At common law, a tenancy in common was never created by the descent of land to two or more heirs of the same person, since this made the heirs coparceners. In this country, however, joint heirs more usually take as tenants in common.37

Termination.

A tenancy in common may be terminated either by uniting all the interests in the land in one tenant, by purchase or other wise, which makes him the owner of the whole in severalty, or by making partition between the several tenants, which gives them each an interest in severalty in a specific part of the land.38

§ 164. Coparcenary.

At common law, an estate in coparcenary or parcenary arose when, on the death of the owner of an estate of inheritance, it descended to two or more female heirs, in default of a male heir, and likewise when, by local custom, land descended to two or more male heirs.39 Coparceners or parceners hold a position intermediate between joint tenants and tenants in common. Three of the unities referred to in connection with a joint tenancy, namely, those of title, interest, and possession, exist in the case of coparcenary. That of time is not necessary, however, since, on the death of one of the heirs, his heir takes his place as parcener, and in such case the interests of the parcener arise at different times. For the same reason, there is no right of survivorship as in joint tenancies.11

40

Jackson v. Livingston, 7 Wend. (N. Y.) 136; Wallace v. Miller, 52 Cal. 655.

374 Kent, Comm. 367; 1 Washburn, Real Prop. 415. See post, § 164. 38 2 Bl. Comm. 195; 2 Cruise, Dig. tit. 20, §§ 26-36. See infra, §§ 174, 175.

39 Litt. §§ 241, 242; 2 Bl. Comm. 187; 4 Kent, Comm. 366; Challis, Real Prop. 30.

40 Co. Litt. 164a; 2 Bl. Comm. 188; 2 Cruise, Dig. tit. 19, §§ 3-5. See Hoffar v. Dement, 5 Gill (Md.) 132, Finch's Cas. 951.

41 Litt. § 280; Co. Litt. 164a; 2 Bl. Comm. 188; 4 Kent. Comm. 866; 2 Cruise, Dig. tit. 19, §§ 5, 6.

One parcener may convey his share to a third person, or to another parcener, devise it."

or may

42

A tenancy of this character may be terminated by the transfer by one parcener of his share to a stranger, this destroying the unity of title as regards that share, and thereafter the grantee is a tenant in common as to the others. It may also be terminated by the acquisition by one coparcener of the shares of the others, or by partition.13.

In this country, this class of tenancy is rather infrequent, land descending to two or more persons being generally regarded, either with or without a statutory provision to that effect, as a tenancy in common.** It is, however, still recog nized in some states, and there are occasional statutes providing that joint heirs shall take as coparceners.15

§ 165. Tenancy by entiretics.

A tenancy by entireties (or by the entirety) is essentially a joint tenancy, modified by the theory of the common law that the husband and wife are one person.18 This tenancy can exist only in case the persons to whom the title passes are husband and wife at the time the instrument conferring title takes effect, and it is not created by a conveyance or devise to persons who subsequently marry."?

43 Challis, Real Prop. 322; 1 Washburn, Real Prop. 413.

48 2 Bl. Comm. 189, 191.

444 Kent, Comm. 367; 1 Washburn, Real Prop. 415; 1 Stimson's Am St. Law, 1375; Freeman, Cotenancy, § 85.

451 Stimson's Am. St. Law, §§ 1375, 3130. See Ward v. Ward's Heirs, 40 W. Va. 611, 52 Am. St. Rep. 911; Thompson v. Barber, 12 N. H. 563; Gilpin v. Hollingsworth, 3 Md. 190, Finch's Cas. 949.

46 Litt. 291; Challis, Real Prop. 304, note; Pray v. Stebbins, 141 Mass. 219, 55 Am. Rep. 462; Morris v. McCarty, 158 Mass. 11; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266; Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517.

47 Co. Litt. 187b; Stuckey v. Keefe's Ex'rs, 26 Pa. St. 397; Holt v. Wilson, 75 Ala. 58; Morris v. McCarty, 158 Mass. 11; Hardenbergh ▼. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371.

This tenancy may be created even when the husband and wife are not the only grantees in the conveyance or beneficiaries of the devise, as when it is to a man and his wife and another person, in which case the husband and wife would, prima facie at least, take a one-half interest only, which they would hold by entireties, while the third person would take the other half; and the same rule would apply, whatever the number of cotenants.**

While a conveyance or devise to a husband and wife will ordinarily create a tenancy by entireties, the weight of authority is to the effect that an intention, clearly expressed in the instrument, that they shall take as tenants in common or as joint tenants, will be effective."

The most important incident of a tenancy by entireties is that the survivor of the marriage, whether the husband or the

48 Litt. 291; 4 Kent, Comm. 363; 1 Washburn, Real Prop. 425; Jupp v. Buckwell, 39 Ch. Div. 148; Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302; Thornton v. Thornton, 3 Rand. (Va.) 179; Johnson v. Hart, 6 Watts & S. (Pa.) 319, 40 Am. Dec. 565; Barber v. Harris, 15 Wend. (N. Y.) 615; Hardenbergh v. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371. The rule that the husband and wife will, in such case, together take but one share, is, however, it seems, a mere rule of construction. In re March, 27 Ch. Div. 166.

It has been decided that the fact that a conveyance or devise to a man and his wife and to others is expressly to them "as tenants in common" does not affect the rule that the man and wife shall together take but one share. 2 Jarman, Wills, 1116; Warrington v. Warrington, 2 Hare, 54. Contra, Hilton v. Bender, 69 N. Y. 75.

491 Preston, Estates, 132; 4 Kent, Comm. 863; Hunt v. Blackburn, 128 U. S. 464; Thornburg v. Wiggins, 135 Ind. 178, 41 Am. St. Rep. 422, Finch's Cas. 940; Fladung v. Rose, 58 Md. 13; McDermott v. French, 15 N. J. Eq. 78; Fulper v. Fulper, 54 N. J. Eq. 431, 55 Am. St. Rep. 590; Hiles v. Fisher, 144 N. Y. 313, 43 Am. St. Rep. 762, Finch's Cas. 963; Miner v. Brown, 133 N. Y. 312; Young's Estate, 166 Pa. St. 645; Hadlock v. Gray, 104 Ind. 596. Contra, Stuckey v. Keefe's Ex'rs, 26 Pa. St. 397.

When husband and wife take by inheritance from one person, their titles have been regarded as distinct, so that consequently they do not take by entireties. Knapp v. Windsor, 6 Cush. (Mass.) 157; Brown v. City of Baraboo, 90 Wis. 151. Contra, Gillam's Ex'rs v. Dixon, 65 Pa. St. 395.

wife, is entitled to the whole, and that this right cannot be defeated by a conveyance by the other to a stranger, as in the case of a joint tenancy.50

Effect of modern statutes.

51

At common law, the husband, having the right to control and dispose of his wife's land during their joint lives, was entitled to all the rents and profits of land held by entireties, and not merely to one-half thereof, and he could convey the land for the term of his life.52 This power of control in the husband over the wife's share is, however, taken away by the married woman's property acts, hereafter referred to, since it was not an incident of the tenancy by entireties, but was merely one of his common-law marital rights.53

50 2 Bl. Comm. 182; 1 Preston, Estates, 131; Williams, Real Prop. 226; 4 Kent, Comm. 362; 1 Washburn, Real Prop. 425; Branch v. Polk, 61 Ark. 388, 54 Am. St. Rep. 266; Simpson v. Pearson, 31 Ind. 1, 99 Am. Dec. 577; Ames v. Norman, 4 Sneed (Tenn.) 683, 70 Am. Dec. 269; Hiles v. Fisher, 144 N. Y. 306, 43 Am. St. Rep. 762, Finch's Cas. 963; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266; Varnum v. Abbot, 12 Mass. 478, 7 Am. Dec. 87; Pray v. Stebbins, 141 Mass. 219, 55 Am. Rep. 462; Ketchum v. Walsworth, 5 Wis. 95, 68 Am. Dec. 49; Hardenbergh v. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371; Wyckoff v. Gardner, 20 N. J. Law, 556, 45 Am. Dec. 388; Torrey v. Torrey, 14 N. Y. 430; Rogers v. Grider, 1 Dana (Ky.) 242; Needham v. Branson, 28 N. C. 426, 44 Am. Dec. 45; Fairchild v. Chastelleux, 1 Pa. St. 176, 44 Am. Dec. 117; Taul v. Campbell, 7 Yerg. (Tenn.) 319, 27 Am. Dec. 508; Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517.

1 See post, § 176.

2 Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. 361, Finch's Cas. 952; Pray v. Stebbins, 141 Mass. 219, 55 Am. Rep. 462; Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302; Washburn v. Burns, 34 N. J. Law, 18; Jackson v. McConnell, 19 Wend. (N. Y.) 175, 32 Am. Dec. 439; Fairchild v. Chas telleux, 1 Pa. St. 181, 44 Am. Dec. 117; Ames v. Norman, 4 Sneed (Tenn.) 683, 70 Am. Dec. 269; Bennett v. Child, 19 Wis. 362, 88 Am. Dec. 692.

* Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 Am. Rep. 52; Hiles v. Fisher, 144 N. Y. 306, 43 Am. St. Rep. 762, Finch's Cas. 963; McCurdy v. Canning, 64 Pa. St. 41; Branch v. Polk, 61 Ark. 388, 54 Am. St. Rep. 266; Shinn v. Shinn, 42 Kan. 1; Town of Corinth v. Emery, 63 Vt. 505, 25 Am. St. Rep. 780.

The various state statutes abolishing joint tenancy or the right of survivorship, or declaring that two or more grantees shall take an estate in common, have generally been held not to apply to tenancy by entireties,5 though some such statutes are so worded as to apply thereto.55 Likewise, what are known as the "Married Women's Property Acts" are generally held not to abolish the tenancy by entireties,56 though in some jurisdictions they are given such effect, it being a question of the construction of the particular statute.57

Some of the modern statutes authorizing the wife to convey her property as a feme sole have been construed as allowing her to dispose of her half interest under the tenancy, subject to the right of survivorship existing in the husband,58 while in some states neither the husband nor the wife can dispose of his or her half interest without the concurrence of the other." 59

$4 Freeman, Cotenancy, § 65; Craft v. Wilcox, 4 Gill (Md.) 504, Hemingway v. Scales, 42 Miss. 10, 97 Am. Dec. 425; Hardenbergh v. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371; Diver v. Diver, 56 Pa. St. 106; Moore v. Moore, 12 B. Mon. (Ky.) 651; Shaw v. Hearsey, 5 Mass. 521; Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517; Ketchum v. Wals worth, 5 Wis. 95, 68 Am. Dec. 49; Noblitt v. Beebe, 23 Or. 4; Harrison v. Ray, 108 N. C. 215; Thornton v. Thornton, 3 Rand. (Va.) 182.

55 Hoffman v. Stigers, 28 Iowa, 302; Pray v. Stebbins, 141 Mass. 219, 55 Am. Rep. 462; Gresham v. King, 65 Miss. 387; Wlison v. Wilson, 43 Minn. 898.

56 Pray v. Stebbins, 141 Mass. 219, 55 Am. Rep. 462; Baker v. Stewart, 40 Kan. 442, 10 Am. St. Rep. 213; Chandler v. Cheney, 37 Ind. 891; Carver v. Smith, 90 Ind. 223, 46 Am. Rep. 210; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266; Gresham v. King, 65 Miss. 387; Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. 361, Finch's Cas. 952; Fisher v. Provin, 25 Mich. 347; Diver v. Diver, 56 Pa. St. 106; Bramberry's Estate, 156 Pa. St. 632, 36 Am. St. Rep. 64.

57 Walthall v. Goree, 36 Ala. 728; Donegan ▼. Donegan, 103 Ala. 488. 49 Am. St. Rep. 53; Cooper v. Cooper, 76 Ill. 57; Robinson's Appeal, 88 Me. 17, 51 Am. St. Rep. 367; Clark v. Clark, 56 N. H. 105; Thornley v. Thornley [1893] 2 Ch. 229.

58 Branch v. Polk, 61 Ark. 388, 54 Am. St. Rep. 266; Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 Am. Rep. 52; Hiles v. Fisher, 144 N. Y. 306. 43 Am. St. Rep. 762, Finch's Cas. 963; Atkison v. Henry, 80 Mo. 151.

59 Chandler v. Cheney, 37 Ind. 391; Naylor v. Minock. 96 Mich. 182: