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persons other than executors, should be held as a tenancy in common, unless an intention sufficiently appeared from the conveyance that a joint-tenancy was intended. The Court of Queen's Bench had no doubt that this statute applied only to such conveyances as, but for the statute, would create a joint-tenancy; and that it therefore could not operate on a conveyance to a husband and wife.1
2 66. States where Tenancy by Entireties does not Exist.-In Connecticut, estates by entireties have never been recognized. Deeds and devises to husband and wife are considered as vesting the estate conveyed or devised, in the same manner as to other persons. This rule in Connecticut is not based upon any statutory abolition of the common law, but upon the fact that, up to the time the question seems to have been first decided, (1836,) there had been a common understanding so long acquiesced in that the Court was unwilling to disturb it. So in Ohio the decisions have always been averse to this estate. The main specification against it was that "The jus accrescendi is not founded in principles of natural justice, nor in any reasons of public policy applicable to our society or institutions. But, on the contrary, it is adverse to the understandings, habits, and feelings of the people." Iowa, tenancy by entireties can be created only by express words for that purpose, the Courts of that State having decided that the statute declaring that conveyances to two or more in their own right create a tenancy in common, unless a contrary intent is expressed, is applicable to conveyances to husband and wife. In so deciding, the Court, after alluding. to the tendency of legislation and of public sentiment against joint-tenancies, said: "But is it still true that the destruction, partial or entire, of joint-tenancies does not apply to or affect conveyances to husband and wife? In other words, is it true that in this State such conveyances are to one person, and that the survivor takes the whole? If the legal unity or oneness continues as fully as at common law, then there would seem
In re Shaver, 31 Q. B. (Upper Canada) 605.
Whittlesey v. Fuller, 11 Conn. 340.
3 Sergeant v. Steinberger, 2 Ohio, 305; Wilson v. Fleming, 13 Ib. 68; Penn v. Cox, 16 Ib. 30
to be no escape from the conclusion. But this is just what is denied; and in the same connection it is also denied that the 'estate in entirety' exists in this State, or is known to our law.
"It is by no means asserted or claimed that husband and wife are two persons for all purposes, nor that the commonlaw idea of unity is by any means entirely abolished or abrogated. But what is asserted is, that as the wife may hold and convey real estate in the same manner as other persons, so she may take by the same tenure and subject to the same incidents, neither greater nor less, as though a feme sole. If no contrary intent is expressed in the conveyance to them, or the instrument under which they hold, the husband and wife take as tenants in common, and not in entirety. At common law, they were so far so completely, so essentially one, that they could not take by moieties. And why? Because of this absolute oneness. But does this reason longer exist, or, at least, with us?" After adverting to legislation in Iowa innovating upon the common law in regard to the powers of a married woman, the Court concluded that "her ability now, as compared with the rule of the common law, to take a separate estate, her ability to stand seized in her own right jointly with the husband, and to now hold by moieties, just as joint-tenants could-we say these considerations seem conclusively to show that the rule of the common law as to estates in entirety cannot obtain here. The doctrine always stood upon what was little more than the merest fiction, and as this, by our legislation, has measurably given way to theories and doctrines more in accord with the true and actual relations of husband and wife, the rule itself must be abandoned."1
67. A tenancy by entireties may exist in an estate "in fee, in tail, for life, or for years, or other chattel real.” 2 It may be of an estate in possession, reversion, or remainder.3 It may also be of customary estates. A tenancy by entireties of the legal estate may exist between husband and wife
'Hoffman v. Stigers, 28 Iowa, 307.
2 Preston on Abstracts of Title, 39; Wiscot's Case, 2 Rep. 60; 5 Bac. Ab. 244; Downing v. Seymour, Cro. Eliz. 912.
Purefoy v. Rogers. 2 Saund 382.
4 Glaister v. Hewer, 8 Ves. 195.
under such circumstances that in equity they will be regarded as tenants in common. Thus, if a man and wife hold the equitable title to a tract of land as tenants in common, and a patent based upon such equitable title issue to them, they will thereafter hold the legal title as tenants by entireties, with the right of survivorship; yet her equitable estate will not be thereby defeated, but will descend to her heirs at her death.1
2 68. In Personal Property.-Mr. Bishop, in his recent work on the Law of Married Women, says "if real estate is conveyed by deed to a husband and wife, this creates in them a peculiar kind of tenancy, known as tenancy by the entirety; the consequence of which is, that, during the coverture, neither can alien the land to the prejudice of the rights of the other, and on the dissolution of the coverture by the death of one of them, the survivor takes the whole. Nothing of this sort is known in respect of personal property. Since the wife cannot own personal property in her possession in her own right, but whatever title she has to such property vests in the husband, if a chattel is given or sold to husband and wife jointly, the title passes wholly to him." The declaration that nothing in the nature of tenancy by entirety is known in respect to personal property is supported by a single citation. That it is so feebly supported is not attributable to omission to take advantage of whatever may have been available on that side of the question, but to the fact that there are certainly few cases, and in all probability no case, in accord with the one on which Mr. Bishop's assertion is based. On the other hand, the reports, English and American, new and old, abound in cases recognizing tenancy by entirety in all kinds of personal estate, and enforcing the right of the surviving husband or wife to the entire property.' Thus, a legacy to a husband and wife of £100 per annum vests
Norman v. Cunningham, 5 Gratt. 70.
* Bishop on the Law of Married Women, sec. 211.
* Polk v. Allen, 19 Mo. 467. But in a later case in the same State, (Shields v. Stillman, 48 Mo. 86,) a husband and wife were regarded as tenants by entirety of a promissory note.
Bricker v. Whately, 1 Vern. 233; Cowper v. Scott, 3 P. Wms. 121; Atty. Genl. v. Bacchus. 9 Price, 30.
in them as tenants by the entirety, and the survivor is entitled to the whole. The same is true of a joint judgment in favor of husband and wife; and of all choses in action taken by them in their joint names. And whenever a husband procures stocks in the name of himself and wife, or takes notes, mortgages, or other securities in his and her names, a tenancy by entirety is created in such stocks, notes, mortgages, or other securities. The husband is presumed to have meant something by the use of his wife's name, and that something is also presumed to have been intended for her advantage. Had he desired to be sole owner, he would have used no name other than his own. But having had her name inserted with his own, she, in the event of his death, becomes sole owner of all which the two at the moment of his decease possessed as tenants by the entirety. So, when a husband purchased a Walk in a Chase, and took the patent to himself and wife and B, and her right to the share of the patent was afterwards questioned, the Court said, "It shall be presumed to be intended as an advancement and provision for the wife;" and decreed that she should have the benefit of the patent during her life.5
269. Creation. “The same words of conveyance which would make two other persons joint-tenants will make a husband and wife tenants of the entirety, so that neither can sever the jointure, but the whole must accrue to the survivor." Hence, a bequest to my daughter Catherine M., married to Samuel M., the one-eighth part to them, as it manifests by the use of the words "to them" an intent to give property to a husband and wife, gives rise to tenancy by entireties. But it seems to be essential that the spouses be
Cowper v. Scott, 3 P. Wms. 120.
"Bond v. Simmons, 3 Atk. 21; Anon. 3 Atk. 726; Coppin v. 2 P. Wms. 496. 3 Jickling's Analogy L. & Eq. Estates, 257, citing Temple v. Temple, Cro. Eliz. 791; Norton v. Glover, Noy, 149. As to promissory note, see Shields v. Stillman, 48 Mo. 86. In re Gadbury, 32 Law J. Rep. (N. S.) Ch. 780; Craig v. Craig, 3 Barb. Ch. 104; Draper v. Jackson, 16 Mass. 486; Christ's Hospital v. Rugdin, 2 Vern. 683; Rider v. Kidder, 10 Ves. 360.
5 Kingdon v. Bridges, 2 Vern. 67.
6 De Gray, C. J., in Green v. King, 2 Wm. Bl. 1213; Martin v. Jackson, 27 Pa. St. 504; Doe v. Parratt, 5 Term Rep. 652; Farmer's Bank v. Gregory, 49 Barb. 155; Den v. Hardenbergh, 5 Halst. 45.
Hamm v. Meisenhelter, 9 Watts, 350.
jointly entitled, as well as jointly named, in the deed. Hence, if the wife alone be entitled to a conveyance, and it is made to her and her husband jointly, the latter will not be allowed to retain the whole by survivorship. This is equally true where the conveyance is so made at her request, because, being a married woman, she is presumed by the common law to have acted under the power and by the coercion of her husband. Tenancy by entirety is not always created by purchase. In Pennsylvania, it has been determined that a husband and wife inheriting property as heirs of one of their children, acquire thereby an estate by entireties.2
% 70. Husband and Wife take as one Person.-The husband and wife not only take an entire estate as one person when it is granted to them, but they are also regarded as one person in any conveyance made to them and others, and therefore take but one moiety. Thus, if a deed be made to A and wife and B, here A and wife together take but one half. This is true whether the conveyance be intended to create a jointtenancy or a tenancy in common. A legacy was given to Captain R. G., his wife, and children. The Master of the Rolls, in construing the bequest, said: "The testatrix has used no words from which it can be discovered what, if any, intention she had with respect to the proportions in which the legatees were to take and enjoy the legacy thus given to them jointly. Under such circumstances, the proportion must be determined by the ordinary rule applicable to such cases; and there being nothing to distinguish the present case from those in which the rule stated in Littleton, and applied in several cases cited at the bar, was acted upon, I am of the opinion that the legatees must take in thirds: viz., the husband and wife one, and the two children each of them
Moore v. Moore, 12 B. Monr. 664; Babbit v. Scroggin, 1 Duval, 273.
* Gillan v. Dixon, 65 Pa. St. 395.
* Doe v. Wilson, 4 Barn. & Ala. 3 03; Barber v. Harris, 15 Wend. 615; Back v. Andrew, 2 Vern. 120; Bricker v. Whatley, 1 Vern. 233; Litt. sec. 291; In re Wylde, 2 D. M. & G. 724. Contra, see Warrington v. Warrington, 2 Hare, 56. ་
* Johnson v. Hart, 6 Watts & S. 319,
* Gordon v. Whieldon, 18 L. J. Rep. (N. S.) Chan. 5; 11 Beav. 170; Atcheson v. Atcheson, 18 L. J. Rep. (N. S.) Chanc. 230; 11 Beav. 485.
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