FROM the fame principle alfo arifes the remaining grand incident of joint eftates; viz. the doctrine of survivorship : by which when two or more perfons are feifed of a joint estate, of inheritance, for their own lives, or per auter vie, or are jointly poffefled of any chattel intereft, the entire tenancy upon the decease of any of them remains to the furvivors, and at length to the last survivor; and he shall be entitled to the whole eftate, whatever it be, whether an inheritance or a common freehold only, or even a less estate ". This is the natural and regular confequence of the union and entirety of their intereft. The interest of two joint-tenants is not only equal or fimilar, but also is one and the fame. [184] One has not originally a distinct moiety from the other; but, if by any fubfequent act (as by alienation or forfeiture of either) the interest becomes separate and diftinct, the jointtenancy inftantly ceafes. But, while it continues, each of two joint-tenants has a concurrent intereft in the whole; and therefore, on the death of his companion, the fole interest in the whole remains to the furvivor. For the intereft, which the furvivor originally had, is clearly not devested by the death of his companion; and no other perfon can now claim to have a joint eftate with him, for no one can now have an interest in the whole, accruing by the fame title, and taking effect at the fame time with his own; neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the furvivor of the right which he has in all, and every part. As therefore the furvivor's original interest in the whole ftill remains; and as no one can now be admitted, either jointly or feverally, to any share with him therein; it follows, that his own interest must now be entire and feveral, and that he fhall alone be entitled to the whole eftate (whatever it be) that was created by the original grant.

w Litt. § 280, 281.

is also the jurifdiction generally reforted to, in order to obtain a partition between joint-tenants, parcenors, and tenants in common, Com. Dig. Chanc. 3 V. 6. & 4 E. Mitf. 109.

P 3



[ocr errors]

THIS right of furvivorship is called by our ancient authors * the jus accrefcendi, because the right, upon the death of one joint-tenant, accumulates and increases to the furvivors; or, as they themselves exprefs it, "pars illa communis accrefcit fuperftitibus, de perfona in perfonam, ufque ad ultimam fuperftitem? And this jus accrefcendi ought to be mutual; which I apprehend to be one reafon why neither the king, nor any corporation, can be a joint-tenant with a private person. For here is no mutuality: the private perfon has not even the remoteft chance of being feised of the entirety, by benefit of furvivorship; for the king and the corporation can never die (3)

3. WE are, laftly, to inquire how an estate in jointtenancy may be fevered and deftroyed. And this may be done by destroying any of it's conftituent unities. 1. That of time, which refpects only the original commencement of the joint-eftate, cannot indeed, (being now paft) be affected by any subsequent tranfactions. But, 2. The joint-tenants' eftate may be destroyed, without any alienation, by merely difuniting their poffeffion. For joint-tenants being seised per my et per tout, every thing that tends to narrow that interest, fo that they fhall not be feifed throughout the whole, and

x Bracton. 1. 4. tr. 3. c. 9. § 3. Fleta. I. 3. c. 4.

[ocr errors]

y Co. Litt. 190. Finch. L. 83. z 2 Lev. 12.

(3) But lord Coke fays exprefsly, there may be joint-tenants, though there be not equal benefit of furvivorship; as if a man "let lands to A and B during the life of A; if B die, A fhall "have all by furvivorship; but if A die, B fhall have nothing." Co. Litt. 181. The mutuality of furvivorship does not therefore appear to be the reason why a corporation cannot be a joint-tenant with a private perfon; for two corporations cannot be joint-tenants together; but whenever a joint-eftate is granted to them, they take as tenants in common. Co. Litt. 190. But there is no furvivorship of a capital, or a stock in trade, among merchants and traders; for this would be ruinous to the family of the deceafed partner; and it is a legal maxim, jus accrefcendi inter mercatores pro beneficio commercii locum non habet, Co. Litt. 182. See p. 399. poft. throughout


throughout every part, is a feverance or deftruction of the jointure. And therefore, if two joint-tenants agree to part their lands, and hold them in feveralty, they are no longer joint-tenants; for they have now no joint-interest in the whole, but only a feveral intereft refpectively in the several parts. And for that reason also, the right of survivorship is by fuch feparation destroyed. By common law all the jointtenants might agree to make partition of the lands, but one of them could not compel the other fo to do: for, this being an eftate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united poffeflion without a fimilar univerfal confent. But now by the ftatutes 31 Hen. VIII. c. I. and 32 Hen. VIII. c. 32. joint-tenants, either of inheritances or other lefs eftates, are compellable by writ of partition to divide their lands. 3. The jointure may be destroyed by destroying the unity of title. As if one joint-tenant alienes and conveys his eftate to a third perfon: here the jointtenancy is fevered, and turned into tenancy in common; for the grantee and the remaining joint-tenant hold by different titles, (one derived from the original, the other from the fubfequent, grantor) though, till partition made, the unity of poffeffion continues. But a devife of one's fhare by will [186] is no severance of the jointure: for no teftament takes effect till after the death of the teftator, and by fuch death the right of the furvivor (which accrued at the original creation of the eftate, and has therefore a priority to the other ) is already vefted' (4). 4. It may also be deftroyed, by deftroying the unity

a Co. Litt. 188. 193.

b Litt. § 290.

Thus, by the civil law, nemo invitus compellitur ad communionem. (Ff. 12. 6. 26. §4.) And again; fi non omnes qui rem communem habent, fed certi ex his,

dividere defiderant; boc judicium inter cos
accipi poteft. (Ff. 10. 3, 8.)
d Litt. § 292.

e Jus accrefcendi praefertur ultimae
voluntati. Co. Litt. 185,
f Litt. § 287.

(4) If a will is made by a joint-tenant of real property, devifing his interest in the premises, and after the execution of the will there is a partition of the estate, the teftator's share cannot pass by the devife unless there is a republication of the will fubfequent to the partition. 3 Burr. 1488.


of intereft. And therefore, if there be two joint-tenants for life, and the inheritance is purchased by or defcends upon either, it is a feverance of the jointure; though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold fhall remain in jointure, without merging in the inheritance; becaufe, being created by one and the fame conveyance, they are not feparate estates, (which is requifite in order to a merger) but branches of one entire eftate. In like manner, if a joint-tenant in fee makes a leafe for life of his fhare, this defeats the jointurei; for it deftroys the unity both of title and of intereft. And, whenever or by whatever means the jointure ceafes or is fevered, the right of furvivorship or jus accrefcendi the fame inftant ceases with it. Yet, if one of three joint-tenants alienes his fhare, the two remaining tenants ftill hold their parts by joint-tenancy and furvivorship: and, if one of three jointtenants releases his fhare to one of his companions, though the joint-tenancy is deftroyed with regard to that part, yet the two remaining parts are still held in jointure"; for they ftill preserve their original constituent unities. But when, by any act or event, different interefts are created in the feveral parts of the estate, or they are held by different titles, or if merely the poffeflion is feparated; fo that the tenants have no longer thefe four indifpenfable properties, a famenefs of intereft, and undivided poffeflion, a title vesting at one and the fame time, and by one and the fame act or grant ; the jointure is inftantly diffolved,

In general it is advantageous for the joint-tenants to dif folve the jointure; fince thereby the right of furvivorship is taken away, and each may tranfmit his own part to his own heirs. Sometimes however it is difadvantageous to diffolve the joint estate: as if there be joint-tenants for life, and they make partition, this diffolves the jointure; and, though be

8 Cro. Eliz, 470.
h2 Rep. 60. Co. Litt. 182.
i Litt. § 302, 303.

* Nibil de re accrefcit ei, qui nibil

in re quando jus accrefceret babet. Ca.

Litt. 188.

I Litt. § 294.

m Ibid. § 304


[ocr errors]

fore 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 ".
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 for in the firft place, by the feverance of the
jointure he has given himself in his own moiety only an estate
for his own life; and then he grants the fame land for the
life of another: which grant, by a tenant for his own life
merely, is a forfeiture of his eftate P; for it is creating an
eflate which may by poffibility lait longer than that which
he is legally entitled to.

[ocr errors]

III. AN eftate held in coparcenary is where lands of inheritance defcend from the ancestor to two or more perfons. It arifes either by common law or particular custom. By common law : as where a person seised in fee-fimple or in fee-tail dies, and his next heirs are two or more females, his daughters, fifters, aunts, coufins, or their reprefentatives; in this case they shall all inherit, as will be more fully fhewn, when we treat of defcents hereafter: and thefe co-heirs are then called coparceners; or, for brevity, parceners only 9. Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as fons, brothers, uncles, &c. And, in either of these cafes, all the parceners put together make but one heir; and have but one eftate among them'.

THE properties of parceners are in some respects like thofe [188] of joint-tenants; they having the fame unities of intereft, title, and poffeffion. They may fue and be fued jointly for matters relating to their own lands: and the entry of one of them fhall in fome cafes enure as the entry of them all ".

a Jones. 55.

• 4 Leon. 237.
P Co. Litt. 252.

• Litt. § 241, 243,

r Litt. § 265.
• Co. Litt. 163.
t Ibid. 164.
u Ibid. 188, 243,


« ForrigeFortsett »