371 was a case in my Lord Bridgman's time of Davis | 370 ute *abolished it, (31) was the most and. It was a devise to two persons and their remarkable incident of a joint-tenheirs, and one of them dies during the life of the testator: and the question was, whether the surancy, *peculiar to it, and considered vivor should take the whole or not; and it was held therefore its distinguishing charache should: which shews plainly, it was a will and a disteristic. (32) But the suggestion, though position from the time of making it." Fitzg. 231, Bunker v. Cooke: (which notwithstanding the general ill plausible, appears to be mistaken. Even repute of the book, is affirmed by Sir Thomas Par in the cases which have been mentioned, of ker, in a letter to Lord Hardwicke, published in 1 West's Hardw. 509, to be an authentic report, fur- the death of a devisee or legatee between nished by Mr. D'Anvers;) 11 Mod. 129; Gilb. Dev. 135, the making of the will and the period of S. C. in totidem verbis. And that it was his deliberate vesting, inasmuch as he never had an opinion appears from the fact, that this exposition actual interest, and never was in fact a of the doctrine, on which the case he quotes was founded, was used by him as an argument in sup- joint-tenant,-it is obvious that the jus acport of the judgment he was then delivering. But crescendi (33) could not operate directly; it may be observed, 1. that the argument was cumu- and that it did not indirectly is, if not oblative and unnecessary, since the only point there determined was, that the testator had not power to vious, at least susceptible of convincing devise after-acquired real estate. See Ram. on Leg. proof. For it was not only where some of Judgm. ch. 5. 2. It proves too much, since, if it were the devisees or legatees died after the date true in the extent evidently contemplated, a lapse by reason of death after the date of the will could of the will, that the others, by the common not in any case, occur.-3. It is wholly different law, took the whole, in case the gift was to from, if not also contradictory to, Lord Chief Justice Bridgman's own exposition of the grounds of them as joint-tenants; but the same thing his decision, as appears both from the imperfect re-occurred also where some of them were dead port in Carter 3-6, Davies v. Kempe; and from the before the will was made; (34) and not only excellent report by Bridgman himself, since published from his MSS. Orl. Bridgm. 384-390, Davy v. where some of the persons nominated failed Kempe.-4. It conflicts with the unanimous opinion to take in consequence of death, but also of the twelve judges, in the case of Ashburnham v. where such failure happened either from Bradshaw, (including Denton, J. who did not hear counsel for all the parties, and for that reason only their having never existed at any time; did not sign the certificate publicly sent to Lord (35) or from their incapacity, though living, Hardwicke.) as appears by a written communica (36) or refusal (37) to take; or from the tion from one of them, published from Lord Hardwicke's papers, 1 West's Hardw. 507-508-Their doctrine was, "that a will was [is] a revocable dis- King, 19, Barker v. Giles; 11 Mod. 394, S. C.-Mr. Jarposition in praesenti, to take effect in futuro, and that man espouses both opinions; for after explaining there are two times a will has respect to, the time the doctrine agreeably to the sentiments of Bridgof making, and the time of its taking effect by the man, King and Hardwicke, he puts it, in a subdeath of the testator. The time of making the will sequent part of his work, on the other ground. concerns the capacity of the giver. [which was the Compare 1 Jarm. Wills, 295; and 2 Jarm. Wills, 167. only point to be considered in Bunker v. Cooke:] The true explanation of the discrepancy seems to the time of its taking effect, by the death of the tes- be, that the former of these passages was written tator, concerns the capacity of the taker;" which is for the work just now quoted, while the latter was the only thing to be considered in every question of merely transferred from another work published lapse.-5. And lastly, it is opposed to the decision of several years before. 2 Jarm. Pow. Dev. 373-374. If Lord Hardwicke, in the case of Buffar v. Bradford, he thought that the question was of no practical 2 Atk. 220; where the testator gave a certain part of importance in England, he seems to have been mishis personal estate to his niece B. and the children taken, for reasons that will appear in the sequel: born of her body.-there being none at the date of but certainly here, where the jus accrescendi has the will. Afterwards she had a son, and then died been abolished, it is a point of great consequence. before the testator. And Lord Hardwicke said the (31) See the paragraph of the text corresponding son. "being born in the lifetime of the testator, to note 85. would have taken with his mother as joint-tenants, (32) Co. Litt. 181 a: 2 Blackst. Comm. 183; 2 Woodd. if she had lived; as she is dead, he shall take the Lect. 125; 2 Prest. Abstr. 57. The passages here whole by way of remainder;"*-though, it is observ-quoted relate to the incidents of estates, which beable, he and his mother were not co-existent either long to them ex institutione legis. Ex provisione homat the date of the will, or at the death of the testa-inis, by means of cross-remainders, certain moditor, and (what makes the opposition to the opinion fications of uses and trusts, and executory devises of Holt more pointed,) the legatee, who took all, was and bequests, survivorship may be made incident to that one of the (so-called) joint-tenants, who was a tenancy in common. 1 Thom. Co. Litt. 774, note I: not in being when the will was made. It is true, 1 Saund. Rep. 185, note 6; 2 Jarm. Wills, 457-488. And that in such a case the result would now be (prob- this explains the first part of a dictum of Bayley, J. in ably) the same even if the gift had been to them as Doe v. Abey, 1 Maule & S. 435; the last part of which tenants in common; but that would be by force of gives an intimation of the ground pretty fully disthe doctrine concerning gifts to classes, which had cussed in the sequel here: "A tenancy in common not been established in the time of Lord Hardwicke, with benefit of survivorship is a case which may and was not settled even so late as the times of Lord exist, without being a joint-tenancy; because surThurlow and Lord Loughborough: (see note 11:) vivorship is not the only characteristic of a jointand moreover the actual ground of the decision, as tenancy." furnished to us by the report, proves what the opinion of Lord Hardwicke was on the point we are now considering. See further concerning his opinion Ambl. 136, Humphrey v. Tayleur: 1 Dick. 161. S. C. and more and stronger objections to the opinion of Holt, in the text. Yet Willes, C. J. appears to have agreed with him. Willes 295, Doe v. Underdown; Andr. 2d edit. Append. ix. S. C. Lord King, however, was on the other side. Sel. Cas. ch. temp. (33) See the paragraph of the text corresponding to note 85. (34) Bac. Abr. tit. Legacies & Devisees, L. 4. vol. 5, p. 115, edit. Lond. 1832; vol. 6. p. 159, edit. Philad. 1844. (35) Orl. Bridgm. 387, 388, Davy v. Kempe: Carter 5, S. C. (36) 2 Ves, sen. 645, Alexander v. Alexander. (37) Godb. 77, Bonefant v. Greenfield; 1 Leon. 60; Cro. Eliza. 80 S. C. (compared with 11 East 288, Denne v. Judge:) 3 East 410, Hawkins v. Kemp: 2 Swanst. 365, Nicholson v. Woodsworth; 5 Madd. 435, Adams v. Taunton: 3 Barn. Ald. 31, Townson v. TickC.: 3 Paige 420, in re Stevenson; 5 Paige 46, King v. Donnelly; 559, in re Van Schoonhoven: 5 Serg. & R. 523, Jones v. Maffet. How such a refusal is to be made with effect, is quite another question; as to which, besides the references above and in note 46. see Fitzh. Abr. tit. Joyntenauncye, pl. 9; Bell. Ric. 2 fol. 215, pl. 5, S. C. Bro. Abr. tit. Agreement & Disagreement. pl. 8; tit. Joyntenauncie, pl. 57; tit. Waiver des choses pl. 41; (in all which places what The meaning of this expression, which is altogether different from the ordinary technical sense of the term remainder, may be gathered from a sim-ell; 2 Bingh. N. C. 70, Begbie v. Crook; 2 Scott 126, S. ilar expression, in the following extract from Dr. Strahan's translation of Domat's Civil Law, p. 2, b. 3. tit. 1. sect. 9. art. 11, vol. 2, p. 95, edit. Lond. 1722. "If a testator bequeaths one and the same thing to two or more legatees, without any mention of portions, as if he gives and bequeaths a house to such a one and such a one, if one of them cannot, or will not. receive his portion, it remains to those who have taken, or shall take, theirs." 372 373 of will's being inoperative as to them, fore the inception, (42) or between it and whether for deficient *certainty of the completion, (43) of the conveyance, or description, (38) or in consequence of unborn, (44) or otherwise incapable; (45) a partial revocation, effected either by or by their refusal to accept; (46) codicil, (39) or by obliteration. *(40) Nor was the doctrine confined to wills and testaments.-With an analogy that is perfect, it extended also to conveyances inter vivos, and in them prevailed equally whether the failure of the estate to vest in some of the nominated feoffees, grantees, or donees was caused by their incapacity to take, as being either dead, (41) whether be is said on this point rests on the authority of Brooke (38) Ambl. 175, Dowset v. Sweet; 1 Ves. Jun. 414, S. C. cited. In this case Lord Hardwicke is reported to have said: "It is a joint devise; and in such case. by whatever cause it happens one of the joint tenants cannot take, the other shall have the whole. (39) Ambl. 136, Humphrey v. Tayleur; 1 Dick. 161: Bac. Abr. tit. Wills & Testaments, G. I.; vol. 5, p. 531, 4th edit. tit. Wills and Testaments, H. 1; vol. 8, p. 500, edit. Lond. 1832: vol. 10, p. 555, edit. Philad. 1846: S. C. 2 Ves. sen. 645, S. C. cited.-It may be objected, that this case and those cited in the next succeeding note are not to the purpose, because, under the circumstances, the wills ought to have been read as if the names removed had never been inserted, and so the effect would not have been different, if the wills had created a tenancy in common. But such an objection admits of a two-fold answer.-1. Whatever may be the case in England since the stat. 7 Wm. 4, & 1 Vict. ch. 26, (see 1 Collyer 416. Harris v. Davis:) in point of fact the law was not so, at the respective dates of the decisions quoted. In Creswell v. Cheslyn, 2 Eden 123; Ambl. 136, Blunt's note 1: 3 Bro. P. C. 2d edit. 246: the testator gave the residue of his personal estate to three out of his five children, share and share alike, as tenants in common and not as joint-tenants:" and by a codicil revoked one of them from being a residuary legatee, and gave her instead a pecuniary leg acy: she afterwards died in the lifetime of the testator; and it was held by Lord Northington, whose decree was affirmed in the House of Lords, that the third of the residuum originally bequeathed to her did not belong to the other two residuary legatees, but should go to all the four surviving children of the testator equally, according to the statute of distributions. Which decision, though disapproved by Sergeant Hill, (2 Eden 126, n.) has been since approved by Sir Edward Sugden, when Chancellor of Ireland. in Shaw v. McMahon. 4 Dr. & War. 431, 438; and by Vice Chancellor Knight Bruce, in Harris v. Davis, 1 Collyer 416; and followed by Judge Story in a case precisely similar. 3 Mason 486, Brownell v. De Woolf. See also 1 Dana 480, Floyd v. Barker. And a like decision was made by Sir Thomas Plumer. where the testator drew his pen through the name of one of his residuary legatees, and by a codicil declared that he had rased her name out of his will with his own hand. 1 Swanst. 566, Skrymsher v. Northcote; 1 Wils C. C. 218, S. C-2. Whatever in point of fact the law of that time may have been, it was not upon any such ground, that the decisions were placed by those who made them. See particularly the reported reasons of Lord Hardwicke, in Humphrey v. Tayleur. (40) 3 Bos. & P. 16, Larkins v. Larkins; 4 East 419, Short v. Smith. (41) Whether civilly, (Y. B. 3 Hen. 6, 23, Herle v. Noble: 14 Hen. 8, 29, pl. 7. Anon.; Bro. Abr. tit. Non- livery of seisin unto two men, and one of them die Grimesby's case; 18 Edw. 3, 59, pl. 21, Anon. (semble create a ten ley's case; Orl. Bridgm. 388, Davy v. Kemp: 394-395, (45) Whether absolutely. (1 Rep. 100, b-101, a. ShelShelton v. Bide: Shepp. Touchst. 71, 82, 235, Prest. edit.) or relatively; as if a man makes a feoffment to the stranger in the name of both, it will be to a stranger and to his own wife, and makes livery good to the stranger, and void as to the wife:" (Critica Juris Ingeniosa, 133, edit. 1661; Bract. lib. 2 cap. 5, sect. 6, fol. 13, a. edit. 1569; Fleta, lib. 3, cap. 4, sect. 6, pag. 180, edit. 1685;) and the stranger will 220.-In this case, if the feoffment (supposed to be take the whole. Perk. sect. 203: Shepp. Touchst. made by deed.-see note 48;) had been made to the stranger. and another who was capable of taking from the feoffer, the livery to one would have constituted them both joint-tenants, in the absence of any disagreement or disclaimer on the part of the feoffment to whom livery was not made in his own person. (letter R.) pl. 9; 9, (letter T.) pl. 2. 4: 91, (letter L.) 2 Roll. Abr. 8, (letter Q.) pl. 4; pl. 5; Bac. Abr. tit. Feoffment, B. I. other hand, if the feoffment had been made in And on the terms which were appropriate to ancy in common, he, to whom livery was made. would not have taken, in consequence of his cofeoffee's incapacity, more than the share which would person capable of taking. 1 P. Wms. 18, Fisher v. have been his had his co feoffee been a Wigg: 1 Ld. Raym. 628; 1 Salk. 391: 12 Mod. 301; Comyns 92, S. C. 3 Prest. Abstr. 84. See also Litt. sect. 299; Shepp. Touchst. 71, 82, Prest. edit. 6, 53, Duke of Warwick v. Bishop of St. Davids: 4 (46) Fitzh. Abr. tit. Disclayme, pl. 23; Y. B. 33 Hen. Leon. 207, Wheeler: 2 Keb. 774. S. C. 2 Freem. 13. pl. 11, b. Anon.; pl. 332. Anon. 1 Ventr. 130, Smith v. 4 Ves. 97, Crewe v. Dicken; Shepp. Touchst. 70, 285, Prest. edit. 2 Prest. Abstr. 225-228; 3 Prest. Abstr. 104-107. tenancy in common. Ibid.-In Treadwell v. BulkSecus where the terms of the deed create a ley, 4 Day 395, a deed was made by a debtor to six of his creditors, of whom one refused to take any benefit of it; and the question was whether the whole vested in the other five, or that one sixth part remainded in the grantor. The report does not state distinctly the terms of the deed, but from ments of counsel it may be inferred that in England what appears of it; and from the reported arguit would have created a joint-tenancy. court decided, that the effect was the same, as it Yet the 374 by an original defect of the instrument, as either containing of them 375 *no sufficient description, (47) or being not adapted to work a transfer to them, while yet it would accomplish a would have been in England if the deed had created a tenancy in common; in other words, that one sixth part of the estate remained in the grantor. It does not appear that any statute of Connecticut was applicable to the case, and the contrary would seem to have been the fact. See 3 Griff. Law Reg. 75; 1 Swift's Syst. 271-273. But (as will be seen by adverting to some observations on the law of Curtsey, published in the Pennsylvania Law Jour nal, vol. 5, pp. 483-486,) the courts in Connecticut have, without assistance from the legislature, modelled the law of real property there very much at their own discretion, with little regard to the common law of the mother country. As to this particular subject of joint estates, Judge Swift remarks, (1 Swift's Syst. 272:) In England on the death of either of the joint-tenants, his right remains and goes to the surviving tenants. But in this state we have never adopted this odious and unjust doctrine of survivorship." And from 1 Root 48. Phelps v. Jepson, it appears that the right of survivour has been exploded there. Indeed it could never exist, unless by positive enactment, where the effect of a joint conveyance was such as that of the deed in Treadwell v. Bulkley was said to be by Reeve, J. with whom the other Judges concurred. According to him, if such a deed be made to two persons, they take each one half: if to three, they take each one third: and the dissent of one cannot increase the proportions of the others. The legal operation of such deed is, to give each one third, and no more; so much so, as if it had been detailed at length in the deed." The case is in conflict with all the authorities cited at the beginning of this note, and with those (strictly analogous) cited in note 37; of which not one was there brought to the notice of the court: and it is at war also with the case of Trask v. Donoghue, 1 Aik. 370, not before cited: I mean that it is so, upon the ground of adjudication actually taken by the court. Perhaps upon another ground, presented in the reported argument of the counsel for the successful party, the same result in the particular case might have been attained. It seems, therefore, to be not an authority, on this point, in Virginia. Yet it agrees with the civil law, according to the common opinion. See note 93. 376 transfer to the rest; (48) or by a subsequent (48) "If one joint-tenant enfeoffs his companion and a stranger, the stranger takes all "Critica Juris Ingenoisa, 134, edit. 1661; Co. Litt. 335, n.-"If a man intendeth to make a feoffment by parol to A. and B., and he and B. come upon the land, A. being absent, and make livery to B. in the name of both B. and A. and to their heirs, this shall enure only to B.:" (Co. Litt. 359: a.: 49. b; Shepp. Touchst. 211. Prest. edit.) and shall vest the whole estate of the land in him. Y. B. 10 Edw. 4. 1 Case's case: Bac. Abr. tit. Feoffment, B. 3.-" If a covenant be made to stand seised to the use of a person related to the covenantor by blood or marriage and of a stranger, the whole will vest in the relation," (2 Sand Us. & Tr. 82, 4th edit.) and nothing in a stranger, 2 Roll. Abr. 783, pl. 4. Smith v. Busbie: Cro. Car. 529; W. Jon. 418, S. C.-an instance of this kind might arise under a will. attested by one of several joint devisees or legatees. 4 Gratt. 103, Croft v. Croft. (49) Ambl. 138, Humphrey v. Tayleur. (50) See the paragraph of the text corresponding to note 85. (51) This is what judges of the greatest eminence have, at the moment of their acting upon the doctrine. assigned as the ground of it; and, whatever speculations may have been indulged concerning it under other circumstances. in no case wherein it was the actual basis of the decision has it been put on any other. In the leading case of Davy v. Kemp, Orl. Bridgm. 384; Carter 2: Sir Orlando Bridgman said: John [the devisee who alone survived the testator] is by the will to take.-and, being a jointtenant, he is a taker of the whole, though not solely. -The testator devised the whole to both, and not a (47) If an estate in possession be made to one and the right heirs of J. S. [who was then alive,] the heir of J. S. after his death shall have nothing [thereby.] but he, that is in esse to take at the time. shall have all." 1 Rol. Rep. 325, Herbert v. Binnion, per Coke. C. J. Yet, in such case, the person who proves in event to be the heir of J. S. may be living at the time of the conveyance, and every way capable of taking, if he were only described so as to be ascertainable. Whoever shall verify the above reference will find Sir Edward Coke saying. in the same connexion, "if there be a lease for life, remainder to the right heirs of J. S. and J. D., if J. S. die before J. D.. yet his heir, shall have but a moiety:" (according to the book: but as it is stated 14 Vin. 133. pl. 9, Lease for life to A. remainder to the right heirs of J. S. and J. D., if J. S. dies, and then A. dies, living J. D., yet the heir of J. S. shall take but a moiety;") of which no explanation is there given; and at first it may seem to be opposed to the doctrine stated in the text. But a satis-moiety to each."-In Humphrey v. Tayleur, Ambl. factory solution is furnished by what he tells us elsewhere. "If lands be demised fer life, 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 joint-tenants, because the one moiety vested at one time, and the other moiety vested at another time." Co. Litt. 188, a. S. P. 5 Rep. 8. a. Windham's case: 13 Rep. 56-57, Sammes's case: 2 Roll. Ahr. 89, (letter G,) pl. 1: 91, (letter L.) pl. 1: 2 Blackst. Comm. 181: Watk. Convey. 87-88. Prest. edit. 1 Lom. Dig. 475-476. See 1 Ld. Raym. 311, Sussex v. Temple; Comb. 467, S. C.; 2 Bro. C. C. 233, Stratton v. Best; 4 Sim. 129, Woodgate v. Unwin: 2 Jarm. Wills, 159, 161. If, however, a gift be made to one for life, remainder to the right heirs of two others, who are both at the time of making the gift dead. there the remainder is in jointure, and survivour [by the common law] will hold place." Bro. Abr. tit. joint-tenants, jointour, and survivour and Joynt Actes, pl. 12. See Y. B. 88 Edw. 3. 26, a, b, Anon, Butler's Fearne, 311-312. 136; 1 Dick. 161; Lord Hardwicke explained the doctrine in the same manner. And (what is remarkable) both he and Bridgman, in the cases before them respectively, adverted to the jus accrescendi for if shewing that it did not furnish an unanswerable the purpose, not of building any thing upon it, but objection.-I close my citations on this head with mentioning that one of the greatest real property lawyers of the present age has stated his opinion to the with a reference to Roper on Leg. 121, 1st edit. same effect; (Shepp. Touchst. 71, Prest. edit.) and where a like exposition will be found. (52) See the latter part of note 26, and note 77. (53) No subject in our law has been involved by the writers upon it, collectively considered, in more confusion and perplexity, than the doctrine of joint-tenancy. The task of extricating it requires so large a space, that I am compelled to make it the subject of a suppletory note, which will be found at the end of the text. 378 It is true, that from the nature of a joint that the statute takes away totally the last estate, by the common law, these further of these consequences, and modifies consequences flow: that (although it is in *the second in so far as the jus acthe power of any one of the joint-tenants, crescendi is involved in it. (59) at his pleasure, to destroy the joint estate But it does no more. (60) It does not as to himself, and as to a portion of the annihilate the legal entity called a joint thing which is, till such destruction, estate, so as to prevent any such estate 377 the subject of it; (54) *yet)-1. as from vesting; (61) nor does it destroy the long as the joint estate endures, each joint estate forthwith after it has vested. joint-tenant holds, in the same manner as (62) On the contrary, it permits the estate at first he took, conjointly with the rest the to subsist as joint, (63) with all its entire estate, separately nothing; (55)—and 2, when some out of many joint-tenants die, each of the survivors continues to hold, in like manner, conjointly with the rest the entire estate, separately nothing; (56)-and 3, when the joint-tenancy is at length terminated by the deaths of all but one, the last survivor keeps the entire estate,-of which he is then become sole tenant, (57) and no person but himself has any interest in it whatever. (58) And it is also true (54) 2 Blackst. Comm. 184-186; Wms. Real Prop. 103. (55) 2 Blackst. Comm. 182-183. (56) Litt. sect. 280. (57) 1 Prest. Est. 137, 2d edit. cited pages I find nothing corresponding in Fleta. Since this note was written a remarkable confirmation of the construction therein put on the passages in Craig's Jus Feudale, lib. 2. dieg. 3, sect. 19, 20; lib. 2, dieg. 5. sect. 14: lib. 2. dieg. 6. sect. 7; pp. 198, 199, 221, 225, 226, edit. tert., 1732. cited from Bracton and Fleta has been discovered (59) Where one out of three or more joint-tenants dies, as in the case of Rose's adm'x v. Burgess, 10 Leigh 186, there is no reason to suppose that the statute has abolished the joint-tenancy among the survivors; on the contrary they remain joint-tenants inter sese, and become tenants in common with the heirs, devisees, executors, or administrators. as the case may be, of their deceased companion in the manner described by Littleton, sect. 294. See 1 Tuck. Comm. edit. 1836, B. 2, p. 173, 1 Lom. Dig. 481. One consequence of which, that is important, may be gathered from Litt. sect. 312. (60) All the provisions in detail, about the devolu(58) Litt. sect. 280; 2 Blackst. Comm. 183.-Mr. Wil- tion of the property, and its liability for debts, &c liams (on Real Prop. 100-101,) says: "The lands might have been omitted, and still the result would intended to be given to joint-tenants in fee simple have been the same, from the mere abolution of are limited to them and their heirs, although the the jus accrescendi. See 4 Kent's Comm. 37, note d, heirs of one of them only will succeed to the inherit- 6th edit. 4 Ired. Eq. Rep. 276-277, Weir v. Humphreys. ance, provided the joint-tenancy be allowed to con--Suppose a husband joint-tenant should alienate. tinue; thus, if lands be given to A., B., and C., and and then die; whether or no would his wife be entheir heirs; A., B., and C. will together be regarded titled to dower? See 15 Peters 21; Mayburry v. as one person, and, when they are all dead, but not Brien. before, the lands will descend to the heirs of the (61) The importance of this position to the point artificial person (so to speak) named in the gift. mainly discussed, may be estimated by considering The survivor of the three, who together compose the case of Sawyer v. Trueblood's ex'rs, 1 Murph. the tenant, will, after the decease of his compan- 190. There a testator, living in North Carolina, beions, become intitled to the whole lands. While queathed to his five daughters, by name, all the they all lived, each had the whole; when any die, remaining part of his moveable estate, to them and the survivors or survivor can have no more [qu. their disposal." Three of these daughters died in less?] The heir of the survivor is, therefore, the his lifetime: the other two claimed the whole resiperson who alone will be entitled to inherit, to the duum. The question, whether they were so enentire exclusion of the heirs of those who may have titled, or that a part of the residue had elapsed, was previously died." And so the law was settled in the referred to the Supreme Court of that State. And time of Littleton, and long before. But very many their decision upon it was pronounced, as follows: passages in Bracton and Fleta prove, what I have "There being no words of severance in the devise not seen noticed in any writer of a later date, that to the daughters, it would at common law have when they wrote respectively, that is, in the reigns been a joint-tenancy; but, by the act of 1784, it is of Henry the Third and Edward the First, at least converted into a tenancy in common. Each of the before the statute of Quia Emptores Terrarum, daughters, then, had a fifth of the residue be(Westm. 3, 18 Edw. 1. c. 1;)-the law was different- queathed to her in common, and the shares of Those passages cannot be understood, but upon the those who died in the lifetime of the testator must supposition, which is almost expressly declared in be considered as so much of the testator's property some of them,-that in such a case as Mr. Williams undisposed of by will. As to those the bequests puts, although the jus accrescendi would carry the have become void and cannot be claimed by the whole to the last surviving joint-tenant for his life, survivors."-Undoubtedly this is a direct authority yet after his death the whole estate would belong to for the opinion of Judge Lomax which is combatted the heirs of all, if there were heirs of all then liv-in the text, if the statute of North Carolina be siming, or to the heirs of two, if heirs of only two were ilar to that we are considering. See note 22. But then in being, and that among them again the jus it is an authority which seems to have been ever accrescendi would operate in such a manner as that since overlooked in that State, if not positively disthe land would revert to the donor upon the total approved as misinterpreting the statute in this failure of all the heirs of all the joint-tenants, and point. Hence no allusion is made to it by Ruffin, C. not before. Indeed there are several passages in J. in the case cited in the note just now mentioned: Bracton, which would seem to indicate that in his nor by Daniel, J. in delivering the opinion of the time the law concerning joint-tenants was yet court in Nelson v. Moore. (1 Ired. Eq. Rep. 31:) but nearer to what is now the law in Virginia; for each of them takes pains to shew that the terms they strongly import. that if the joint tenant who of the will per se created a tenancy in common: nor died first, left heirs, they were entitled to come can I find it noticed in any other case; while in the at once into his place, and that the jus accrescendi very recent one of Weir v. Humphries, 4 Ired. Eq. took effect, as to his part, only when his heirs Rep. 277, Ruffin, C. J. in delivering the opinion of the failed. But probably the law was not then clearly court, says expressly: "The act does not abolish settled upon this point, for he does not appear joint-tenancy, nor turn it into a tenancy in comto be consistent respecting it; and as those pas-mon."-See also the next succeeding note. sages are either omitted or modified by Fleta, we may fairly presume that in the time of the latter the law was taken to be otherwise. See Bract. lib. 2. cap. 5, sect. 6, fol. 13, a, edit. 1569; Fleta, lib. 3, cap. 4, sect. 2, pag. 179, edit. 1685; Bract. lib. 2, cap. 5. sect. 6. fol. 13. a; lib. 4, tract. 3. cap. 9. sect. 3, fol. 262, b; Fleta, lib. 3, cap. 4, sect. 3, 5, pag. 179. 180; Bract. lib. 2, cap. 11. sect. 1, fol. 28, a; Bract. lib. 2, cap. 11. sect. 2. fol. 180; Fleta, lib. 3, cap. 4, sect. 7. pag. 28, a; and 28, b. To the passages in the two last (62) This position is important, for the reason mentioned in the last preceding note: But if both it and the position preceding it were mistaken, still the conclusion of the text upon the main point might be maintained. See note 102. (63) 2 Rob. Va. Rep. 273; Robinett v. Preston's heirs; 3 Gratt. 212-213, Lowe v. Miller: 1 Tuck. Comm. edit. 1836, b. 2, p. 173; 1 Lom. Dig. 481. See note 61. 379 In short, since the statute joint-tenants seem to have an estate that is to all purposes joint, both in its inception; and also in its continuance, until a destruction or severance thereof takes place,-which latter, where an interest has become vested, is effectuated by the statute at (if the joint estate was not terminated before) the moment any of them dies, to the extent of his part; (72) and thenceforth that part is to be regarded as it would have been (though the statute never had been exacted), if the joint estate had been to the same extent dissevered by any of the means which therefore existed. And, if this be the sum of its efficacy, the consequence seems to be, that in regard to the lapsing of devises and legacies, and also in regard to the vesting of estates created or transferred by conveyances inter vivos, it has been productive of no change whatever. former incidents, during the *joint | 380 ification either just *the same with, lives of all its owners: and if, in that or exactly analogous to, that, which, time, partition be made, or a severance by force of the statute where it prevails, is effected without partition, (64) it is qui- now universal. escent 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 (65) 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; (66) 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 moments of production, or blights by anticipation in the bloom, that particular fruit. (67) 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 which that law annexed to it, but leaves it in all other respects as it was. And whatever fate might have befallen an attempt of individuals, prior to its enactment, so to modify the law of estates, in any particular instance, by deed or will, (68) there can be neither doubt about the power of the legislature to make such a modification for every case, (69) nor insur-ners are not joint-tenants, (Com. Dig. tit. Estates, mountable difficulty about comprehending the notion of a joint estate deprived of this particular incident. The idea was not even new; for, although the right of survivorship is said (70) to be the natural and regular consequence of the union and entirety of interest between the owners of such an estate, yet even the common law admitted, from the custom of merchants, a large class of cases, (71) a mod-reason to believe that at that time they were joint(64) This may happen without an alienation by any joint-tenancy; and that the custom of merchants in of the joint-tenants; and in such a case they are converted into tenants in common. 2 And. 232. Morgan's case: Cro. Eliz. (470,) 743, S. C. cited: (470.) 481, Childs v. Wescot: 2 Rep. 60. b. S. C. Cor. Eliz. 743, Portley v. Portley, cited; Co. Litt. 182. a. b: Com. Dig. tit. Estates, K. 5: Bac. Abr. tit. Joint-Tenants, I. 6: 2 Blackst. Comm. 186: 3 Prest. Convey, 474-484; 2 Crabb on Real Prop. § 2312. (65) This expression, taken from the statute, is not quite accurate, though very common in our books; but its meaning (as here employed) is obvious. No sound argument can be drawn from it to impugn the position maintained in the suppletory note. post. (66) 11 Serg. & R. 192–193, Bambaugh v. Bambaugh. (67) See note 60. and the paragraph of the text corresponding to note 85. (68) See Y. B. 8 Ass. pl. 33, Anon.; 1 Rep. 84. b, Corbet's case: 3 Green's Chanc. Rep. 16, Mullany v. Mallany; and notes 32 and 77. (69) The decision in Bambaugh v. Bambaugh, 11 Serg. & R. 191, does not precisely indicate the imaginary difficulty here scouted. (70) 2 Blackst. Comm. 183-184; 3 Rand. 182. Thornton v. Thornton. See 1 Tuck. Comm. edit. 1836, B. 2. pp. 172-173, and also the passages of Bracton and Fleta cited in note 58.-Judge Story (on partnership. sect. 89, note 6) quotes Blackstone as saying that it is "the natural and necessary consequence;' but in that he is not quite accurate. (71) Noy 55, Anon.; 2 Brownl. 99, Anon. Co. Litt. 182. a: Bac. Abr. tit. Joint-Tenants, C.; Collyer on Partn. 1st edit. 64-65; Peak. edit. § 123, 124. In these and many other books merchant-partners are represented as joint-tenants of their stock, without survivorship; which, no doubt, was long, if it is not 381 *It may be objected, that the intennow, the common opinion, agreeably to the phrase, jus accrescendi inter mercatores pro beneficio commercii locum non habet." And that serves my purpose equally, whether such opinion was or was not correct; since it proves that the notice of a joint tenancy divested of the jus accrescendi was not new. Some maintain that in such cases the parti Tuck. Comm. edit. 1836, B. 2. p. 313. One learned K. 2;) but tenants in common. 2 Blackst. Comm. 399; writer has said, that where it is understood that the jus accrescendi never holds between partners. it seems altogether immaterial whether they are named joint-tenants or tenants in common, of personal property." Wats. Partn. 65-66. While another insists, that they are neither joint-tenants though more resembling the former than the latnor tenants, in common, but different from both, ter. Stor. Partn. § 89-91.-from what appears in the Y. B. 38 Edw. 3. 7. a. Executors of Henry de Lv. J-, especially at the end of the case, there is tenants, with survivorship as in other cases of was at a later period allowed to work a change in the law. [Since this note was written, it has been L. & E. Rep. 506, that at law the jus accrescendi still contended, in Buckley v. Barber, 15 Jur. 63; (1 Engl. partner in all cases; and that the representatives operates in favour of the surviving partners or of the deceased partner have no remedy for his share but in a court of equity: but upon mature in regard to chattels in possession, against the opindeliberation the contrary thereof was determined ion expressed in a note in the 5th London edition of Abbott on Shipping. (P. 1. ch. 3. § 1. note a:) which Tenterden. [Abb. shipp. 7th Lond. edit. 97. note denied, by Judge Story. Abb. Shipp. 4th am. edit. |