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.


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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."2 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.

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

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visees surviving when the devise took effect, to be by them thereafter held as tenants in common.1


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 jointtenancy 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 rights 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 retained. It should also be remembered that each joint-tenant has, by the operation of the law of survivorship, an equal chance with his cotenant of succeeding to the entire estate. Survivorship has, perhaps, never been more ably defended than by the Master of the

1 Rose v. Hill, 3 Burr. 1881; Hawes v. Hawes, 1 Wils. 166; Shanks v. Chambless, Walker, 249; Keating v. Cassells, 24 Q. B. (Upper Canada) S14; Jones v. Hall, 16 Sim. 500.

2 York v. Stone, 1 Salk. 158.

3 Barclay v. Hendrick's Heirs, 3 Dana, 380; Barker v. Giles, 2 P. Wms. 281. '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.

Rolls when, in the case of Cray v. Williams,' he said: "Neither is there anything unreasonable or unequal in the law of joint-tenancy, each having an equal chance to survive; and the duration of all lives being uncertain, if either party has an ill opinion of his own life, he may sever the jointtenancy by a deed granting over a moiety in trust for himself; so that survivorship can be no hardship where either side may, at pleasure, prevent it."

14. Survivorship is Paramount to Dower and Curtesy, and to Rights of Devisees. At the death of a jointtenant, his cotenants are instantly seized of the whole estate. Neither the heirs, nor any other persons claiming under the deceased cotenant, have any claim to his former interest in the estate, unless there has been some act of severance sufficient to change the nature of the tenancy and to subvert the whole right of survivorship. "The mere possibility of the estate being defeated by survivorship prevents the wife from having any dower." The reason for this is, "for that the jointenant, which surviveth, claimeth the land by feoffment, and by survivorshippe, which is above the title of dower."3 Dower in the lands of joint-tenants is, in Mississippi, allowed by statute.1 The same reasons which exclude the wife of a jointtenant from her right to dower, prevent the husband of a joint-tenant from taking any interest in the lands of his deceased wife as tenant by curtesy," though during their coverture he has the right to use and occupy such lands as tenant by marital right. So a devise made by a joint-tenant, as there is no estate after his death to operate upon, has no effect. But it seems that the decisions go further, and declare such a devise void, though the testator before his decease, but subsequent to the devise, acquired a devisable interest, as where the lands, when devised, are held in jointtenancy, and are thereafter set off to the testator in severalty.

12 P. Wms. 529.


Mayburry v. Brien, 15 Pet. 37; 5 Bac. Ab. 240.

3 Co. Litt. 37 b; Litt. sec. 45.

4 James v. Rowan, 6 S. & M. 393.

5 Chitty on Descents, 323; Bell on Husband and Wife, 157.

6 Bishop v. Blair, 36 Ala. 80.

7 Duncan v. Forrer, 6 Binn. 197; Powell on Devises, 116; Litt. sec. 287.

The reasons given for holding the devise inoperative, even in such a case, were that it could only take effect as a severance, which it was not; that the estate to pass by devise must be of the same character as it was when devised; and that the changing of the estate from joint to several, so far from assisting the devisee, was a revocation of the devise.'

15. Who may be Joint-Tenants. In a preceding section, a quotation was made from Lord Coke's comments upon Littleton, in which his Lordship asserts that there may be a joint-tenancy without equal benefit of survivorship, or with such benefit exclusively in favor of one of the tenants. Notwithstanding this general principle, inequality in survivorship has been suggested as the reason for the rule that there can be no joint-tenancy between a corporation and a natural person; and the impossibility of survivorship has also been urged as a conclusive ground for denying the right of two corporate bodies to hold between them a joint estate. In the case of corporations, it is further asserted that they cannot hold jointly because they are seized by different rights and in different capacities. But upon whatever reasons founded, the rule is established, beyond doubt, that "bodies politic or corporate cannot be joint-tenants with each other; nor can the king, or a corporation, whether sole or aggregate, be jointtenant with a natural person;" but "all natural persons may be joint-tenants.”4

16. What may be held in Joint-Tenancy.-No species of property is incapable of being held by a joint title. Whatever may be subject to individual dominion by virtue of the law of sole ownership, is likewise susceptible of being made subject to such joint dominion as results from the law of joint ownership. Thus, considered in regard to the quantity of interest which the joint-tenants have, their estate may

Swift v. Roberts, Amb. 617; S. C. 3 Burr, 1488; 1 Blackst. 476.

* See § 12.

3 Co. Litt. 190 a; 2 Greenl. Cruise, 372; Telfair v. Howe, 3 Rich. Eq. 242; De Witt v. San Francisco, 2 Cal. 297; Lyster v. Kirkpatrick, 26 Q. B. (Upper Canada) 217. 42 Greenl. Cruise, 372.



be in fee-simple, fee-tail, for life,' for years, or at will. It may be for life, or for the life of another. The estate may be equitable as well as legal. It may be undivided as well as in severalty. Hence, if there be three persons holding as joint-tenants, and one convey his interest to a third person, the other two will remain joint-tenants between each other, though their title is for only two-thirds of the estate. So joint-tenants may hold every species of personal estate, including funds in which they have jointly invested," and also all kinds of chattels, debts, duties, contracts, and choses in action. In regard to mortgages, the rule seems to be, that whenever the mortgage is made to two or more to secure a joint debt, they will be treated as joint-tenants during the existence of the mortgage, and will be compelled to pursue their remedy of foreclosure by joint action. But if, on the other hand, the debts secured are the several debts of the mortgagees, this fact rebuts the presumption of joint ownership in the mortgage, and leaves each at liberty to pursue his several remedy for the collection of the amount due to him individually. In fact, the decisions holding joint-mortgagees to be joint-tenants, do not seem to carry the rule beyond allowing, or perhaps requiring, the survivor, in case of the death of either party, to prosecute the proceedings for foreclosure. The loan of the money for which a mortgage is. given is not regarded as a transaction which would ordinarily raise the presumption that the parties thereby intended to create a joint ownership in the thing lent, with the benefit of survivorship. The surviving mortgagee is therefore, at least in equity, treated as trustee of the representatives of his deceased co-mortgagee." If the loan of the money does not

1 2 Bl. Comm. 180.

2 1 Platt on Leases, 537; Sym's Case, Cro. Eliz. 33; Brundel's Case, 5 Co. 9 a; Jeffereys v. Small, 1 Vern. 217.

Elliot v. Jekyl, 2 Ves. Sr. 681.

York v. Stone, 1 Salk. 158; Rex v. Williams, Bunb. 343; Jickling on the Analogy between Legal and Equitable Estates, 233.

5 Crossfield v. Such, 22 Eng. L. & E. 555; 8 Exch. 825; 22 Law J. Rep. Exch. 325. Trammell v. Harrell, 4 Ark. 602; Sessions v. Peay, 19 Ark. 269; Litt. secs. 281 and 282.

7 Appleton v. Boyd, 7 Mass. 131; Williams v. Hilton, 35 Me. 547.

8 Brown v. Bates, 55 Me. 522; Burnett v. Pratt, 22 Pick. 558.


Story Eq. Jur. sec. 1206; Randall v. Phillips, 3 Mason C. C. 387; Petty v. Styward, 1 Ch. Rep. 31, 57.

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