« EdellinenJatka »
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 (t); 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 (9) Litt. s. 241, 242.
(1) Ibid. 164. (r) Ibid. s. 265.
(u) Ibid. 188. 243. ($) Co. Litt. 163.
(w) 2 Inst. 403.
(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 pri. ever, 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 (6), because they of the methods may be constrained to make partition. And he mentions lition of estates
of many methods of making it (c); four of which are by con- held in co-par
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 chuse some friend to make partition for them, and then the sisters shall chuse 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 chuse 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) t. 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 chuse 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 (16) 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 [ *190 ] her part in severalty (e). But there are some things which
are in their nature impartible (17). The mansion-house,
(d) Co. Litt. 166. 3 Rep. 22. lands held either in joint-tenancy, par
(e) By statute 8 & 9 W. III. c. 31, cenary, or common, than was used at an easier method of carrying on the the common law, is chalked out and proceedings on a writ of partition, of provided.
(16) See ante, note (7) to this chap- of a court of equity. ter, that the proceeding by writ is now (17) A title of honour, for instance. almost entirely superseded by the more Thus, our author tells us, (in chap. 14, convenient process of a commission out p. 216), “if a man holds an earldom
+ Mr. Christain observes, that "it determined in favour of such a grantee has been doubted whether the grantee in 1 Ves. 340." [See a summary of of the eldest sister shall have the first this subject stated in chap. 30, dial. 2, and sole presentation after death. Harg. of the Doctor and Student.--Ed.). Co. Litt. 166. But it was expressly
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 Where one of
the daughters coparcenary: that if one of the daughters has had an estate given with her in frankmarriage by her ancestor, (which we given with her
in frankmarmay remember was a species of estates-tail, freely given by a riage, by the relation for advancement of his kinswoman in marriage (g),) same ancestor in this case, if lands descend from the same ancestor to her lands descend and her sisters in fee-simple, she or her heirs shall have no to her and her
sisters in coshare of them, unless they will agree to divide the lands so parcenary. given in frankmarriage in equal proportion with the rest of (f) Co. Litt. 164, 165.
(8) See pag. 115.
has an estate
from whom the
to him and the heirs of his body, and ther of them, they may jointly make a dies leaving only daughters, the eldest sufficient deputy to exercise the office shall not of course be countess, but the for them; and if the eldest daughter dignity is in suspence or abeyance till marries, her husband has a right to the king shall declare his pleasure; for execute the office solely. For which he, being the fountain of honour, may he cites the authority of the Duke of confer it on which of them he pleases." Buckingham's case, (Dyer, 285 b). But And when he has conferred it upon this doctrine was overruled nearly half a one, if the issue of that one become century ago, when, upon the descent of extinct, it will again be in abeyance, if the office of Great Chamberlain to two there are descendants of more than one sisters, coheiresses of the duke of Ansister remaining; but upon the failure caster, one of whom was married, the of issue of all the sisters except one, the House of Lords, after calling for the descendant of that one, as sole heir, opinions of the twelve Judges, determay assume the dignity as of right, mined, conformably thereto, that the (see 1 Inst. 165 a and 165 b, with Mr. office belonged to both sisters; that the Hargrave's notes thereto). In the pas- husband of the eldest was not of right sage cited, Lord Coke intimates, that entitled to execute it; and that both there is a distinction as to this matter sisters might execute it by deputy, between a title of nobility and an office such deputy being of a degree not inof honour; and that if the holder of anferior to a knight, and approved of by office of honour dies, having issue two the king. (Journ. Dom. Proc. May 25, daughters, before the marriage of ei- 1781).
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 usitis denominated bringing those landsinto hotch-pot(k) (18): which term I shall explain in the very words of Littleton (1): “ it seemeth that this word hotch-pot, is in English a pud“ ding; 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
(18) The fifth section of the statute Anonym. 2 Freem. 190). of distributions (22 & 23 Car. II. c. 10), It seems that, where any child takes after providing, that, before a final dis- under his father's will part of the testribution of an intestate's effects takes tator's personal estate, and there is an place, any advancement made by him intestacy as to the residue, the child can in his life-time to his children, claim- take a share of that, without bringing ing distribution, shall be brought into into hotch-pot what he took under the hotch-pot; makes a distinction in fa- will; notwithstanding, it is now undervour of the heir, who is to take an stood to be settled law, that what is equal part in the distribution with the taken under a will must be deemed an rest of the intestate's children, without advancement in the life-time of the tes. any consideration of the value of any tator: (Onslow v. Michell, 18 Ves. 494. land which he hath by descent, or Leake v. Leake, 10 Ves. 489. Goold. otherwise, from the intestate. But it is ing v. Haverfield, M'Clel. 357): but only as to real estate that the heir at Lord Eldon thought, that to such adlaw is exempted from bringing into vancements, the provision of the stahotch-pot any advances made to him tute as to bringing into hotch-pot did in his father's life-time: if the heir not apply. (Twisden v. Twisden, 9 have received any advancement by Ves. 426). money, or personal estate of any kind, This note is extracted from 1 Ho. that is to be reckoned as part of his venden's Supp. to Ves. jun, Rep. 558. share. (Pratt v. Pratt, Fitz-Gib. 84,