of joint-tenancy, the Court has frequently been driven to rely on minute grounds for holding a severance to have taken place, by the unfortunate circumstance that the Legislature has not thought fit to interpose by introducing the rule, that

In MASSACHUSETTS, secs. 13 and 14 of the Chapter on Conveyances are similar to secs. 7 and 8 of the Indiana Act, already quoted. (Rev. of 1860, 466–7.)

In MICHIGAN, "all grants and devises of lands, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint-tenancy, unless expressly declared to be in joint-tenancy." (Sec. 44, 1329, Comp. Laws of Mich. 1871.) Sec. 45 provides that the preceding section shall not apply to mortgages, nor to devises or grants made in trust, or made to executors, or to husband and wife.

MINNESOTA.-Sec. 44 of the Act of this State in regard to Estates in Real Property, is a copy of sec. 41 of same act of Michigan, quoted above. The exception from the operation of the section does not name conveyances to husband and wife. (Genl. St. of Minn. ed. of 1873, 617.)

sons,

MISSOURI." Every interest in real estate granted or devised to two or more perother than to executors and trustees, or to husband and wife, shall be a tenancy in common, unless expressly declared in such grant or devise to be in joint-tenancy." (Comp. Law, ed. of 1865, 443.)

In NEVADA, "every interest in real estate granted or devised to two or more persons, other than executors or trustees, as such, shall be a tenancy in common, unless expressly declared in the grant or devise to be a joint-tenancy." (Sec. 269 Comp. Laws of Nev.)

NEW HAMPSHIRE.-"Every conveyance or devise of real estate to two or more persons shall be construed to create an estate in common and not in joint-tenancy, unless it shall be expressed therein that such an estate is to be holden by the grantees or devisees as joint-tenants, or to them and the survivor of them, or other words are used clearly expressing an intention to create a joint-tenancy." (Genl. St. ed. of 1867, 253, being sec. 14 of act concerning conveyances.)

NEW JERSEY.-The act of Feb. 4, 1812, declares: "No estate, after the passing of this act, shall in this State be considered and adjudged to be an estate in joint-tenancy except it be expressly set forth in the grant or devise creating such estate, that it is the intention of the parties to create an estate in joint-tenancy and not an estate in common, any law, usage, or decision heretofore made to the contrary notwithstanding." (Nixon's Digest, 4th ed. 150.)

NEW YORK." Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint-tenancy; but every estate vested in executors or trustees, as such, shall be held by them in joint-tenancy. This section shall apply as well to estates already created or vested, as to estates hereafter to be granted or devised. (Rev. St. of N. Y. vol. 3, p. 14, ed. of 1859.)

In RHODE ISLAND, all grants, devises, etc., made to two or more persons, whether husband and wife or not, shall be construed as creating a tenancy in common, unless a contrary intent appears. (Comp. Laws, ed. of 1872, 348.)

TENNESSEE." In all estates, real and personal, held in joint-tenancy, the part or share of any tenant dying shall not descend or go to the surviving tenant or tenants, but shall descend or be vested in the heirs, executors, or administrators respectively of the tenant so dying, in the same manner as estates held by tenancy in common." (Genl. St. ed. of 1873, sec. 2010.)

The law in VERMONT is similar to that of Rhode Island, but it excepts devises and conveyances in trust, or to husband and wife. (Genl. St. of Vt. App. 1870, 446.)

C

express words shall be required to create a joint-tenancy, in place of the contrary rule which is established, that words pointing to severalty of interest are necessary to constitute a tenancy in common. Under certain circumstances, as in the case of mortgages of trust money, a joint-tenancy is a considerable convenience; but it would be very desirable that, in general, in the absence of any express direction, a tenancy in common should be the construction adopted."1

236. The Retroactive Effect of the Statutes abolishing the right of survivorship, or enacting that no estate shall be held in joint-tenancy unless so provided in the deed creating it, has been sustained in some of the States, but denied in others. Thus, in Pennsylvania, a statute enacted that the part of the joint-tenant who should die first "shall not accrue to the survivor, but shall descend, or pass by devise." In construing this statute, the Court said: "Something was said in the argument of this cause against the constitutional power of the Legislature to pass an act affecting estates then in existence. But, on this point, we have no doubt: the act deprived no man of his property. Where title had already accrued by survivorship, it remained untouched. The only effect of the law was, to place the parties on an equal and sure footing, leaving nothing to chance; without depriving them, however, of the right of making any agreement between themselves which they may think proper. In such a law, there is nothing like an invasion of the rights of property, nor anything which is forbidden by the constitution of the Commonwealth." By statute passed as early as 1785, Massachusetts declared that all gifts or grants which have been or shall be made to two or more persons, shall be deemed to be estates in common. "The statute," said Chief Justice Parker, in delivering the opinion of the Supreme Court, "in its terms, applies to estates created before as well as after its enactment. The principle is nevertheless correct, that the Legislature cannot impair the title to estates, without the consent of the proprietors, unless for public objects, when an adequate con

1 Johns. & H. 557.

2 Bambaugh v. Bambaugh, 11 S. & R. 193.

sideration shall be provided. But there can be no objection to the operation of any legislative act retrospectively, which shall enlarge or otherwise make more valuable the title to any estate, for the consent of the holder may always be presumed to such acts. Now, it was clearly for the interest of both the grantees in the deed under consideration, that they should hold as tenants in common rather than as joint-tenants, inasmuch as a certain inheritance in a moiety is more valuable than an uncertain right of succession to the whole; and in this view, the objection to the operation of the statute, we think, is avoided." On the other hand, the highest Courts of some of the other States, without going into any discussion of principles, or giving any insight into the reasons which led them to do so, have declared that "the Legislature had not competent authority to give such an effect to the statute as would deprive joint-tenants of one of the essential elements of their tenure-the right of survivorship."2

237. Creation notwithstanding Statutes. -No doubt, but few attempts have been made, either by deed or devise, to create joint-tenancies by express words to that effect, in opposition to those statutes which have created presumptions in favor of tenancy in common. The fact that these attempts have been so unfrequent shows that, with the American people, joint-tenancy, if not a subject of aversion, is rarely a matter of preference. The words "jointly and severally" in a deed, though not inconsistent with the granting of a joint estate, are not sufficient to create a joint-tenancy in Massachusetts. The statute in Delaware, provides that the estate shall be a tenancy in common, unless the deed or devise shows that it is "to be held as joint-tenancy, and not as a tenancy in common." The words to A and B, "jointly their heirs and assigns forever," were not deemed sufficient to create a joint estate, because the term "jointly" does not necessarily

3

Miller v. Miller, 16 Mass. 61. See also similar views expressed by Wilde, J. in Anable v. Patch, 3 Pick. 363.

* Greer v. Blanchar, 40 Cal. 198; Dewey v. Lambier, 7 Cal. 348; The Boston Franklinite Co. v. Condit, 19 N. J. Eq. 399; Den ex dem. Berdan v. Van Riper, 1 Harr. N. J. 10.

Miller v. Miller, 16 Mass. 60; Bughardt v. Turner, 12 Pick. 538. In this last case, the words were "jointly to be equally divided."

mean a joint-tenancy, but may be applied to tenants in common who held jointly until severance. A devise made by a father to his "children and the survivor and survivors of them," contain apt words to create a joint estate. The children will consequently hold as joint-tenants even under the statute in force in Massachusetts.2

238. Not forbidden by Law.-The statutes enacting that at the decease of a joint-tenant his moiety shall descend to his heirs at law, or be subject to his devise, do not, it seems, place it beyond the power of a testator to create a survivorship. Thus, where a devise was made to three persons "as joint-tenants, and to the survivors and survivor of them," the intent to create a joint-tenancy and a survivorship was so clearly manifested, that the Court could only refuse to carry it into effect upon the ground that it was an unlawful intent. But the Court did not consider that the statute had made such an intent illegal, and therefore recognized and enforced the claim of the surviving devisee to the whole property.3

39. Dower under Statutes abolishing Survivorship.— It has already been shown that the right of the surviving joint-tenant to the whole estate was, at common law, paramount to the claim of the wife of the deceased cotenant for dower. By the several American statutes abolishing survivorship, the only obstacle to the wife's obtaining dower has been removed; and in the States where those statutes exist, her claim has been as fully recognized as though her husband's estate had been that of a tenant in common.1

40. Lapsing of Legacies and Devises.-We have seen that in at least ten of the States of the American Union, the only interference with joint-tenancy has been by abolishing the right of survivorship. A very important question neces

3 Arnold v. Jack's Executors, 24 Penn. St. 57; Lentz v. Lentz, 2 Phila. 117. Holbrook v. Finney, 4 Mass. 568; Reed v Kennedy, 2 Strob. 69; Weir v. Tate, 4 Ired. Eq. 277; Davis v. Logan, 9 Dana, 185; James v. Rowan, 6 S. & M. 393.

See sec. 35.

sarily arising in these States, is whether, when a deed, devise, or bequest, is made to two or more, without any words of severance, and one of them, from death or from any other cause, cannot receive the estate granted or bequeathed, shall his moiety vest in those who are competent to receive the estate, or shall it lapse, as in case of a grant or devise, to two or more as tenants in common. In the Appendix to Wythe's Reports' can be found the most thorough discussion of the common law doctrines and incidents of joint-tenancy which it has ever been our good fortune to discover. After showing that at common law the rule that the grantees or devisees who are competent to take the thing granted, take the whole as though they only had been named in the grant or devise, and that this rule was of universal application unless the estate was limited to them separately, and that it seemed to be in nowise dependent upon the jus accrescendi, the author proceeds to speak as follows of the statute of Virginia taking away the right of survivorship: "It does not annihilate the legal entity called a joint estate, so as to prevent any such estate from vesting, nor does it destroy the joint estate forthwith after it has vested. On the contrary, it permits the estate to subsist as joint, with all its former incidents, during the joint lives of all its owners; and if, in that time, partition be made, or a severance effected without partition, it is quiescent as a dead letter. It begins to operate at all only when one of the joint-tenants has died before partition or severance. And on the happening of that event, and from thenceforth, it directs that the part of the deceased shall be considered as if he had been a tenant in common, not from the beginning, but only when the event to which it refers happened. Where it applies, and to the extent of its application, it operates, in articulo mortis, a statutory severance; and that is all. It does not extirpate the quality of a joint estate, which made it produce, among other fruits, the jus accrescendi, but only destroys in the moment of production, or blights by anticipation in the bloom, that particular fruit. In this manner, it modifies the nature of a joint-tenancy by the common law, so far as to take away one of the incidents

See Wythe's Rep. 361.