[From the unity of interest and possession in each of the joint-tenants results the incident of survivorship. For when two or more persons are jointly seised of any interest in lands, the entire tenancy, upon the decease of any of them, remains to the survivors, and at length to the last survivor, who shall be entitled to the whole estate (g). For one joint-tenant has not a distinct moiety from the other, but while the joint-tenancy continues. each joint-tenant has a concurrent interest in the whole. And therefore it is that, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest which the survivor originally had, is clearly not divested by the death of his companion; and no other person can now claim to have a joint estate with him, nor yet a separate interest in any part of the tenements. And as no one can now be admitted, either jointly or severally, to any share with him therein, it follows that his own interest is entire and several, and to the whole estate. The right of survivorship is called by our antient authors the jus accrescendi, because the right upon the death of one joint-tenant accumulates and increases to the survivors; or as they themselves express it, "pars illa communis accrescit superstitibus de persona in personam, usque ad ultimam superstitem." And the rule is () that no dower or curtesy can be claimed out of a joint estate. Joint-tenancy may be destroyed : 1. By partition. Thus, if two joint-tenants agree by deed to part their lands, and to hold them in severalty, the effect thereof is to make them no longer joint-tenants, for they no longer hold pro indiviso. And the right of survivorship, also, is by such separation destroyed. By the common law, all the joint-tenants might thus agree to make partition of the lands, but one of them could not compel the others (i). For this being an estate (g) Litt. ss. 280, 281. (i) Litt. s. 290. [originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without the consent of the others. But by the Partition Statutes of 1539 and 1540, (%) joint-tenants were, in case of refusal by any of them, made compellable by writ of partition to divide their lands. And though this writ, together with the other antient forms of real action, was abolished by the Real Property Limitation Act, 1833, joint-tenants are still compellable by action to make partition, or to submit to a sale and division of the proceeds (1). 2. By alienation without partition. As if one jointtenant alienes and conveys his estate to a third person; here the joint-tenancy is severed, and turned into a tenancy in common. For the grantee and the remaining joint-tenant hold by different titles, one derived from the original, the other from the subsequent, grantor (m). And so, if one of two joint-tenants releases his share to the other, the joint-tenancy is dissolved, and turned to an estate in severalty (n). But a devise of one's share by will is no severance of the jointure, for no testament takes effect till after the death of the testator; and by such death the right of the survivor, which accrued at the original creation of the estate, and has therefore a priority to the other, is already vested (0). 3. By an accession of interest. Thus, if there be two joint tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure. For such event renders the interests of the tenants dissimilar as regards the quantity of estate (p). But, if an estate be originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; (2) 31 Hen. 8, c. 1; 32 Hen. 8, c. 32. (7) Partition Acts, 1868 and 1876. (m) Litt. s. 292. (n) Co. Litt. 273 b. (p) Childs v. Wescot, (1596) Cro. Eliz. 470. [because, being created by one and the same conveyance, they are not separate estates, but branches of one entire estate (q). Whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it. But if one of three jointtenants alienes his share, the two remaining tenants, as between themselves, still hold their own shares by jointtenancy and survivorship (r). And if one of three jointtenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that share, yet the two remaining shares are still held in joint-tenancy (s). In general, it is advantageous for the joint-tenants to dissolve the joint-tenancy; since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes, however, it is disadvantageous. As, if there be two joint-tenants for life, and they make partition, this dissolves the jointtenancy; and, though before they each of them had a joint-estate at least for his own life, with a chance of survivorship in severalty, now each has an estate in a moiety only, and for his own life only. And, on the death of either, the reversioner shall enter on his moiety (t). III. An estate in coparcenary is where lands of inheritance descend from the ancestor to two or more persons (u). And this estate arises either by common law or by particular custom. It arises by common law; as where a person seised in fee simple or in fee tail dies, and his next heirs are two or more females. And these co-heirs are then called coparceners, or for brevity, parceners only (x). Parceners by particular custom are (q) Co. Litt. 182 b. (t) Co. Litt. 191 a. (x) Ibid. 242. [where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c. (y). An estate in co-parcenary resembles, in some respects, an estate in joint-tenancy, there being the same unities of title, interest and possession. But in the following respects they materially differ:— 1. Parceners always claim by descent, whereas jointtenants always claim by purchase. For, if two sisters purchase lands, to hold to them and their heirs, they are not parceners, but joint-tenants (2). And hence it likewise follows, that no lands can be held in coparcenary but estates of inheritance, which are of a descendible nature; whereas not only estates in fee and in tail, but for life or for years, may be held in joint-tenancy. 2. There is no entirety of interest among coparceners, although there is unity; but each of them is properly entitled to a distinct share (a). And, therefore, there is no jus accrescendi or survivorship between them; but each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and are held pro indiviso, so long are the tenants therein, whether male or female, called parceners. 3. Though the interests of coparceners accrue by the same title, yet they may accrue at different periods. For if a man hath two daughters, to whom his estate descends in coparcenary, and one dies before the other, the surviving daughter and the heir of the other, or, when both are dead, their two heirs, are still coparceners (b), the estates vesting in each at different times, though it be the same quantity of interest, and held by the same title. And so there need be no unity of time among them. 4. And lastly, though persons related in equal degree to the ancestor are entitled in equal shares, yet as their heirs (y) Ibid. s. 265. (z) Ibid. s. 254. (a) Co. Litt. 164 a. [will represent them, or stand in their place, there is no necessary equality of interest among co-parceners. As if a man die leaving four granddaughters, three of them the issue of an elder daughter, and one of them the issue of a younger daughter, all four shall inherit; but the daughter of the younger shall take a moiety, that is, as much as all the other three (c). The modes of dissolving an estate in coparcenary are: 1. By partition. Parceners are so called, saith Littleton, because they may be constrained to make "partition" (d). And he mentions many methods of making it, four of which are by consent and one was by compulsion (e). The first is, where they agree to divide the lands into equal parts in severalty. The second is, when they agree to choose some friend to make partition for them, and then the sisters shall choose each of them her part according to seniority of age, or otherwise, as shall be agreed. This privilege of seniority is personal; for, if the eldest sister be dead, her issue shall not choose first, but the next sister. But if an advowson descend in coparcenary, and the sisters cannot agree in the presentation, upon the first turn the eldest and her issue,-nay, her husband, or her assigns,-shall present alone, before the younger, to whom the next turn will in that case belong (f). For although the agreement to make partition is merely personal, yet this latter privilege, of presenting to the living, arises from the act of the law, and is annexed not only to the person of the eldest, but to her estate also. The third method of partition by consent is, where the eldest divides, and then she chooses last; the rule of law being, cujus est divisio, alterius est electio. (c) Ibid. 164 b; and see Cooper v. France, (1850) 19 L. J. (N. S.) Ch. 313; James v. Dickinson, [1897] 2 Ch. 509. (d) Litt. s. 241. (e) Litt. ss. 243-246. |