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 (2); 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 one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common (a). (w) 2 Inst. 403. (x) Litt. s. 254. (y) Co. Litt. 164, 174. Though Lord Coke, in the same place, (z) Ibid. 163, 164. shall not take away the entry of her sister." But the law in this last respect has been altered; see ante, the note to p. 182, and post, the note to p. 194. of making parheld in copar Parceners are so called, saith Littleton (b), because they of the methods may be constrained to make partition. And he mentions tition of estates many 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] (b) s. 241. (c) s. 243 to 264. (d) Co. Litt. 166; 3 Rep. 22. (17) Mr. Christian observes, that "it has been doubted whether the grantee of the eldest sister shall have the first and sole presentation after death. Harg. Co. Litt. 166. But it was expressly determined in favour of such a grantee in 1 Ves. 340." [See a summary of this subject stated an easier method of carrying on the in chap. 30, dial. 2, of the Doctor (18) See ante, p. 185, note, that Where one of the daughters has an estate given with her in frankmarriage, by the same ancestor from whom the lands descend to her and her sisters in coparcenary. 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 (ƒ). 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 may remember was a species of estates-tail, freely given by a relation for advancement of his kinswoman in marriage (g),) in this case, if lands descend from the same ancestor 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 the common law, is chalked out and (f) Co. Litt. 164, 165. (19) A title of honour, for instance. Thus, our author tells us, (in chap. 14, p. 216,) "if a man holds an earldom to him and the heirs of his body, and dies leaving only daughters, the eldest shall not of course be countess, but the dignity is in suspense or abeyance till the king shall declare his pleasure; for he, being the fountain of honour, may confer it on which of them he pleases." And when he has conferred it upon one, if the issue of that one become extinct, it will again be in abeyance, if there are descendants of more than one sister remaining; but upon the failure of issue of all the sisters except one, the descendant of that one, as sole heir, may assume the dignity as of right. (See 1 Inst. 165 a, and 165 b, with Mr. Hargrave's notes thereto.) In the passage cited, Lord Coke intimates, that there is a distinction as to this matter between a title of nobility and an office of honour and that if the holder of an office of honour dies, having issue two daughters, before the marriage of either of them, they may jointly make a sufficient deputy to exercise the office for them; and if the eldest daughter marries, her husband has a right to execute the office solely. For which he cites the authority of the Duke of Buckingham's case. (Dyer, 285 b.) But this doctrine was overruled nearly half a century ago, when, upon the descent of the office of Great Chamberlain to two sisters, coheiresses of the Duke of Ancaster, one of whom was married, the House of Lords, after calling for the opinions of the twelve judges, determined, conformably thereto, that the office belonged to both sisters; that the husband of the eldest was not of right entitled to execute it; and that both sisters might execute it by deputy, such deputy being of a degree not inferior to a knight, and approved of by the king. (Journ. Dom. Proc. May 25, 1781.) 66 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 (7): "it seemeth that this word hotch"pot, is in English a pudding; for in a pudding is not commonly 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, 1. 2, c. 34; Litt. s. 266 to 273. (i) 1. 2, t. 14, c. 15. (20) The fifth section of the statute of distributions (22 & 23 Car. II. c. 10,) after providing, that, before a final distribution of an intestate's effects takes place, any advancement made by him in his life-time to his children, claiming distribution, shall be brought into hotch-pot; makes a distinction in favour of the heir, who is to take an equal part in the distribution with the rest of the intestate's children, without any consideration of the value of any land which he hath by descent, or otherwise, from the intestate. But it is only as to real estate that the heir at law is exempted from bringing into hotch-pot any advances made to him in his father's life-time if the heir have received any advancement by money, or personal estate of any kind, that is to be reckoned as part of his share. (Pratt (k) Britton, c. 72. (m) Litt. s. 268. v. Pratt, Fitz-Gib. 84; Anonym. 2 It seems that, where any child takes This note is extracted from 1 Hovenden's Supp. to Ves. jun. Rep. 558. The modes by which an estate ed. 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 by way of marriage portion (o). 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 estate in coparcenary may be dissolved, either by parin coparcenary tition, which disunites the possession; by alienation of one may be dissolvparcener, 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. Of tenants in common. 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 (n) Litt. s. 274. (0) Ibid. 275. (p) Ibid. 292. (21) See post, chap. 32, pp. 515, 517, 519. |