estate in joint-tenancy may be dissolved or destroyed. And this may be done:-1. By partition. Thus, if two joint-tenants agree to part their lands, and hold to them in severalty, and execute a proper deed for the purpose (x), they are no longer joint-tenants, for they no longer hold promiscuously. And it follows that the right of survivorship also, is by such separation destroyed (y). [By common law all the joint tenants might agree to make partition of the lands, but one of them could not compel the other so to do (z); for this being an estate 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 a similar universal consent.] But afterwards, [by the statutes 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, joint-tenants, either of inheritances or other less estates,] were, in case of refusal by any of them, [compellable by writ of partition to divide their lands,] and though this, together with other antient forms of action, has been lately abolished (a), one joint-tenant is still entitled to file his bill in equity against the other for a partition (b): a course of proceeding to which it had been long usual to resort, and which in practice had quite superseded the antient writ (c). 2. The jointure may be destroyed 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 tenancy in common (d); for the grantee and the remaining joint-tenant hold by different titles,-one derived from the original, the other from the subsequent, grantor; though, till partition made, the undivided tenancy continues.] And so if (x) By 8 & 9 Vict. c. 106, s. 3, a partition must be by deed. (y) Co. Litt. 188 a, 193 a. (z) Litt. s. 290. (a) By 3 & 4 Will. 4, c. 27, s. 36. (b) By 4 & 5 Vict. c. 35, s. 85, recourse to the Court of Chancery may also be had to compel a partition in respect of copyhold and customary estates. (c) See Co. Litt. by Harg. 169 a ; n. (2); 1 Fonb. Tr. Eq. 18. (d) Litt. s. 292. one of two joint-tenants releases his share to the other (e), the joint-tenancy is dissolved, and turned to an estate in severalty. [But a devise of one's share by will is no severance of the jointure,] and jus accrescendi præfertur ultimæ voluntati (f): [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 (g), is already vested (h).] 3. The jointure may also be destroyed 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 (i),] for it renders their interests dissimilar as regards the quantity of estate; though, [if an estate is 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; because, being created by one and the same conveyance, they are not separate estates (which is requisite in order to a merger), but branches of one entire estate (k).] It is proper to add, that [whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it (l). Yet, if one of three joint-tenant alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship (m); and if one of three joint tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure (n). (e) See Avery v. Cheslyn, 3 Ad. & El. 75. (f) Co. Litt. 185 b. And even where the joint tenant so devising survives his companion, the devise is void. Swift v. Roberts, 3 Burr. 1488; Ambl. 617. (g) Co. Litt. 185 b. (h) Litt. s. 287; 3 Burr. 1488. (i) Cro. Eliz. 470. (k) Wiscot's case, 2 Rep. 60; Co. Litt. 182 b. (2) "Nihil de re accrescit ei, qui nihil in re quando jus accresceret habet."-Co. Litt. 188 a. (m) Litt. s. 294. [In general it is advantageous for the joint-tenants to dissolve the jointure; 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 to dissolve the joint estate: as if there be two joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for his own life and the life of his companion, now each has an estate in a moiety only, for his own life merely; and on the death of either, the reversioner shall enter on his moiety (0).] III. [An estate held in coparcenary (p) is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law or particular custom. 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, his daughters, sisters, aunts, cousins, or their representatives; in this case they shall all inherit, as will be more fully shown, when we treat of descents hereafter; and these co-heirs are then called coparceners, or, for brevity, parceners only (q);] though in some points of view the law considers them as together making only one heir (r). [Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c. (s).] An estate in coparcenary resembles, in some respects, that in joint-tenancy, there being the same unity of title and similarity of interest. But in the following respects they materially differ:-1. Parceners always claim by descent, whereas joint-tenants always claim by the act of parties. [Therefore, if two sisters purchase lands, to hold to them and their heirs, they are not parceners, but joint (0) 1 Jones, 55; Co. Litt. 191 a. (p) As to this estate, see Co. Litt. 163 a-180 a. (q) Litt. ss. 241, 242. (r) Co. Litt. 163 b, 164 a; Vin. Ab. Parceners (Q); and see R. v. Bonsall, 3 B. & C. 173. (s) Litt. s. 265. [tenants (t); 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 years, may be held in jointtenancy.] 2. There is no entirety of interest among coparceners. They are properly entitled each to a distinct share (u), and of course there is no jus accrescendi or survivorship between them, for each part descends severally to their respective heirs, though the undivided tenancy continues. And as long as the lands continue in a course of descent, and are held promiscuously, so long are the tenants therein, whether male or female, called parceners. 3. Though the interest 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 parceners (x); the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title.] 4. And lastly, though persons related in equal degree to the ancestor are entitled in equal shares, yet as their heirs will represent them, or stand in their place, there is no necessary equality of interest among parceners. Thus, if a man die leaving four grand-daughters, three of them the issue of an elder daughter, and one of a younger, all four shall inherit; but the daughter of the younger shall take as much as all the other three (y). With respect to an estate in coparcenary, the following rule deserves notice: [that if one of the daughters has had an estate given with her in frankmarriage by her ancestor -which we may remember was a species of estates tail, freely given by a relation for advancement of his kinswoman in marriage (z),—in this case, if lands descend from (t) Litt. s. 254. (u) Co. Litt. 163, 164. (x) Ibid. 164, 174. (y) Co. Litt. 164 b. 66 66 [the same ancestor to her and her sisters in fee simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with the rest of the lands descending (a). This mode of division was known in the law of the Lombards, which directs the woman so preferred in marriage and claiming her share of the inheritance, “mittere in confusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum" (b). With us it is denominated bringing those lands into hotchpot (c); which term shall be explained in the very words of Littleton (d); "It seemeth that this word, hotchpot, is in English a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together." By this housewifely metaphor our ancestors meant to inform us that the lands, both those given in frankmarriage and those descending in fee simple, should be mixed and blended together, and then divided in equal portions among all the daughters (e). But this was left to the choice of the donee in frankmarriage; and if she did not choose to put her lands into hotchpot she was presumed to be sufficiently provided for, and the rest of the inheritance was divided among her sisters. The law of hotchpot took place then only, when the other lands descending from the ancestor were fee simple; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given into hotchpot (f). And the reason is, because lands descending in fee simple are distributed by the policy of law, for the maintenance of all the daughters; and if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more; but lands descending in tail are not distributed by the operation of the law, but by the (a) Bracton, 1. 2, c. 34; Litt. s. 266 to 273. (b) L. 2, t. 14, c. 15. (c) Britton, c. 72. VOL. I. (d) Litt. s. 267. (f) Ibid. 274. A A |