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 5 unity, have not an entirety, of interest. They are properly entitled each to the whole of a distinct moiety; 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 continuo in a course of descent and united in possession, so long are the tenants 5therein, whether male or female, called parceners. But if [189] 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† b Parceners are so called, saith Littleton, because they may be constrained to make partition. And he mentions many methods of making it; four of which are by consent, 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, 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 senior y Co. Litt. 164. 174. z Ibid. 163, 164. a Litt. 309. b 241. c243 to 264. 5 Previously, "a." 5 Previously, "thereof." The ity of age; or otherwise, as shall be agreed. 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. 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 of partition against the others; whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impaneled, and assign to each of the parceners her part in severalty. But there are some things [190] which are in their nature impartible. The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided; but the elder 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.! d Co. Litt. 166. 3 Rep. 22. e By statute 8 & 9 W. III. c. 93.9 an easier method of carrying on the proceedings on a writ of partition, of lands held either in joint tenancy, parcenary, or common, than was used at the common law, is chalked out and provided. 9 Ninth edition reads, "31." f Co. Litt. 164, 165. 4 Previously, "But this privilege of seniority is then." 4 The second and third editions omit, but the first is as in the text. There is yet another consideration attending the estate in coparcenary; that if one of the daughters 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 ) 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 rest of the lands descending. This mode of division was known in the law of the Lombards; which direct 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 hotchpot: which term I shall explain in the very words of Littleton: "it seemeth that this word hotchpot, 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, 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 in hotchpot, she was presumed to be sufficiently [191] provided for, and the rest of the inheritance was divided among her other sisters. The law of hotchpot took place then only, when the other lands descending from the ancestor were fee-simple; for, if they descended in tail, the donee in frankmarriage was g See pag. 115. 1 267. h Bracton. l. 2. c. 34. Litt. § 266. 273. m Litt. 268. i l. 2. t. 14. c. 15. k Britton. c. 72. 4 Previously, "general." 9 Ninth edition reads "into." *-* Quoted, 2 R. I. 250. Cited, 4 Gratt. 390. entitled to her share, without bringing her lands so given into hotchpot." And the reason is, because lands descending in fee-simple 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 law, but by the designation of the giver, per forman 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 woman, or by way of marriage-portion. And therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotchpot, 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.* The estate in coparcenary may be dissolved, either by partition, 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. 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, || n Litt. 274. o Ibid. 275. p Ibid. 292, 9 Ninth edition inserts, "the." 4 Previously, "so properly as." *Cited, 2 R. I. 250; 7 Conn. 5. Quoted, 5 Conn. 365; 52 Miss. 794; 17 Ala. 362; 52 Am. Dec. 179; 52 Miss. 179; 42 Pa. St. 100; 8 Miss. 431. + Quoted, 12 Allen, 36. Cited, 38 Vt. 267; 72 Ala, 399; 106 Ill, 58. 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 but yesterday; so there is no unity of time. The only unity there is, is that of possession: and for this Littleton gives the true reason, because no man can certainly tell which part is his own; otherwise even this would be soon destroyed.* Tenancy in common may be created, either by the destruction of the two other estates, in joint tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest: as, if one of two joint tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint tenant are tenants in common: for they now have several titles, the other joint tenant by the original grant, the alienee by the new alienation; and they also have several interests, the former joint tenant in fee-simple, the alienee for his own life only. So, if one joint tenant gives his part to A in tail, and the other gives his to B in tail, the donees are tenants in common, as holding by different titles, and conveyances. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common; because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint tenants of the life-estate, but q Litt. 293. r Ibid. 295. s Ibid. 309. 4 Previously, "soon be." * Cited, 66 N. Y. 41; 47 N. H. 227; 121 Mass. 268; 5 Conn. 365. |