(37 b) An executory devise, page 172.

Mr. Fearne objects to this definition as too broad, because it covers also contingent remainders given by will, and would substitute for it: "Such a limitation of a future estate or interest in lands or chattels (though in the case of chattels personal it is more properly an executory bequest), as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law." (Civil Remainders, p. 368; Coleman's Epitome, p. 75.)

But the American student must remember that in many states by statute such interests may be created by deed as well as will, and should properly be terined "executory estates" rather than executory devises. In other respects Blackstone's description applies to them.

CHAPTER THE TWELFTH.

OF ESTATES IN SEVERALTY, JOINT TENANCY, COPARCENARY, AND COMMON.

We come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways [see note 38, page 314]; in severalty, in joint tenancy, in coparcenary, and in common.

I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants.

[180] II. * An estate in joint tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants an estate is called an estate in joint tenancy, and sometimes an estate in jointure, which word as well as the other signifies 5an 5 union or conjunction of interest;* though in common speech the **Quoted, 14 Wend. 336.

a Litt. 277.

5 Prior editions read "a."

term, jointure, is now usually confined to that joint estate, which by virtue of the statute 27 Hen. VIII. c. 10. is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower.b

In unfolding this title, and the two remaining ones in the present chapter, we will first inquire, how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed.

1.

The creation of an estate in joint tenancy depends on the wording of the deed or devise, by which he tenants claim title; for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law.* Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A and B and their heirs, this makes them immediately joint tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For, †

2. The properties of a joint estate are derived from it's unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession: or, in other words, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.?

[181] First, they must have one and the same interest. One joint tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other 8 Previously spelt "enquire." **Quoted, 6 Cush. 160; 3 McCord, 155; 6 Heisk. 286.

b See pag. 137.

† Cited, 5 Conn. 365, substituting tenants in common for joint tenants. - Quoted, 1 Const. S. C. 52; 38 Vt. 267. ?Cited, 47 N. H. 227; 90 Am. Dec. 573,

to a different; one cannot be tenant for life, and the other for years: one cannot be tenant in fee, and the other in tail. But, if land be limited to A and B for their lives, this makes them joint tenants of the freehold; if to A and B and their heirs, it makes them joint tenants of the inheritance. If land be granted to A and B for their lives, and to the heirs of A; here A and B are joint tenants of the freehold during their respective lives, and A has the remainder of the fee in severalty: or, if land be given to A and B, and the heirs of the body of A; here both have a joint estate for life, and A hath a several remainder in tail. Secondly, joint tenants must also have an unity of title: their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the saine disseisin. Joint tenancy cannot arise by descent or act of law; but merely by purchase, or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good, and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be an unity of time: their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A and B; or a remainder in fee to A and B after a particular estate; in either case A and B are joint tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A and B; and during the continuance of the particular estate A dies, which vests the remainder of one moiety in his heir; and then B dies, whereby the other moiety becomes vested in the heir of B: now A's heir and B's heir are not joint tenants of this remainder, but tenants in common; for one moiety

c Co. Litt. 188.

d Litt. 277.

e Ibid. 285.

f Ibid. 278,

vested at one time, and the other moiety vested at another. [182] Yet, where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for term of their lives, and he afterwards married; in this case it seems to have been held that the husband and wife had a joint estate, though vested at different times: because the use of the wife's estate was in abeyance and dormant till the intermarriage ; and, being then awakened, had relation back, and took effect from the original time of creation. Lastly, in joint tenancy, there must be an unity of possession. *Joint tenants are said to be seised per my et per tout, by the half or moiety, and by all [see note 39, page 315]; that is, they each of them have the entire possession, as well of every parcel as of the whole. They have not, one of them a seisin of one half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety."† g Co. Litt. 188.

h Dyer. 340. 1 Rep. 101.

i Litt. 288. 5 Rep. 10.

k Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se. Bract. l. 5. tr. 5. c. 26.

9 Ninth edition adds: "And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.t [t Litt. 665. Co. Litt. 187. Bro. Abr. t. cui in vita, 8. 2 Vern. 120. 2 Lev. 39.1"5

Quoted, 26 Pa. St. 401.

1- Quoted, 16 Johns. 115; 1 Cowen, 96; 6 Wils. & S. 322; 40 Am. Dec. 567; 49 Md. 411; 10 Ill. 124; 76 Ill. 540; 1 Munf. 114; 4 Am. Dec. 538; 1 Munf. 392; 7 Yerg. 319; 27 Am. Dec. 511.

Cited, 15 Wend. 617; 47 N. H. 227; 4 Har. (N. J.) 154; 1 McCart. 40; 2 McCart. 381; 7 Yerg. 319; 27 Am. Dec. 510; 4 Sneed, 692; 70 Am. Dec. 271; 24 Miss. 36: 57 Am. Dec. 159; 50 Miss. 535; 64 Ga. 335; 36 Ala. 734; 6 Fla. 476; 37 Ind. 398; 21 Ind. 40, 41; 57 Ind. 414; 12 Ala. 48; 16 Vt. 312; 47 Ill. 427; 95 Am. Dec. 503; 14 Mich. 93; 90 Am, Dec. 226; 58 Md. 21; 87 N. C. 334.

**Quoted, 3 Rand. 182. Cited, 15 Ala. 174.

+ Cited, 26 Pa. St. 399; 2 McCart. 381; 65 Cal. 452; 13 N. Y. 322; 64 Am. Dec. 558; 72 Ala. 399.