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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.'
280. 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.9
? 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
1 Washb. on Real Estate, 561.
Chitty on Descents, 76, 77.
3 Co. Litt. 163 b.
4 Co. Litt. 164 b.
5 Harris v. Nichols, Cro. Eliz. 19; Buller v. Bishop of Exeter, 1 Ves. 340.
"Anon, 3 Leon, 6; Stedman v. Bates, Saek 390.'.
7 Jickling Anal. L. & Eq. Estates, 229.
* Chitty on Descents, 196-7; Johnstone v. Baber, 39 E. L. & Eq. 189; S. C. 25 L. J. Rep. Ch. 899; DeGex, M. & G. 439; 22 Beav. 562; 2 Bl. Comm. 189.
92 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
82. "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."2
283. 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."
284. Destruction.—Though an estate in coparcenary cannot be destroyed, as long as it remains in two or more persons
12 Cruise by Greenl. 391, 392; 4 Dane Ab. 758; 2 Bl. Comm. 188; Chitty on Descents, 77.
* Chitty on Descents, 75; 2 Cruise, 391; Co. Litt. 163 b; Hoffar r. Dement, 5 Gill, 137.
3 Chitty on Descents, 78; 4 Dane Ab. 758.
* Chitty on Descents, 77, 85.
by descent, it may be terminated by partition, by alienation, or by a union of the interests of all the coparceners in one parcener as heir of the others. An alienation by any of the parceners, disunites her title and interest from that of the others, and the coparcenary is thereby destroyed if there were but two parceners, but if there were more than two, those who did not convey remain coparceners as between one another, but are tenants in common with the alienee of the part so conveyed.1
285. Generally Abolished.-As persons to whom estates jointly descend are, in the United States, generally treated as tenants in common, "the distinction of estates in coparcenary is of comparatively little practical importance, and properly gives place to the familiar form of joint estates in universal use, tenancy in common. The same remark is equally applicable to the province of Upper Canada, coparcenary having there been changed into tenancy in common, by sec. 38 Ch. 82 of Cons. Statutes."
1 Chitty on Descents, 78; 2 Bl. Comm. 191; 2 Cruise, 394.
*1 Washb. on Real Est. 415; Sec. 1909 Code of Ala.; Laws of R. I. ed. of 1872, 348; Miller's Appeal, 3 Grant, 247; Stevenson v. Cofferin, 20 N. H. 150.
"Leith's Real Property Statutes, 55, 195.
Definition, § 86.
TENANCY IN COMMON.
Equal Right to Possession essential to, § 87.
What may be held by, § 88.
Whether Letters Patent are held by, § 89.
Who may hold by, § 90.
Legislative Grantees, § 91.
Created by Creating Unity of Right of Possession, § 92.
Agreement to Divide Profits, § 101.
Simultaneous Mortgages from same Mortgagor, § 102.
Simultaneous Deeds or Devises for same Person, § 103.
Voluntary Association, § 104.
Presumption of Relative Interests, § 105.
Presumption arising from Deed to two or more, § 106.
Interest of Tenant subject to Dower, § 107.
Widow before Dower assigned is not a Cotenant, à 108.
Lapse of Devise or Bequest to several as Tenants in Common, § 109.
No Lapse where it is to them as a class, § 110.
EFFECT OF PARTNERSHIP UPON REAL ESTATE HELD IN NAME OF PARTNERS AS TENANTS IN COMMON.
Difference between Partners and Cotenants, § 111.
Effect, at law, of Partnership on Cotenancy of Realty, § 112.
Effect, in equity, of Partnership on Cotenancy of Realty, § 113.
Mere Purchase by Partners does not convert Realty into Personalty, § 114.
Presumption arising from Purchase with Firm Assets, § 115.
Realty acquired outside of Partnership, § 116.
Realty when treated as Personalty, § 117.
Realty for what purposes treated as Personalty, § 118.
286. Definitions. "Tenants in common are they which have lands or tenements in fee-simple, fee-taile, or for terme of life, &c., and they have such lands or tenements by severall titles, and not by a joynt title, and none of them know of this his severall, but they ought by law to occupie these lands or tenements in common."1 The several tenancies are best distinguished from one another by considering the unities of each. Beginning with tenancy by entireties, we find five unities, viz., a unity of possession, of title, of estate, of time, and of person. Next comes joint-tenancy with the same unities as tenancy by entirety, except that of person. Then, next below joint-tenancy, is coparcenary, with its three unities, viz., of title, of possession, and of estate. And lastly, we have tenancy in common, which is different from the other tenancies in this, that it requires but one unity-that of possession. It is therefore a sufficient description of tenants in common to say that they "are persons who hold by unity of possession." "It is not necessary that there should be either unity of tenure in the different portions of the land, or unity of estate in the several owners thereof, to constitute a tenancy in common. Unity of right of possession merely is all that is required. " But tenants in common may also have a unity of interest, title, and time.1
87. Equal Right to Possession essential to. To constitute a tenancy in common, there must be an equal right to the possession of every part and parcel of the subject-matter of the tenancy. Several persons may together own an entire thing without being cotenants. This is always the case where one of them has the exclusive right of possession in one part of the thing, and the others have such exclusive right in the other parts. Thus, A may own the basement of a house, and B the first story above; or C and D may own contiguous rooms on the same floor; and E may have the right to enter and reënter for specified purposes. Here, though no one person fully owns the entire house, yet each as to his part has an estate in severalty. As between each
'Litt. sec. 292; 2 Cruise Dig. 399.
* 4 Kent Comm. 367.
Putnam v. Ritchie, 6 Paige Ch. 398. * Smith on Real and Pers. Prop. 246 (4th ed.)