89. Definitions by Littleton and Blackstone.—The distinguishing characteristics of an estate in joint-tenancy are, no doubt, well understood; but, if we may judge from frequent attempts resulting in failures of like frequency, great difficulty has been experienced in embodying those characteristics in any single definition. Both Littleton and Blackstone content themselves by giving an instance or illustration of this estate. Neither attempts any precise or formal definition. The former says: "Joyntenants are, as if a man be seized of certaine lands or tenements, &c., and enfeoffeth two, three, or four, or more, to have and to hold to them for terme of there lives, or for terme of another's life, by force of which feoffment or lease they are seized, these are joyntenants." According to Blackstone, "An estate in joint tenancy is where lands or tenements are granted to two or more persons to hold in fee-simple, fee-tail, for life, for years, or at will."2 Each of these illustrations shows rather how a joint-tenancy may be created, than what its peculiar incidents are after its creation. The words of Littleton may be misprinted. If not, his definition is more objectionable than Blackstone's, because it involves the idea that joint-tenancies cannot be of estates in fee, but are confined to estates for life. Both illustrations are alike faulty in implying that a joint-tenancy must necessarily be created by a feoffment or grant, and that it does not include personal property. They are also liable to the further objection of assuming that a grant to two or more is the chief feature of joint-tenancy, whereas a tenancy by entirety was also created by a grant to two (they being husband and wife); and a tenancy in common arose from a grant to two or more, when the grantor inserted words indicating an intent to create a several instead of a joint estate. Mr. Cruise, in treating of joint-tenancy, avoids this last objection when he states that "where lands are granted to two or more persons, to hold to them and their heirs, or for term of their lives, or for term of another's life, without any restrictive, exclusive, or explanatory words, all the persons named in such instrument

Litt. soc. 277.


* 2 Bl. Comm. 180. See note Co. Litt. 180 a.

to whom the lands are so given, take a joint estate, and are called joint-tenants."


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2 10. Definitions by Kent and Preston.-"Joint-tenants," according to the definition of Chancellor Kent, "are persons who own lands by a joint title, created expressly by one and the same deed or will. They hold uniformly by purchase." This definition has the vice of implying that joint-tenancy does not apply to chattels, and that it could not exist in title by prescription. A better definition than either of those heretofore alluded to is that of Mr. Preston, viz., "Jointtenancy is when several persons have any subject of property jointly between them, in equal shares, by purchase." This definition, as well as that of Chancellor Kent, is too broad, in this, that it embraces tenancy by entireties, as well as joint-tenancy. It is doubtful, too, whether joint-tenants necessarily hold in equal shares. Thus, if A, B and C be joint-tenants, and C alienate one-half of his moiety to D, A, B and C remain joint-tenants, though the interest of C is no longer equal to that of A or B. Perhaps, however, after such alienation, the estate would be held as follows: one-half by A, B and C as joint-tenants; one-third by A and B as jointtenants; and one-sixth by D as a tenant in common. Viewed in this light, the alienation would create two joint-tenancies, in one of which the interests of the cotenants A and B would be equal, and in the other the interests of the cotenants A, B and C would also be equal; and thus the correctness of this feature of Mr. Preston's definition would be established. If this definition were modified so as to exclude tenancies by entireties, and by inserting two or more in the place of "several," we should feel inclined to accept it as correct. It would then stand as follows: "Joint-tenancy is when two or more persons, not being husband and wife at the date of its acquisition, have any subject of property jointly between them in equal shares by purchase."

2 Greenl. Cruise, 364.

4 Kent's Comm. 357.

31 Preston on Estates, 136.

+ For discussion of difference between joint tenancy and tenancy by entireties, ses gó 64 and 71.

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11. Properties of a Joint-Tenancy.-"The properties of a joint estate are derived from its unity, which is fourfold: the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession." All these properties usually belong to a joint-tenancy, but it must not be inferred that all are indispensable. Joint-tenants may have different estates. Thus, two persons may have an estate in joint-tenancy for their lives, and yet have several inheritances; and a fee may be limited by the same conveyance to two persons and to the heirs of one of them.2 Lord Coke says: "If a rent-charge be granted to A and B, to have and to hold to them two, viz., to A untill he be married, and to B untill he be advanced to a benefice, they be joyntenants in the meantime, notwithstanding the severall limitations."3 So there are exceptions to the rule that joint-tenants must acquire their estates at one and the same time. This rule "does not apply to the learning of uses and executory devises." Thus, a man may make a feoffment in fee to the use of himself and such wife as he shall afterwards marry, for their joint lives. In case of his subsequent marriage, he and his wife, though they come to their estates at different times, will hold as joint-tenants. So a devise or limitation to the use of the children of A, will give each child an estate as soon as born, and yet all will hold as joint-tenants. And, according to the opinion of Lord Thurlow, whether a settlement be considered as a conveyance of a legal estate, or as a deed to uses, the vesting at different times would not necessarily prevent the estate from being held in joint-tenancy. This opinion must

12 Bl. Comm. 180; 4 Dane's Ab. 758.

*For instances of joint-tenants having different estates, see 4 Kent Comm. 357; note to 2 Bl. Comm. 181; Co. Litt. 184 a; Crary v. Willis, 2 P. Wms. 530; Cook v. Cook, 2 Vern. 545.

3 Co. Litt. 180 b.

* On this subject generally, consult 4 Kent Comm. 358; Schouler on Personal Property, 192.

5 Stratton v. Best, 2 Bro. 240. A testator devised a tract of land to his brother's two eldest sons, “in case of their coming to Canada and claiming the same." The Court held that each devisee had his entire lifetime in which to come and claim his estate; that if they came separately, their estates must vest in them at different dates,

C. & P.-5

not be received as undoubted law.' But there seems to be no exception to the rule that the title of joint-tenants must arise from one act, deed, or devise.

12. Survivorship. But the grand incident of joint estates is the doctrine of survivorship, "by which, when two or more persons are seized of a joint estate, for their own lives, or pur auter vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it may be." This right of survivorship arises when one of the tenants suffers a civil, as well as when he undergoes a physical death. But two may be joint-tenants without both having equal benefit of survivorship: "As if a man letteth lands to A and B during the life of A; if B dyeth, A shall have all by the survivor, but if A dyeth, B shall have nothing." So there may be tenancies with the incident of survivorship; but, in other respects, possessing none of the characteristics of a joint-tenancy. Thus, where property was devised by a testator to his three sisters "for and during their joint natural lives, and the natural life of the survivor, to take as tenants in common, and not as joint-tenants," these words were construed so as to create a tenancy in common, with the incident of survivorship. The word "survivor" and the words "to the survivor" have often been used in devises, in connection, however, with other words indicating an intention that the devisees should not take a joint estate. In such cases, the Courts have uniformly interpreted the intention of the testator to be that the estate devised should vest in all the de

but that, nevertheless, "they might still be joint-tenants; for it is allowed that the estates of joint-tenants may have a different commencement." (Doe, on dem. of McGillis v. McGillivray, 9 Q. B., Upper Canada, 9.) Deed to O. R. and her children vests title in her children as joint-tenants as they are born. (Powell v. Powell, 5 Bush, Ky., 619.) In case of devises, there can be no doubt that the vesting of the estate in the several devisees at different times does not prevent them from holding as joint-tenants. (McGregor v. McGregor, 1 De G. F. & J. 63; Kenworthy v. Ward, 11 Hare, 196; Hand v. North, 33 Law J. Rep., N. S., Ch. 556.

Woodgate v. Unwin, 4 Sim. 129; McPherson v. Snowden, 19 Md. 230.

2 Bl. Comm. 184.

Co. Litt. 181 b.

Doe v. Abey, 1 Maule & S. 428.

visees surviving when the devise took effect, to be by them thereafter held as tenants in common. A devise to two or more, to the survivor of them, and to the heirs and assigns of such survivor," does not vest an estate in them as joint tenants. They have a "joint estate for life only, with contingent remainder in fee to the survivor."2


13. Survivorship in Equity.-Expressions may be found in the reports indicating that survivorship is abhorred in equity. However this may be, it is quite certain that few, if any, instances can be discovered where this abhorrence has led to any withholding of the rights of the survivor. Equity in this respect, as in others, follows the law. If there be a doubt whether an estate was, at its creation, a joint-tenancy or a tenancy in common; or if, conceding the estate to have been a joint-tenancy at its creation, there be a doubt whether there has not been a subsequent severance of the jointure-in all such cases equity will resolve the doubt in favor of tenancy in common. But if, on the other hand, the facts shown in a court of equity are such as would clearly induce the presumption of a joint-tenancy, if shown in a court of law, and there is nothing to indicate that such tenancy has been severed by the parties thereto, then in equity as in law, the right of survivorship, as well as all other facts arising out of the joint-tenancy, will be recognized and protected. It is unnatural that a man should desire to hold his property by such a tenure that, in the event of his death, his heirs should have no interest in his estate; but still, if any man give evidence of such a desire by accepting and retaining a joint estate, there is no reason why a court of equity should, after his decease, refuse to recognize the rights growing out of the relation which he had thus voluntarily assumed and

Rose . Hill, 3 Burr. 1881; Hawes v. Hawes, 1 Wils. 167; Shanks v. Chambless, Walker, 249; Keating v. Cassells, 24 Q. B. Up. Can. 314; Jones v. Hall, 16 Sim. 500. * Hannon v. Christopher, 34 N. J. Eq. 459; Vick v. Edwards, 3 P. Wms. 372. 3 York v. Stone, 1 Salk. 158.

Barclay . Hendrick's Heirs, 3 Dana, 380; Barker v. Giles, 2 P. Wms. 281. This is more especially true in the States whose statutes have required the intent to create a joint-tenancy to be expressed in the grant or devise. Hence where a testator bequeathed to his daughters, Mary and Martha, "and to the longest liver of them, all my household furniture, in addition to an equal share to each of them in the distribation of my estate," the court held that an intention was manifested that the furniture should be held in joint-tenancy, but that the balance of the estate should vest in the daughters as tenants in common. Pierce v. Baker, 58 N. H. 531.

5 Aveling v. Knipe, 19 Ves. 441; Stuart v. Bruce, 3 Ves. 632; Acton v. Smallman, 2 Vern. 556; Barclay v. Hendrick's Heirs, 3 Dana, 378; Bone v. Pollard, 24 Beav. 283.

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