ance 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 seized 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 shown when we treat of descents hereafter; and these coheirs are then called coparceners; or, for brevity, parceners only.q* Parceners by particu- Parceners lar custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c. either of these cases," all the parceners put together make but one heir, and have but one estate among them.s1o And, in by custom. of. The properties of parceners are in some respects like those [188] of joint-tenants; they having the same unities of interest, title, Properties 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." They can not 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 by purchase. Therefore, if two sisters purchase lands, to hold to them and their heirs, they are not parceners, but joint-tenants; and hence it likewise follows that no lands. a Litt., 241, 242. Ibid., § 265. Co. Litt., 163. t Ibid., 164. (18) A very subtle distinction, however, is taken between coparcenary at common law and a customary partible descent. "Well said Littleton, by the custom,' for sons are parceners in respect of the custom of the fee or inheritance, and not in respect of their persons, as daughters and sisters, &c., be. Et sunt participes quasi partem capientes, &c., ratione ipsius rei quæ partibilis est, et non ratione personarum quæ non sunt quasi unus hæres et unum cor u Ibid., 188, 243. pus, sed diversi hæredes, ubi tenemen- (19) Semble, therefore, that coparce- In New York, the law no longer recognizes such an estate as that of coparcenary, at least as it respects the daughters and sisters of the person dying seized. By the Statute of Descents, the children of a person dying seized of land become entitled to the inheritance in equal parts, as tenants in common, the statute making no distinction between male and female; and the law is the same as to sisters. As estates descend in every state to all the children equally (says Chancellor Kent), there is no substantial difference left between coparceners and tenants in common, and the technical distinction between coparcenary and estates in common may be considered as essentially extinguished in the United States.—(4 Kent's Comm., 366.) Unity of time not essential to 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 coparcenary. 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; 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 a unity, have not an entirety of interest." They are properly entitled each to the whole of a distinct moiety;2 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 fe[189] male, called parceners. But if the possession be once severed by partition, they are no longer parceners, but tenants in sev eralty; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but Partition. in common.a Parceners are so called, saith Littleton,b 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 is, 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 seniority of age; or otherwise, as shall be agreed. The privilege of seniority is in this case personal; for if the eldest sister be b § 241. C § 243-264. y Co. Litt., 164, 174. a Litt., § 309. (20) 5 B. & Ad., 575; 2 Nev. & M., fected by conveyance, in the same man 508. (21) Coparceners may convey to each other, both by feoffment and by release, because their seizin to some intents is joint, and to some several. (Co. Litt., 163, b, 200, b.) Whereas joint-tenants can release to, but not enfeoff each other, because the freehold is joint. (Ibid.) And one tenant in common may enfeoff his companion, but can not release to him, because the freehold is several. (Ibid.)-[CHITTY.] Such partitions are now usually made either by mutual consent and conveyances, or by means of a bill in Chancery, the partition under which must be per ner as partitions between joint-tenants. Parceners of a copyhold could not make partition without the sanction of the lord. (P. 41 Eliz., B. R. Fuller, Hal. MSS.; 11 Sim., 315. But see 2 Watk., Copyh., 194; and, now, stat. 4 & 5 Vict., c. 35, s. 85.) (22) Before the Statute of Frauds, coparceners might have partitioned their inheritance by parol, even where it was held in reversion. (Litt., s. 250; Co. Litt., 169, a.) And a rent charge might have been granted to one parcener, out of the allotment of the other, by mere parol. (Litt., s. 252.) But that statute has made a writing necessary. dead, her issue shall not choose first, but the next sister. But, if an advowson descend in coparcenary, and the sisters can not agree in the presentation, the eldest and her issue, nay, her husband, or her assigns, shall present alone, before the younger.da 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.e" But there are [190] some things 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 eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance; or, if that can not 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 Hotchpot coparcenary: that, if one of the daughters has had an estate given with her in frank-marriage by her ancestor (which, we may remember, was a species of estates-tail, freely given by a relation for advancement of his kins woman in marriages), 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 frank-marriage 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 con d Co. Litt., 166. 3 Rep., 22. By statute 8 & 9 W. III., c. 31, 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 com (23) It has been doubted whether the grantee of the eldest sister shall have the first and sole presentation after death. (Harg., Co. Litt., 266.) But it was expressly determined in favor of such a grantee in 1 Ves. Sen., 340.)-[CHRISTVOL. II.-P mon law, is chalked out and provid- f Co. Litt., 164, 165. h Bracton, 1. 2, c. 34. Litt., § 266- 273. IAN.] (See Burn's Ecclesiastical Law, (24) The proceeding at common law fusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotchpot;k 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 usm that the lands, both those given in frank-marriage 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 frank-marriage; and if she did not choose to put her lands into hotchpot, she [191] was presumed to be sufficiently 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 frank-marriage was 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 the law, but by the designation of the giver, per formam doni; it matters not, therefore, how unequal this distribution may be. Also, no lands but such as are given in frank-marriage shall be brought into hotchpot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage portion. And, therefore, as gifts in frank-marriage 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. How disColved. 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. Britton, c. 72. 1 § 267. m Litt., § 268. (25) A partition effected by a common law conveyance to a stranger, to the use of the parceners in equal shares in severalty, does not alter the course of descent; but if the parceners had taken by descent from their mother, each share would, after such partition, descend to the heirs ex parte maternâ. (5 T. R., 107, n.; 5 Ad. & El., 839; Com. Dig., " Ibid., 274. Parceners, (C. 15).) It would have been otherwise if the conveyance had been to a stranger to his own use, and he had subsequently reconveyed the several shares to the respective parties. And this is now always the proper course to pursue on a partition between coparceners, for a reason mentioned infra, p. 240, n. in common. IV. Tenants in common are such as hold by several and dis- IV. Tenancy tinct titles, but by unity of possession; because none knoweth his own severalty, and, therefore, they all occupy promiscuously.p* 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, one may hold his part in fee-simple, the other in tail, or for life; so that there is no necessary unity of interest: one [192] 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. 26 ted. Tenancy in common may be created either by the destruc- How creation 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 jointtenant 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 they shall have several inheritances;" because they can not possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten ;t and in this, and the like cases, (26) A third way is by conveyance of under the head of express limitation, bean undivided share; as, if A., tenant of longs to this division. four acres in Dale, convey one acre of his estate in Dale to B., A. and B. thereupon become tenants in common of the estate, in the proportion of three to one. One of the examples given in the text, (27) And the same is true of a limitation to two men, or two women, and their heirs generally. (4 Mee. & W., 229.) *See ante, p. 180, n. *. |