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the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other (e)) is already vested (f). 4. It may also be destroyed by destroying the unity of interest. And therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure (g); though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are not separate estates (which is requisite in order to a merger), but branches of one entire estate (h). In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure (i) (12): for it destroys the unity both of title and of interest. And whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it (k). Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship (): and, if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining

(e) Jus accrescendi præfertur ultima voluntati. Co. Litt. 185.

() Litt. s. 287.
(8) Cro. Eliz. 470.
(h) 2 Rep. 60. Co. Litt. 182.

(i) Litt. s. 302, 303.

(k) Nihil de re accrescit ei, qui nihil in re quando jus accresceret habet. Co. Litt. 188.

(1) Litt. s. 294.

(12) In the case of Gale v. Gale, (2 joint-tenants. Here certainly is a seCox, 155), Chief Baron Macdonald verance by the lease; but if the lessee said, “there are instances to be found, dies in the life-time of both the jointwhere an estate that has been severed tenants, the estate re-unites.” And in may be reunited; as in the case put in Mr. Preston's edition of Watkin's Co. Litt. (193 a), of there being two Princip. of Convey. (p. 84), it is said, joint-tenants in fee, and one leasing for that a grant for life, or in tail, by a the term of the lessee's life, which joint-tenant in fee, only suspends the lessee dies in the life-time of both the joint-tenancy,

parts are still held in jointure (m); for they still preserve their original constituent unities. But when, by any act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensable properties, a sameness of interest, and undivided possession, a title vesting at one and

the same time, and by one and the same act or grant; the [ *187 ]

jointure is instantly dissolved. The conse

*In general, it is advantageous for the joint-tenants to disquences of dis- solve the jointure (13); since thereby the right of survivorsolving the joint estate.

(m) Litt. s. 304.

(13) And the leaning of courts, in without any other words or circummodern times, is in favour of tenancy stances which, either expressly or by in common, rather than joint-tenancy, implication, create a severance; there, where that question is open to con- no room is left for construction, and struction. (Rigden v. Vallier, 2 Ves. the devisees, or legatees, must take as sen. 258, see post, p. 193). Thus, when joint-tenants. (Whitmore v. Trelawney, a purchase agreement has been entered 6 Ves. 134. Morley v. Bird, 3 Ves. into by two purchasers, in terms primá 631. Davenport v. Hanbury, 3 Ves. facie joint, but there are circumstances 260. Perry v. Woods, 3 Ves. 206. from which it can be collected, that a Swaine v. Burton, 15 Ves. 371. Crooke joint-tenancy was not in contemplation; v. De Vandes, 9 Ves. 204). On the a court of equity will not execute the other hand, when a will contains words agreement by directing a conveyance importing the testator's intention, that in joint-tenancy; the intention, how the interests he has devised shall be ever, to make the purchase as tenants taken by the objects of his bounty as in common will not be assumed as of tenants in common; but, in the same necessity. (Aveling v. Knipe, 19 Ves. will, he has used other words, which, 444).

in their ordinary construction, would If two persons advance money on a be inconsistent with that intention; mortgage, though the mortgage deed those inconsistent words will, if posmay be joint, yet the interest will not sible, be moulded so as not to debe subject to survivorship, when it stroy the effect of the words importing clearly appears the intention of the a tenancy in common. lenders was, that each should receive Great doubts have been entertained his own money again. (Petty v. Sty- by judges, both at law and in equity, ward, 1 Cha. Rep. 58; and see ante, as to words creating a joint-tenancy, or note (7).

a tenancy in common; (Fisher v. Wigg, But, where a devise, or bequest, is 1 P. Wms. 14); but it is settled, that made in terms creating a joint-tenancy, in equity, at all events, the words

ship is taken away, and each may transmit his own part to his own heirs. Sometimes however it is disadvantageous to dissolve the joint-estate (14): as if there be joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and, on the death of either, the reversioner shall enter on his moiety (n). And therefore, if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture (o): for, in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; and then he grants the same land for the life of another; which grant by a tenant for his own life merely, is a forfeiture of his estate (p): for it is creating an estate which may by possibility last longer than that which he is legally entitled to.

III. An estate held in coparcenary is where lands of in- jii. Of estates heritance descend from the ancestor to two or more persons.

in co-parcenary. It arises either by common law or particular custom. By common law: as where a person seised in fee-simple, or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they shall all inherit, as will be more fully shewn, when we treat of descents hereafter; and these coheirs are then called coparceners; or, for brevity, parceners

(n) 1 Jones, 55.

(0) 4 Leon. 237.

(p) Co. Litt. 252.

“ equally to be divided, equally, among, (14) So, there are cases in which a
between, respectively, share and share joint form of gift may be the only, or
alike,” create a tenancy in common. at any rate the best, mode of causing a
(Perry v. Woods, 3 Ves. 206. Morley, bequest to go in the course intended by
v. Bird, 3 Ves. 631. Jenour v. Jenour, the testator; as, for instance, where a
10 Ves. 569. Lashbrook v. Cock, 2 bequest is made to infant natural chil-
Meriv. 70. Rigden v. Vallier, 2 Ves. dren, who, in the event of the death of
sen. 256. Heathe v. Heathe, 2 Atk. any, could not succeed to each other.
122. Denn v. Gaskin, Cowp. 660. (Stuart v. Bruce, 3 Ves. 363).
And see post, p. 193).

only (9). Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c. (r). And, in either of these cases, all the parceners put together make but one heir; and

have but one estate among them (s). Of the nature *The properties of parceners are in some respects like and properties of these estates. those of joint-tenants; they having the same unities of inter[ *188 ] est, title, and possession. They may sue and be sued joint

ly for matters relating to their own lands ((); and the entry of one of them shall in some cases enure as the entry of them all (u) (15). They cannot have an action of trespass against 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

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(15) “When one coparcener enters informs us, that “after the parcegenerally, and takes the profits, this ners be actually seised, the taking shall be accounted in law the entry of of the whole profits, or any claim, both, and no divesting of the moiety by one, cannot put the other out of of the sister.” (1 Instit. 243 b). But possession, without an actual disseiLord Coke, in the same place, says, sin." But, if one coparcener enters, "when one coparcener doth specially claiming the whole, and makes a feoffenter, claiming the whole land, and ment in fee, and takes back an estate taking the whole profits, she gains the to herself, and her heirs, and hath ismoiety of her sister by abatement, sue, and dies seised, this descent shall though her dying seised shall not take take away the entry of the other sisaway the entry of her sister.” How- ter; because, by the feoffment, the priever, in Smales v. Dale, (Hob. 120), vity of the coparcenary was destroyed. it was held, that one coparcener can- (1 Inst. 243 b; and see our author's not be disseised by the other with- argument, as counsel, together with out actual ouster, and that claim will the judgment of the court, in the case not alter the possession. And (in 1 of Davenport v. Tyrrel, 1 W. Bl. 678). Instit. 373, 374,) Lord Coke himself

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

But if *the possession be once severed by partition, [ *189 ] 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).

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- held in co-parsent, 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 chuse some friend to make partition for them, and then the sisters shall chuse each of them her

ners.

cenary.

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