*CHAPTER XXXII.

JOINT TENANCY AND TENANCY IN COMMON.

[*1115]

I. Joint-tenancy, Tenancies by
Entireties, and Tenancy in
Common

in common.

I. — Joint Tenancy, Tenancies by Entireties, and Tenancy in Common. Under a devise or bequest to a plurality of persons concurrently, it becomes necessary to consider whether they Joint-tenancy take joint or several interests; and that question derives and tenancy its importance mainly from the fact, that survivorship is incidental to a joint-tenancy, but not to a tenancy in common (a).1 A devise to two or more persons simply, it has been long settled, makes the devisees joint-tenants (b), but it should be observed, that (a) Any joint-tenant may, however, by his own conveyance sever the tenancy as to his own share, and consequently destroy the jus accrescendi between himself and his companions. If a woman joint-tenant of freehold or leasehold land (May v. Hook, Co. Litt. 246 a, n. (1)) or of reversionary interest in personalty (Re Barton's Will, 10 Hare, 12; Armstrong v. Armstrong, L. R., 7 Eq. 518) marries, this is no severance and the same rule applies to a chose in action (e. g., Bank Stock) not reduced into possession by the husband, Re Butler's Trusts, Hughes v. Anderson, 38 Ch. D. 286 (C. A.), disapproving the decision of Malins, V.-C., Baillie v. Treharne, 17 Ch. D. 388. See Burnaby v. Equitable Reversionary Interest Society, 28 Ch. D. 416, where Pearson, J., held that a settlement on marriage containing a covenant to settle present and after-acquired property of the wife severed the joint-tenancy in a sum of bank annuities to which she was entitled jointly with other persons. Marriage formerly severed a joint-tenancy as to chattels personal in possession (Bracebridge v. Cooke, Plowd. 416), as the husband had the right to take them, and so to divest the property out of the wife. But this distinction is apparently done away with by the operation of the Married Women's Property Act, 1882, as regards cases falling within that Act. See Re Butler's Trusts, sup., at p. 291.

(b) A limitation to two persons and the survivor of them, and the heirs of such survivor,

1 Where a devise or bequest is made to a number of persons as tenants in common, if one of them dies in the testator's lifetime his share does not pass, because, having given to each a certain proportion of his property, it would not be consistent with the testator's declared intention to give to the survivors a larger proportion; and where there is a bequest to more persons than one, by words showing that their enjoyment of the same is to be several and not joint, the share of one who dies before the testator does not pass, but remains as undevised estate. Upham v Emerson, 119 Mass. 509, Devens, J.; Lombard v. Boyden, 5 Allen, 249. See Fussey v White, 113 Ill 637. Secus where the gift is to persons jointly, as in the case of a gift to a class as such. Rockwell v. Smith, 59 Conn. 289 (citing Prescott v. Prescott, 7 Met. 141, Loring v. Coolidge, 99 Mass. 191; Dow v. Doyle,

103 Mass. 489; May's Appeal, 41 Penn. St. 512, Martin v. Lachasse, 47 Mo. 591); Holbrook v. Harrington, 16 Gray, 102; Jackson v. Roberts, 14 Gray, 546. See also ante, Vol. I., p. 321, note.

In America, the title by joint-tenancy is much reduced in extent, and the incident of survivorship is still further cut down, and generally limited to cases in which it is proper and necessary; as, to cases of titles held by trustees, and to cases of conveyance or devise to husband and wife. See 4 Kent, 361, 362; Hill v. Jones, 65 Ala. 214, Sackett v. Mallory, 1 Met. 355. Burghardt v. Turner, 12 Pick, 534; Boston Franklinite Co. v. Condit, 4 C. E. Green, 394; Hunt v. Satterwhite, 85 N. C. 73; Yard's Appeal, 86 Penn. St. 125; Gilman v. Morrill, 8 Vt. 77.

2 See Jacobs v. Bradley, 36 Conn. 365; Hannon v. Christopher, 23 N. J. Eq. 459;

Devisees joint-tenants, when.

Husband and wife tenants by entireties, when ;

[*1116]

1

where the objects of the devise are husband and wife,
who are in law regarded for many purposes as one per-
son, they take not as joint-tenants, but by entireties ;
the consequence of which is, that neither can, by his or
her own separate conveyance, affect the estate of the
other (c).
The same rules have been held applicable to

personalty (d).

* Another consequence of this unity of person in husband and wife is, that where a gift is made to them concurrently with other persons, they are considered as, and take the share of, one only. Thus, if property be given to A., and B. his wife, and C. (a third person), A. and B. will take one moiety, and C. the other, not A. and B. two-thirds, and C. the remaining third (e).

-and take the share of one only;

- although the bequest create a tenancy in

common.

It was said by Popham, C. J., that if the gift were to husband and wife and another as tenants in common, they would each take a third part (f); and so thought Sir J. Romilly, M. R. (9), and apparently Sir L. Shadwell also (h). But in Warrington v. Warrington (i), Sir J. Wigram, V.-C., rejected the distinction, thinking that the quantity which the husband and wife took as between them and third parties, was a different question from how they took as between each other. And in Re Wylde () they were held entitled to a moiety only between them, although in another part of the will an equal legacy was given to each of the three persons, husband, wife, and stranger. Some nice distinctions depending upon the husband and wife being named after the other legatee, the omission of the word "and" before the husband's name, and the near relationship to the testator of both hus

does not create a joint-tenancy; it gives a contingent remainder to the survivor, Vick v. Edwards, 3 P. W. 372; Re Harrison, 3 Anst. 836. But if the gift were to two and the survivor, and their heirs, they would probably be held to take jointly, Oakeley v. Young, 2 Eq. Ca. Ab. 537, pl. 6; Doe d. Young v. Sotheron, 2 B. & Ad. 628.

(c) Doe d. Freestone v. Parratt. 5 T. R. 652; Back v. Andrew, 2 Vern. 120, Pre. Ch. 1. (d) Atcheson v. Atcheson, 11 Beav. 485; Moffat v. Burnie, 18 Beav. 211; Ward v. Ward, 14 Ch. D. 506.

(e) See Lewin v. Cox, Moore, 558, pl. 759; Anon., Skinn. 182; Co. Lit. 187 a; Bricker v. Whatley, 1 Vern. 233. This rule is not altered by the operation of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), see Re March, Mander v. Harris. 27 Ch. D. 166 (C. A.), reversing the decision of Chitty, J., s. c. 24 Ch. D. 222; see also Re Jupp, Jupp v. Buckwall, 39 Ch. D. 148. Would it make any difference, as regards this doctrine, that the wife was described without reference to her conjugal character? It is conceived not. The doctrine is peculiar to English law, Dias v. De Livera, 5 App. Ca. 123.

(f) Lewin v. Cox, Moo. 558.

(g) Marchant v. Cragg, 31 Beav. 398.

(h) Paine v. Wagner, 12 Sim. 184.

(i) 2 Hare, 54.

(j) 2 D. M. & G. 724.

Dana v. Murry, 122 N. Y. 604; Purdy v.
Hayt, 92 N. Y. 446.

1 Jones v. Chandler, 40 Ind. 588; Marburg v. Cole, 49 Md. 402; Draper v. Jackson, 16 Mass. 480; McDermott v. French, 2 McCart.

78; Thomas v. DeBaum, 1 McCart. 37; French v. Mehan, 56 Penn. St. 286; Criswell's Appeal, 41 Penn. St. 288; Berrigan v. Fleming, 2 Lea, 271.

band and wife, and not of one of them only, have been thought sufficient in some cases (k) to authorize a departure from this rule, so as to treat the husband and wife as each entitled to share equally with the other legatees. How far such distinctions can be relied upon may be thought doubtful ().

Devisees in

tail tenants in common,

when ;

But an exception to the rule, that a devise to two or more creates a joint-tenancy, exists in certain cases where the estate conferred by the devise is an estate tail; for where lands are devised to several persons and the heirs of their bodies, who are not husband and wife de facto, or capable of becoming such de jure, either from their being of the same sex, or standing related within the prohibited degrees, inasmuch [*1117] as the devisees cannot either in fact or in contemplation of law (as the case may be) have common heirs of their bodies, they are "by necessity of reason," as Littleton says, "tenants in common in respect of the estate tail" (m). As this reason, however, applies only to the inheritance in tail, and not to the immediate freehold, the devisees are joint-tenants for life, with several inheritances in tail, so that on the death of one of them, whether he leave issue or not, the surviving devisee becomes entitled for life to his share under the joint-tenancy (n), and the inheritance in tail descends to the issue (if any) subject to such estate for life (0).

Nor are those cases within the rule where the devise is to the first, second, and other sons of A. in tail, for this form of gift is held to imply succession (p).

- though made jointtenants of the

freehold.

Devise to

"first, second,

&c. sons," they take successively.

A bequest of chattels, whether real or personal, to a plurality of persons, unaccompanied by any explanatory Joint-tenancy in chattels; words, confers a joint, not a several interest (9), and that

(k) Warrington v. Warrington, 2 Hare, 54; Paine v. Wagner, 12 Sim. 184. See Bricker v. Whatley, 1 Vern. 233; Re Dixon. Byram v. Tull, 42 Ch. D. 306.

(1) Gordon v. Whieldon, 11 Beav. 170; Re Jupp, Jupp v. Blackwell, 39 Ch. D. 148; but see the observations of North, J., on this decision in Re Dixon, sup., at p. 309.

(m) Co. Lit. 183 a, 184 a. See also Huntley's case, Dyer, 326 a; Cook v. Cook, 2 Vern. 545; Pery v. White, Cowp. 777; Forrest v. Whiteway, 3 Exch. 367; De Windt v. De Windt, L. R., 1 H. L. 87.

(n) Wilkinson v. Spearman, in D. P., cit. Cook v. Cook, 2 Vern. 545, and Cray v. Willis, 2 P. W. 529. See also Co. Lit. 182 a; Edwards v. Champion, 3 D. M. & G. 202; Tufnell v. Borrell, L. R., 20 Eq. 194.

(0) Sometimes a result of this kind is produced by the terms of the will, of which an example is afforded in Doe d. Littlewood v. Green, 4 M. & Wels. 229, where a testator devised his real estates to his nieces E. & J., equally between them, to take as joint-tenants and their several and respective heirs and assigns forever; and it was held they took estates as jointtenants for life, with remainder, expectant on the decease of the survivor, to them as tenants in common. See also Folkes v. Western, 9 Ves. 456; Ex parte Tanner, 20 Beav. 374; Haddelsey v. Adams, 22 id. 266.

(p) Cradock v. Cradock, 4 Jur. N. S. 626, citing Lewis d. Ormond v. Waters, 6 East, 336. In the latter case it was said it would be different if the gift were to "all and every the sons;" and see Surtees v. Surtees, L. R., 12 Eq. 400, acc. In Allgood v. Blake, L. R., 7 Ex. 355, 8 Ex. 166, the words "all and every the issue" were construed by the context to be words of limitation equivalent to "heirs of the body."

(q) Lit. s. 381; Shore v. Billingsley, 1 Vern. 482; Willing v. Baine, 3 P. W. 113; Barnes . Allen, 1 B. C. C. 181.

-in pecu

niary legacies

personalty.

whether the gift be by way of trust or not (r); and notwithstanding the disposition of the Courts of late years to favor tenancies in common, the same rule is now established as to money and residues of legacies, and residuary bequests (s), in opposition to some early authorities (t), and the doubts thrown out by Lord Thurlow in Perkins v. Baynton (u). It is observ[*1118] able, however, that in another case (v) he relied * wholly upon the words of severance, as constituting the legatees of a money legacy tenants in common; from which Lord Alvanley inferred that he had never made the observations imputed to him (x); but Lord Eldon has referred to them in a manner which leaves no doubt of the fact, although he has placed the general question beyond controversy, by stating his own opinion generally to be, "that a simple bequest of a legacy or a residue of personal property to A. and B., without more, is a joint-tenancy" (y).

The rule that a gift to two or more simply creates a joint-tenancy, applies indiscriminately to gifts to individuals and gifts to classes (z),

Rule applies to gifts to

children as a class;

- although members of the class may become en

including, it should seem, dispositions in favor of children, notwithstanding Lord Hardwicke's objection in Rigden v. Vallier (a) to apply the construction to provisions by a father for his children, on account of its subjecting them to be defeated by survivorship. It also applies to a gift to children in remainder, or quasi remainder, after a prior estate for life (b). Such a gift, it has been seen, vests the property in such of the children as are living titled at differ at the death of the testator, with a liability to be divested pro tanto in favor of objects coming into existence during the prior life estate, each of whom takes a vested interest at his own birth, and consequently, at a different time from the rest. In a conveyance at common law such a limitation, according to Lord Coke, creates a tenancy in common. Thus, "if lands be demised for life,

ent times.

(r) Aston v. Smallman, 2 Vern. 556; Bustard v. Saunders, 7 Beav. 92

(s) 1 Vern. 482, 2 P. W. 347, 529; 3 id. 113; 4 B. C. C. 15, 3 Ves. 629, 632; 6 Ves. 129; O Ves. 197; 2 Y. & C. C. C. 372.

(t) Cox v. Quantoch, 1 Ch. Cas. 238; Sanders v. Ballard, 3 Ch. Rep. 214; 2 P. W. 489; Taylor v. Shore, T. Jones, 162.

(u) 1 B. C. C. 118. Warner v. Hone, 1 Eq. Ca. Ab. 292, pl. 10, cited by his Lordship, does not apply, as it was the bequest of a leasehold house, and there were words of

severance.

(v) Jolliffe v. East, 3 B. C C. 25.

(x) See Morley v. Bird, 3 Ves. 630.

(y) Crooke v. De Vandes, 9 Ves. 204.

(z) Family," Wood v. Wood, 3 Hare, 65; Gregory v. Smith, 9 Hare, 708. "Next of kin," Withy . Mangles, 4 Beav. 358; Baker v. Gibson, 12 Beav. 191. "Issue," Hill v. Nalder, 17 Jur. 224; Williams v. Jekyll, 2 Ves. 681; Re Corlass, 45 L. J. Ch. 119, 1 Ch. D. 460.

(a) 2 Ves 258.

(b) Oates d. Hatterley v. Jackson, 2 Str. 1172; Mence v. Bagster, 4 De G. & S. 162; Kenworthy v. Ward, 11 Hare, 196; Williams v. Hensman, 1 J. & H. 546; M'Gregor v. M'Gregor, 1 D. F. & J. 63, Ruck v. Barwise, 2 Dr. & Sm. 510; Re Corlass, 45 L. J. Ch. 119, 1 Ch. D. 460 (issue); Amies v. Skillern, 14 Sim. 428, also is generally cited as in point; but if (as the V.-C. held) the fund there vested in all the children at the same moment, i. e., at the death of the tenant for life, the question did not arise: and so in Bridge v. Yates, 12 Sim. 645 and Noble v. Stow, 29 Beav. 409.

the remainder to the right heirs of J. S. and J. N., J. S. hath issue, and dieth, and after J. N. hath issue and dieth, the issues are not jointtenants, because the one moiety vested at one time, and the other moiety vested at another time" (c). But his doctrine has been usually considered as not applying to conveyances to uses (d) or to wills, a distinction thus explained by Sir W. P. Wood, [*1119] V.-C. "Under a limitation in remainder of a use to children, they are not, as they come in esse, let in with other persons who have not the whole interest; but the whole body always hold the whole interest, letting in other members of the body as they come in esse. But at common law, when the interest has once vested in remainder, the interest must vest either wholly or in a moiety; it must be either the one or the other, and there is no mode, as there is in a use, of getting the entirety into the remainderman, and then taking it out of him afterwards by the springing use as soon as the cestui que use comes in esse. Therefore, you have at once and for all to ascertain whether he would take the whole, or a moiety: the intent being that he should take a moiety and not the whole; if he took the whole it would be against the intent. The result is, he takes a moiety and holds it in common with the donee of the other moiety. A devise stands on the same footing in this respect as a conveyance to uses; and in the case of a trust a Court of Equity will follow what is said to be the reason of the rule on use and devises, viz. the intent; and the intent, as appearing by the words, is to create a jointtenancy" (e).

Thus, in Oates d. Hatterley v. Jackson (ƒ), where lands were devised to A. for life, remainder to B. and her children and their heirs; it was held that B. took as joint-tenant with her children, and that it was no objection that the estates might commence at different times. So in M'Gregor v. M'Gregor (g), where a testator gave his personal, and the money to arise by sale of his real, estate in trust to pay the income to his children living when the youngest of them should attain twenty-one in equal shares for their respective lives, and after the death of any of them, then as to an equal portion of the fund proportionate to the number of children then living, in trust for the issue of the child so dying: it was held that the issue (construed children) took as joint-tenants. And where the gift, after a life interest to A., was to all and every her child and children, and his, her, and their executors, &c., the same construction prevailed (h).

(c) Co. Litt. 188 a.

(d) Matthews v. Temple, Comb. 467, 1 Ld. Raym. 311, nom. Earl of Sussex v. Temple; Stratton v. Best, 2 B. C. C. 233; Doe d. Allen v. Ironmonger, 3 East, 533; Sugd. Gilb. Uses, 134, 135, and n. (10).

(e) 11 Hare, 196. See Samme's case, 13 Rep. 55; Shelley's case, 1 Rep. 101.

(f) 2 Str. 1172.

(g) 1 D. F. & J. 63.

(h) Morgan v. Britten, L. R., 13 Eq. 28. See also Surtees v. Surtees, L. R., 12 Eq. 400,