assignment of dower, which is a mere severance of the common estate."1

109. Lapse of Devise or Bequest to.-A bequest or devise to two or more persons, under which, if both survived the testator, they would become tenants in common, will lapse as to the share of the one dying before the testator. The survivor can take only the moiety devised or bequeathed to him, and can gain nothing by the decease of him who, had he outlived the testator, would have taken the other moiety.2 The same principle is applicable to a conveyance to two or more as tenants in common, when one of them is dead. In Kentucky, a patent for certain lands was made by the State to Y and T, the latter having died prior to the issuing of the patent. Of the effect of this patent, the Court of Appeals said: "Whatever may have been the case, if Y had been a joint-tenant, to whom the land would have went by operation of law as survivor, (a point we need not now consider,) we conceive that the whole title did not pass to Y by the emanation of this grant. It is clear that no title could pass to a person not in existence; and it is equally clear that the intention of the State by this grant was to pass one undivided moiety to Y and the other to T in common; and to say that the State, although a grant of title was intended, passed it to a person not intended or named as taking, is construing the grant beyond its letter or spirit. If the whole was intended in moieties to each of two different persons, as was supposed, when there was but one in fact, there can still be no reason why that one should take either less or more than was intended or expressed. If a bequest be made to two or more as tenants in common, and the testator thereafter revoke the

' Stedman v. Fortune, 5 Conn. 462; Stokes v. McAllister, 2 Mo. 163; C. & A. Turnpike Co. v. Jarrett, 4 Ind. 215; Wooster v. H. L. Iron Co. 38 Conn. 256; Crocker v. Fox, 1 Root, 323.

2

* Bagwell v. Dry, 1 P. Wms. 700; Page v. Page, 2 Ib. 489; Peat v. Chapman, 1 Ves. Sr. 542; Bain v. Lescher, 11 Sim, 397; Bradley v. Wilson, 13 Grant's Ch. (Upper Canada) 642; Frazier v. Frazier, 2 Leigh, 642; Nelson v. Moore, 1 Ired. Eq. 31; Commonwealth v. Nase, 1 Ashmead, 242; Goodright v. Opie, 8 Mod. 123; Barker v. Giles, 9 Mod. 157; Sperling v. Toll, 1 Ves. Sr. 70; Reade v. Reade, 5 Ves. 744; Owen v. Owen, 1 Atk. 494; Jackson v. Kelley, 2 Ves. Sr. 285; Easum v. Appleford, 5 Myl. & Cr. 62; Norman v. Frazer, 3 Hare, 84; Hester v. Hester, 2 Ired. Eq. 330; Craighead v. Given, 10 Serg. & R. 351.

3 Currie v. Tibb's Heirs, 5 Monr. 443.

'share of one of them, such share does not

go to the other

legatees, but to the testator's next of kin. Thus, a testator gave the residue of his estate to his three children, a daughter and two sons, "share and share alike, as tenants in common, and not as joint-tenants." He afterwards, by a codicil, revoked his "daughter from being one of his residuary legatees," and gave her in lieu thereof £500 in New South Sea annuities;" "and in all other things he confirmed his will." It was argued that this revocation made the will the same as though she had never been named as a residuary legatee, and that it was clear that the testator meant to dispose of his whole estate. But the Court of Chancery adopted the construction that the sons were residuary legatees "of only two parts in three;" and this construction was affirmed on appeal to the High Court of Parliament.1

110. Gift to a Class.-The rules stated in the preceding section prevail, because where the testator has designated that each of the co-legatees shall receive a moiety, the Courts presume that he intended to confine his bounty to such moiety. But if, from the will, a different intent appears, the Courts will carry it into effect. Thus, if a gift be made to a class, as to the children of A, without naming any of them, here there can be no doubt that the testator desires to benefit all the children which A may have at the time of the vesting of the legacy. In such case, no part of the legacy lapses, on account of the death of some of A's children prior to that of the testator. Although the terms of the bequest are such as to create a tenancy in common, still the children of A, living at the vesting of the bequest, take the entire legacy.2 But in order to accomplish this result, the devise or bequest must be to a class and not to specified persons who may together happen

Cheslyn v. Cresswell, 3 Bro. C. P. 246; 2 Eden. 123, S. C.

2 Pemberton v. Parke, 5 Binn. 607; Gross's Estate, 10 Pa. St. 361; Hawkins v. Everett, 5 Jones Eq. 43; Walker v. Williamson, 25 Geo. 554; Stires v. Van Rensselaer, 2 Bradf. 172; Lawrence v. Hebbard, 1 Bradf. 252; Viner v. Francis, 2 Bro. C. C. 658; S. C. 2 Cox, 190; Doe v. Sheffield, 13 East, 526; Pendleton v. Hoomes, Wythe, 94; Rogers v. Moore's Devisees, 4 B. Monr. 24; Thornhill v. Thornhill, 4 Madd. 377; Collins v. Johnson, 8 Sim. 356; Le Jeune v. Le Jeune, 2 Keen, 701; Gray v. Garman, 2 Hare, 271; Shuttleworth v. Greaves, 4 Myl. & Cr. 35; Castle v. Eate, 7 Beav. 296; Frierson v. Van Buren, 7 Yer. 606; Miles v. Boyden, 3 Pick. 213; Vaughan v. Dickens, 2 Dev. & Bat. Eq. 52; Young v Robinson, 11 G. & J. 328; Swinton v. Legare, 2 McCord's Ch. 440.

to form a class. "A gift to a class implies an intention to benefit those who constitute the class, and to exclude all others; but a gift to individuals described by their several names and descriptions, though they may together constitute a class, implies an intention to benefit the individuals named. In a gift to a class, you look to the description and inquire what individuals answer to it; and those who do answer to it are the legatees described. But if the parties to whom the legacy is given be not described as a class, but by their individual names and additions, though together constituting a class, those who may constitute the class at any particular time may not, in any respect, correspond with the description of the persons named as legatees. If a testator give a legacy to be divided amongst the children of A at a particular time, those who constitute the class at the time will take; but if the legacy be given to B, C, and D, children of A, as tenants in common, and one die before the testator, the survivors will not take the share of the deceased child. The question must be, was the intention to bequeath to those who might, at the time, constitute the class, or to certain individuals who, it was supposed, would constitute it?"

EFFECT OF PARTNERSHIP UPON REAL ESTATE HELD IN NAME OF PARTNERS AS TENANTS IN COMMON.

? 111. Difference between Partners and Cotenants.— A partnership resembles a joint-tenancy in some respects. The partners have a joint interest in the assets of the partnership, and are required to sue and to be sued jointly in reference thereto. Upon the death of one, the others have a right of survivorship, entitling them to continue in the sole possession of the personal assets. This right is, however, but temporary, and practically amounts to nothing more than a power to wind up the concerns of the late firm. That power being executed, the representatives of the deceased copartner are entitled to his share of the remaining assets.2 Partnership property is not held by those unities which, next

1 Barber v. Barber, 3 Myl. & Cr. 697. See also to same effect, Bain v. Lescher, 11 Sim. 397; Norman v. Frazer, 3 Hare, 84; Havergall v. Harrison, 7 Beav. 49; Hammatt v. Ledsam, 9 Jur. 173: Hustler v. Tilbrook, 9 Sim. 368. Dyer v. Clark, 5 Met. 562.

to the jus accrescendi, are the chief characteristics of a jointtenancy. In this latter respect, a partnership resembles a tenancy in common. But the two differ from each other in this, that the former creates a joint, and the latter a several interest. Partnership is distinguished from both species of cotenancy by the means and by the result of its creation. The means of its creation is necessarily an agreement between the parties; whereas neither joint-tenancy nor tenancy in common need rest upon any such agreement. The result of its creation is a relation between the parties, whereby each is the agent of the other, with authority to manage and dispose of the firm property, and to make all contracts within the scope of the business in which the firm was designed to engage. No such result arises from a joint-tenancy, nor from a tenancy in common. Partnership and tenancy in common also differ from each other in other important particulars. Each cotenant "buys in, or sells out, or encumbers his interest at pleasure, regardless of the knowledge, or consent, or wishes of his co-proprietors, and without affecting the legal relation between them, beyond the going out of one and the coming in of another. This cannot be done where a copartnership exists. One cannot buy in or sell out of a partnership at pleasure. Such an act would of itself work a dissolution of the partnership, and necessitate its final settlement and closing out. A tenancy in common results from a rule of law by which it is also controlled and governed. A partnership, on the contrary, is the result of an agreement between parties, which also supplies the rule for its government. The former relation is undisturbed by a change of tenants, but the latter admits of no change in its members; and where a change takes place by the consent and agreement of all the parties concerned, the old firm is thereby dissolved and a new one created. Thus the incidents annexed to each have a different origin and are diverse. Also, the proceedings for a dissolution of these relations are grounded upon entirely different facts. As to the first, the mere desire of one of the tenants is sufficient to set the Court in motion; but as to the latter, cause must be shown."

'Bradley v. Harkness, 26 Cal. 77.

112. Effect at law of Partnership on Cotenancy of Realty. We have seen that copartnership and cotenancy differ from each other in the means of their creation and in the relations which they respectively produce between the parties in interest. A statement of even the general principles regulating the rights and duties of copartners, and controlling the final disposition of their assets, is not within the scope of this work. But it is well known that these principles are essentially different from the principles embodied in the law of cotenancy; and while this work does not involve any inquiry into the general law of copartnership, still it would be incomplete if it did not attempt to show under what circumstances, and for what purposes, property may be withdrawn from its subjection to the law of cotenancy, and placed within the dominion of the law of copartnership. Both at law and in equity, the personal assets of a firm are entirely subject to the law of partnership. This is too well settled to require any citation of authorities. Beyond this, these two systems of jurisprudence do not agree. The law does not admit that realty owned by two or more persons can be held other than in cotenancy. "The principles and rules of law applicable to partnerships, and which govern and regulate the disposition of the partnership property, do not apply to real estate. One partner can convey no more than his own interest in houses or other real estate, even where they are hold for the purposes of the partnership. There may be special covenants and agreements entered into between partners relative to the use and enjoyment of real estate held by them jointly, and the land would be considered as held subject to such covenants; and in the absence of all special covenants, the real estate owned by the partners must be considered and treated as such, without any reference to the partnership."

113. Realty held by Partners, how treated in Equity.— That real estate, though held as a joint-tenancy, or as a ten

1 Coles v. Coles, 15 Johns. 159; Thornton v. Dixon, 3 Brown's Ch. 199; Balmain v. Shore, 9 Ves. Jr. 500; Hoxie v. Carr, 1 Sumn. 176; Sigourney v. Munn, 7 Conn. 11; Peck v. Fisher, 7 Cush. 390; Andrews' Heirs v. Brown's Admr. 21 Ala. 437; Collumb v. Read, 24 N. Y. 505; Buchan v. Sumner, 2 Barb. Ch. 165; Miller v. Proctor, 20 Ohio St. 448; Peck v. Fisher, 7 Cush. 386.