[designation of the giver, per formam doni; it matters not, therefore, how unequal this distribution may be. Also no lands but such as are given in frankmarriage, shall be brought into hotchpot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage portion (g). And, therefore, as gifts in frankmarriage are fallen into disuse, the law of hotchpot] would hardly have been worth notice, [had not this method of division been revived and copied by the statute "for distribution of personal estates," which we shall hereafter consider at large (h).] The modes of dissolving an estate in coparcenary are as follows:-By partition (i). [Parceners are so called, saith Littleton (k), because they may be constrained to make "partition;" and he mentions many methods of making it, four of which are by consent and one by compulsion (1). The first is, where they agree to divide the lands into equal parts in severalty, and that each shall have such a determinate part. 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. The privilege of seniority is in this case 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 (m). [And the reason given is, that the former pri (g) Litt. s. 275. (h) As to the Statute of Distributions, vide post, bk. 11. pt. 11. c. VII. (i) Though the partition dissolves the coparcenary, the parceners are still in by descent, Doe d. Crosthwaite v. Dixon, 5 Ad. & El. 834. (k) Litt. s. 241. (1) Ibid. ss. 243-264. (m) Co. Litt. 166 b, and see note (2) by Harg.; Walker's case, 3 Rep. 22; Buller v. Bishop of Exeter, 1 Ves. sen. 340. [vilege, of priority in choice upon a division, arises from an act of her own, the agreement to make partition; and, therefore, is merely personal: the latter, of presenting to the living, arises from the act of the law; and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall choose last; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is where the sisters agree to cast lots for their shares. And these are the methods by consent.] That by compulsion used to be, where one or more sued out a writ of partition against the others; whereupon the sheriff went to the lands, and made partition thereof by the verdict of a jury, and assigned to each of the parceners her part in severalty. This writ, however, being now abolished, partition can at present be compelled only by bill in equity, as in the case of joint-tenancy (n). [But there are some things which are in their nature impartible. The mansion-house,] for example, and certain hereditaments of an incorporeal kind [shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance; or if that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowson (o).] Besides the method of partition, the estate in coparcenary may be dissolved, by the alienation of one of the parties, which destroys the unity of title; or by the whole at last descending to and vesting in a single person, which brings it to an estate in severalty (p). IV. A tenancy in common is where two or more hold the same land, with interests accruing under different titles; or accruing under the same title, other than descent (q), (n) Vide sup. p. 349. (0) Co. Litt. 164 b, 165 a. (9) Where several parties take under the same title by descent, accruing at different periods, they hold in coparcenary. Vide sup. p. 351. (p) 2 Bl. Com. 191; Doe v. Dixon, 5 Ad. & El. 839. but at different periods; or conferred by words of limitation, importing that the grantees are to take in distinct shares (r). In this tenancy there is not necessarily any unity of title; for one may hold by descent and the other by purchase, or the one by purchase from A. and the other by purchase from B.; nor any unity in the time of vesting, for the one's estate may have vested fifty years ago, and the other's but yesterday; nor any necessary similarity or equality of interest, for one tenant in common may hold in fee-simple, and the other in tail or for life; one may be entitled to two-thirds, and the other to one-third. Nor is there any entirety of interest, for each is seised or possessed of a distinct (though undivided) share; from which also it follows that there is no survivorship(s). The union consists only in this, that they hold the same land promiscuously. [Tenancy in common may be created, either by the destruction of the two other estates in joint-tenancy and coparcenary, or by special limitation in a deed.] By the destruction of the two other estates, is here meant such destruction as does not bring them into estates in severalty, but puts an end only to the jointure or coparcenary: [as if one of two joint-tenants in fee alienes his estates for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation (t). So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances (u). If one of two parceners alienes, the alienee and the remaining parcener are tenants in common(x); because they hold by different titles, the parcener (r) As to tenants in common, see Co. Litt. 188 b-201 a; Murray v. Hall, 7 C. B. 441. (s) Land, however, may be given to two persons in such manner as to make them tenants in common with benefit of survivorship. (Doe v. [by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the life estate, but they shall have several inheritances (y); because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten (z): and in this, and the like cases, their issues shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those too not titles by purchase, but descent. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made,] but the undivided tenancy continues, it is turned into a tenancy in common. [A tenancy in common may also be created by express limitation] in a conveyance: but here care must be taken to insert words implying that the grantees are to take distinct, though undivided, shares; for a grant without such words would give a joint estate. And it is laid down in our books that [the common law is apt in its constructions to favour joint-tenancy rather than tenancy in common (a); because the divisible services issuing from land (as, for example, rent,) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy,-as they must necessarily be upon a tenancy in common.] Accordingly, [if land be given to two, to be holden the one moiety to one, and the other moiety to the other, this is an estate in common (b); and, if one grants to another half his land, the grantor and grantee are also tenants in common (c);—because, as has been before observed (d), joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed, that it is impossible that they should take a joint interest in the whole (y) Doe v. Green, 1 H. & H. 314; vide sup. p. 346. (z) Litt. s. 283. (a) Fisher v. Wigg, Salk. 392. (b) Litt. s. 298. (d) Vide sup. p. 346. [of the tenements.] Yet on the other hand, an estate given to A. and B. equally to be divided between them, in common law conveyances, hath been said to be a joint-tenancy (e), for it implies no more than the law has annexed to that estate, viz. divisibility (f). Such a limitation however in wills, and in conveyances founded on the statute of uses, (of which we shall have occasion to treat hereafter,) is certainly a tenancy in common (g); for though the tendency of the antient law was to favour a joint-tenancy, the leaning in later times has been the other way (h); the right of survivorship being often inconvenient and harsh in its effect. And therefore in wills and the conveyances above referred to which came into use in comparatively modern times and where a more liberal construction is in some respects allowed, than in the case of a common law conveyance—a tenancy in common will be created by words which might operate in a conveyance not founded on the statute, as a limitation in joint-tenancy. We may take this opportunity of remarking, that when lands are given to two or more as tenants in common, it frequently happens that a particular estate is limited to each of the grantees in his share, with remainder over to the other or others of them-as if a man give lands to his two children as tenants in common in tail, and direct that upon failure of the issue of one of them his share shall to the other in tail, and vice versa. as these are called cross remainders, because each of the grantees has reciprocally a remainder in the share of the other; and it is a rule respecting them, that in a deed they can be given only by express limitation, and shall never be implied (i); though it is otherwise with respect to wills, (e) 1 Eq. Cas. Abr. 291. (ƒ) Fisher v. Wigg, 1 P. Wms. 17. (g) See Co. Litt. by Harg. 190 b, n. (4); 1 Sand. Us. 126; Ratcliffe's case, 3 Rep. 59 b; 1 Ventr. 32; Goodtitle v. Stokes, 1 Wils. 341. go over Such ulterior estates (h) Joliffe v. East, 3 Bro. C. C. 25; Fisher r. Wigg, 1 P. Wms. 14. (i) 1 Saund. by Wms. 185, n. (6); Cole v. Levingston, 1 Vent. 224; Doe v. Worsley, 1 East, 416. |