into hotch-pot, she was presumed to be sufficiently *provided for, and the rest of the inheri- [ * 191 ] tance was divided among her other sisters. The law of hotch-pot took place then only, when the other lands de
(h) Bracton, l. 2, c. 34; Litt. s. 266 to 273.
(i) 1. 2, t. 14, c. 15.
(k) Britton, c. 72.
(20) The fifth section of the statute v. Pratt, Fitz-Gib. 84; Anonym. 2 of distributions (22 & 23 Car. II. Freem. 190.) c. 10,) after providing, that, before a It seems that, where any child takes final distribution of an intestate's under his father's will part of the teseffects takes place, any advancement tator's personal estate, and there is an made by him in his life-time to his intestacy as to the residue, the child children, claiming distribution, shall can take a share of that, without be brought into hotch-pot; makes a bringing into hotch-pot what he distinction in favour of the heir, who took under the will ; notwithstanding is to take an equal part in the distri. it is now understood to be settled law, bution with the rest of the intestate's that what is taken under a will must children, without any consideration of be deemed an advancement in the the value of any land which he hath life-time of the testator: (Onslow v. by descent, or otherwise, from the Michell, 18 Ves. 494 ; Leake v. Leake, intestate. But it is only as to real 10 Ves. 489; Goolding v. Haverestate that the heir at law is exempted field, M'Clel. 357 :) but Lord Eldon from bringing into hotch-pot any thought, that, to such advancements, advances made to him in his father's the provision of the statute as to life-time: if the heir have received bringing into hotch-pot did not apply. any advancement by money, or per- (Twisden v. Twisden, 9 Ves. 426.) sonal estate of any kind, that is to be This note is extracted from 1 Horeckoned as part of his share. (Pratt venden's Supp. to Ves. jun. Rep. 558.
scending from the ancestor were fee-simple; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given into hotchpot (n). And the reason is, because lands descending in feesimple are distributed by the policy of law, for the maintenance of all the daughters; and, if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more: but lands descending in tail are not distributed by the operation of the law, but by the designation of the giver, per formam doni : it matters not therefore how unequal this distribution may be. Also no lands, but such as are given in frankmarriage, shall be brought into hotch-pot; for no others are looked upon in law as given for the advancement of the woman, or
of marriage portion (0). And, therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotch-pot, had not this method of division been revived and copied by the statute for distribution of personal estates, which we shall hereafter consider
at large (21). The modes by
The estate in coparcenary may be dissolved, either by parinayo pardessory. tition, which disunites the possession ; by alienation of one
parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.
IV. Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously (p). This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For if there be two tenants in common of lands, one may hold his part in
fee-simple, the other in tail, or for life; so that there is no [ * 192 ] *necessary unity of interest : one may hold by descent, the
other by purchase; or the one by purchase from A., the other by purchase from B.; so that there is no unity of title: one's estate may have been vested fifty years, the other's
which an estate
IV. Of tenants in common.
(n) Litt. s. 274.
(0) Ibid. 275.
(P) Ibid. 292.
(21) See post, chap. 32, pp. 515, 517, 519.