assent. The principle thus asserted in Pennsylvania, has, under a very similar statute, been affirmed by a number of decisions in Indiana.2

876. Dissolution of the Tenancy by Death or Divorce.— In the event of the death of either spouse during the continuance of an estate held by entireties, the survivor continues seized of the whole. During the continuance of the marital relations, neither husband nor wife can change the character of the tenancy so as to become a tenant in common, nor a joint-tenant, nor an owner in severalty. But by a decree of divorce, the legal unity of person, on which the estate depended, is destroyed; "one legal person has been resolved by judgment of law into two distinct, individual persons, having in future no relations to each other; and with this change in their relations, must necessarily follow a corresponding change of the tenancy dependent upon the previous relation. As they cannot longer hold in joint seisin, they must hold by moieties." But it is claimed that if a husband alienate property held by entireties, the alienee takes a title not dependent on a continuance of the marital relations; and that the wife is not, by virtue of the annulment of the marriage, entitled to the possession of her moiety from her husband's grantee. The purchase, "not made in view of the contingency of the wife's divorce, cannot be affected by it." But in the event of the death of a husband, the rights of the alienee of property of which the husband could make no absolute disposition, cease; and the surviving wife may recover possession by an action of ejectment.5

McCurdy v. Canning, 64 Pa. St. 41.

*Davis v. Clark, 26 Ind. 424; Arnold v. Arnold, 30 Ind. 305; Simpson v. Pearson, 31 Ind. 1; Chandler v. Cheney, 37 Ind. 413.

Ames v. Norman, 4 Sneed, 696; 2 Bright on Husband and Wife, 365.

'Ames v. Norman, 4 Sneed, 696.

'Brownson v. Hull, 16 Vt. 309.

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Generally Abolished in United States and in Canada, § 85.

877. Definitions.-"Parcenary is a title by DESCENT, and arises on the death of a person seized of an estate of inheritance, leaving two or more females lieneal or collateral, his next heir." "Coparceners are several persons taking lands, or any undivided share of lands, held for an estate of inheritance by descent."2 This estate arises "where lands of inheritance descend from the ancestor to two or more persons, as his daughters, sisters, aunts, cousins, or their representatives, or the males in gavelkind." "This tenancie in the ancient books of law is called adæquatio, and sometime familia herciscunda, an inheritance to be divided; and many times parceners are called coparceners." The definition first quoted indicates that parceners are always females. In this it is erroneous, for parceners may be males as well as females. Males are in some instances made parceners by direct descent from their common ancestor, and in other instances they become parceners by being heirs to a female parcener."

1 Jickling on Anal. L. & Equitable, 222.

2 Preston on Abstracts of Title, 68. See also 2 Bl. Comm. 187.

34 Dane's Ab. 758.

Co. Litt. 164 b.

The most concise and perfect definition of coparcenary which we have seen is that in Burrill's Dictionary (title Estates,) namely: "An estate acquired by two or more persons (usually females) by descent from the same ancestor." Campbell v. Wallace, 12 N. H. 362; S. C. 37 Am. Dec. 219.


78. "Parceners are of two sorts, to wit: parceners according to the course of the common law, and parceners according to custome. Parceners after the course of the common law, are, where a man, or woman, seized of certain lands or tenements in fee-simple or in taile, hath no issue but daughters and dieth, and the tenements descend to the issue, and the daughters enter into the lands or tenements so descended to them, then they are called parceners, because by the writ which is called breve de participatione facienda, the law will constrain them that partition shall be made among them."1 Parceners according to the course of the common law, include aunts, cousins, and sisters, to whom lands descend from the same person. But if there be but one daughter, she is not called a parcener, but "daughter and heire." "Parceners by custome are, where a man seized in fee-simple, or in feetaile, of lands or tenements which are of the tenure called gavelkind within the countie of Kent, and hath issue divers sons and die, such lands or tenements shall descend to all the sons by custome, and they shall equally inherit and make partition by the custome as females shall do."3 There seems to be no difference between the rights of parceners by custom and parceners by the course of the common law.*


879. Parceners by the common law must be either females or the heirs of females. All the daughters of a man are equally his heirs, whether born of the same or of different mothers. They are therefore all equally parceners. Coparceners can acquire their estate by descent only. If two sisters acquire lands by purchase, they are not parceners, but joint-tenants, or tenants in common. If a coparcener die leaving a male heir, he will succeed to her estate, and will hold the same as a coparcener. By this means, men become parceners even by the course of the common law. A man may be parcener with himself. This happens when one-half of an estate descends to him from his father, and one-half from his mother. If he die in such case, without lineal de

2 Litt. sec. 242.

'Litt. sec. 241; Chitty on Descents, 76. Litt. sec. 265; Chitty on Descents, 182. Leigh. Shepherd, 2 Bro. & B. 465. 5 Chitty on Descents, 76. 6 Chitty on Descents, 78. Chitty on Descents, 76; Litt. sec. 254.

scendants, the half which came to him from his father descends to his father's heirs, while the other half descends to the heirs of his mother.'

880. What Estates confined to.-As coparceners acquire by descent, they cannot hold any other than an estate of inheritance. An estate in parcenary may be of "land,3 rents,* advowsons," reversions, indeed in nearly all property, corporeal or incorporeal, which is in its nature descendible." As to advowsons, the eldest of the coparceners seems to be entitled the privilege of making the first presentation. This privilege descends to her issue, or it may pass to her assignee, or to her husband as tenant by the curtesy. And in general when the property is not susceptible of partition, as, for instance, "the mansion house, common of estovers, common of piscary uncertain, or any other common without" stint, shall not be divided, but the eldest sister or other eldest parcener shall take it and make satisfaction therefor to the coparceners out of other parts of the inheritance; but if this satisfaction cannot be made, then the parceners may enjoy such indivisible property by turns."

8 81. The general properties of an estate held in coparcenary are, in most respects, very like the properties of a joint-tenancy. The former has three unities, viz., unity of title, unity of interest, and unity of possession; while the latter has the same three unities, and usually, but not necessarily, a fourth, unity of time. The latter estate is invariably acquired by purchase, and the former by descent. Coparceners have a unity but not an entirety of interest; and, between themselves, are, for many purposes, regarded as having several freeholds. Joint-tenants have equal interests: the

11 Washb. on Real Estate, 561.

"Chitty on Descents, 76, 77.

Co. Litt. 163 b.

Co. Litt. 164 b.

Harris v. Nichols, Cro. Eliz. 19; Buller v. Bishop of Exeter, 1 Ves. 340.

Anon, 3 Leon, 6; Stedman v. Bates, Salk 390..

Jickling Anal. L. & Eq. Estates, 229.

Chitty on Descents, 196-7; Johnstone v. Baber, 39 E. L. & Eq. 189; 8. C. 25 L. J. Rep. Ch. 899; DeGex, M. & G. 439; 22 Beav. 562; 2 Bl. Comm. 189.

2 Bl. Comm. 190; 2 Cruise Dig. 397.

interests of parceners may be equal or unequal. The number of the parceners may be augmented by the decease of one of them, leaving several heirs; but the number of jointtenants necessarily diminishes with each succeeding death, until the whole estate ultimately vests in the last survivor. But the most important distinction between these two tenancies arises from the fact that between coparceners "there is no jus accrescendi, or survivorship, for each part descends severally to their respective heirs, though the unity of possession continues."1

882. "Coparceners make but one heir, wherefore it follows that although, where there are two parceners, they have moieties in the lands descended to them, yet are they both but one heir; and one of them is not the moiety of an heir, but both of them are but unus hæres."?

83. Continuance of Coparcenary.-As long as an estate is held by two or more persons by descent, they are parceners. Thus, if one of two daughters, to whom an estate passed by descent from their ancestor, die, her heir becomes parcener with the survivor. If both of the daughters die, their heirs become parceners. "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." Hence, in the case of coparceners, the descent may be either in stirpes, or in capita. Thus if a man die, leaving as his heirs two daughters, the descent to them is in capita. But if, prior to the death of the father, the daughters had died, the elder of them leaving three daughters, and the younger leaving one daughter, the descent must be in stirpes, and the daughter of the younger must receive the same share as the three daughters of the elder.'

8 84. Destruction.-Though an estate in coparcenary cannot be destroyed, as long as it remains in two or more persons

1 2 Cruise by Greenl. 891, 392; 4 Dane Ab. 758; 2 Bl. Comm. 188; Chitty on Descents, 77.

"Chitty on Descents, 75; 2 Cruise, 891; Co. L169 b; Hoffar v. Dement, 5 Gill, 137.

Chitty on Descents, 78; 4 Dane Ab. 758.

Chitty on Descents, 77, 85.

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