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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 (ƒ). 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 mákes 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

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[ *187 ]

The conse

quences of dis

solving the joint estate.

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 jointure is instantly dissolved.

*In general, it is advantageous for the joint-tenants to dissolve the jointure (13); since thereby the right of survivor

(m) Litt. s. 304.

(13) And the leaning of courts, in modern times, is in favour of tenancy in common, rather than joint-tenancy, where that question is open to construction. (Rigden v. Vallier, 2 Ves. sen. 258, see post, p. 193). Thus, when a purchase agreement has been entered into by two purchasers, in terms primá facie joint, but there are circumstances from which it can be collected, that a joint-tenancy was not in contemplation; a court of equity will not execute the agreement by directing a conveyance in joint-tenancy; the intention, how ever, to make the purchase as tenants in common will not be assumed as of necessity. (Aveling v. Knipe, 19 Ves. 444).

If two persons advance money on a mortgage, though the mortgage deed may be joint, yet the interest will not be subject to survivorship, when it clearly appears the intention of the lenders was, that each should receive his own money again. (Petty v. Styward, 1 Cha. Rep. 58; and see ante, note (7).

But, where a devise, or bequest, is made in terms creating a joint-tenancy,

without any other words or circumstances which, either expressly or by implication, create a severance; there, no room is left for construction, and the devisees, or legatees, must take as joint-tenants. (Whitmore v. Trelawney, 6 Ves. 134. Morley v. Bird, 3 Ves. 631. Davenport v. Hanbury, 3 Ves. 260. Perry v. Woods, 3 Ves. 206. Swaine v. Burton, 15 Ves. 371. Crooke v. De Vandes, 9 Ves. 204). On the other hand, when a will contains words importing the testator's intention, that the interests he has devised shall be taken by the objects of his bounty as tenants in common; but, in the same will, he has used other words, which, in their ordinary construction, would be inconsistent with that intention; those inconsistent words will, if possible, be moulded so as not to destroy the effect of the words importing a tenancy in common.

Great doubts have been entertained by judges, both at law and in equity, as to words creating a joint-tenancy, or a tenancy in common; (Fisher v. Wigg, 1 P. Wms. 14); but it is settled, that 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- III. Of estates heritance descend from the ancestor to two or more persons. 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.

(o) 4 Leon. 237.

(p) Co. Litt. 252.

in co-parcenary.

"equally to be divided, equally, among, between, respectively, share and share alike," create a tenancy in common. (Perry v. Woods, 3 Ves. 206. Morley, v. Bird, 3 Ves. 631. Jenour v. Jenour, 10 Ves. 569. Lashbrook v. Cock, 2 Meriv. 70. Rigden v. Vallier, 2 Ves. sen. 256. Heathe v. Heathe, 2 Atk. 122. Denn v. Gaskin, Cowp. 660. And see post, p. 193).

(14) So, there are cases in which a joint form of gift may be the only, or at any rate the best, mode of causing a bequest to go in the course intended by the testator; as, for instance, where a bequest is made to infant natural children, who, in the event of the death of any, could not succeed to each other. (Stuart v. Bruce, 3 Ves. 363).

Of the nature

of these estates.

only (q). 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).

*The properties of parceners are in some respects like and properties, those of joint-tenants; they having the same unities of inter[188] est, title, and possession. They may sue and be sued jointly 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

(q) Litt. s. 241, 242.

(r) Ibid. s. 265.

(s) Co. Litt. 163.

(15) "When one coparcener enters generally, and takes the profits, this shall be accounted in law the entry of both, and no divesting of the moiety of the sister." (1 Instit. 243 b). But Lord Coke, in the same place, says, "when one coparcener doth specially enter, claiming the whole land, and taking the whole profits, she gains the moiety of her sister by abatement, though her dying seised shall not take away the entry of her sister." However, in Smales v. Dale, (Hob. 120), it was held, that one coparcener cannot be disseised by the other without actual ouster, and that claim will not alter the possession. And (in 1 Instit. 373, 374,) Lord Coke himself

(t) Ibid. 164.

(u) Ibid. 188. 243.
(w) 2 Inst. 403.

informs us, that "after the parceners be actually seised, the taking of the whole profits, or any claim, by one, cannot put the other out of possession, without an actual disseisin." But, if one coparcener enters, claiming the whole, and makes a feoffment in fee, and takes back an estate to herself, and her heirs, and hath issue, and dies seised, this descent shall take away the entry of the other sister; because, by the feoffment, the privity of the coparcenary was destroyed. (1 Inst. 243 b; and see our author's argument, as counsel, together with the judgment of the court, in the case of Davenport v. Tyrrel, 1 W. Bl. 678).

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 parceners. 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 of making parmay 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

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