3 is abolished except as to devises or conveyances where the instrument manifestly indicates an intention on the part of the devisor or grantor to create an estate in joint tenancy.' In Maine, where the conveyance is by mortgage, or in trust to two or more persons, with power to appoint a successor in case one dies, it is construed a joint tenancy unless the contrary appear.' 9. In the following States the right of survivorship is abrogated in all cases except where the estate is vested in executors or trustees: New York, Illinois, Delaware," Missouri, Arkansas," and California. In Pennsylvania the exception is limited to the case of joint trustees. In Alabama the statute is held by the courts not to apply to trust estates and estates in auter droit.1 In New Hampshire," New Jersey, 12 Maryland,13 and Iowa," the exceptions contained in the Massachusetts statute do not exist. 10. The jus accrescendi is also abolished in the following States: Georgia," Tennessee, Texas," Florida, and North Carolina." In Virginia and Kentucky it is also virtually abolished, as, in those States, the share of each cotenant, at his death, descends to his heir, or may be devised by will. An exception is made, however, as to estates held by executors or trustees, or where the conveyance directs that the survivor shall take the share of 1 Rev. Stat. 1857, ch. 145, 1. [Pub. Stat. R. I. 1882, p. 441.] See Randall v. Phillips, 3 Mason, 378. 16 18 [Rev. Stat. Mc. 1871, p. 560.] [Rev. Stat. 1874, p. 699.] 8 Wood. Dig. 1858, p. 104, 1, art. 380. 19 9 Purdon's Dig. 8th ed. 1857, p. 458. [Purd. Dig. 1873, p. 815.] See Bambaugh v. Bambaugh, 11 S. & R. 191. 10 Code, 1852, 1312. [Code of Ala. 1876, p. 573.] Parsons v. Boyd, 20 Ala. 112. 11 Comp. Stat. 1853, ch. 135, 2. [Gen. Laws 1878, p. 325.] 12 Nixon, Dig. 1855, p. 127, 34. [Rev. Stat. 1877, p. 167.] By construction conveyances to husband and wife are excepted; Den v. Hardenbergh, 5 Halst. 42. 13 Dorsey's Laws, 1st ed. p. 784, ch. 162; 1 Maryl. Code, p. 350, 12. [Rev. Code 1878, p. 397.] See Purdy v. Purdy, 3 Md. Ch. Decis. 547. 14 Code, 1851, ch. 78, 1206; Revision of 1860, chap. 95, art. 1, 2214. [McClain's Stat. 1880, p. 546.] 15 Cobb, New Dig. 1851, pp. 293, 545. [Code of Ga. 1873, p. 398.] 16 Code, 1858, 2010. [Stat. Tenn. 1871, vol. i. 2010.] 17 Oldham & White, Dig. 1859, p. 245, art. 1037. [Rev. Stat. 1879, p. 248.] 18 Thompson's Dig. 1847, p. 191, 20. [McClellan's Dig. 1881, p. 471.] 19 Rev. Code, 1854, ch. 43, § 2. [Battle's Rev. Stat. 1873, p. 383.] the one dying. A further provision is in force in Kentucky which declares that where any real estate or slave is conveyed or devised to husband and wife, unless a right by survivorship is expressly provided for, there shall be no mutual right to the entirety by survivorship between them, but they shall take as tenants in common, and the respective moieties be subject to curtesy or dower, with all other incidents to such tenancy.2 3 11. It is held that joint tenancy, with the common-law incidents of that estate, never existed in Ohio. In the case of Sergeant v. Steinberger, the court thus refer to this principle: "It has more than once been decided by the Supreme Court on the circuit, that estates in joint tenancy do not exist under the laws of Ohio. The reasons which gave rise to this description of estate in England never existed with us. The jus accrescendi is not founded in principles of natural justice, nor in any reasons of policy applicable to our society or institutions. But, on the contrary, it is adverse to the understandings, habits and feelings of the people." This doctrince has since been reaffirmed in the courts of that State. The same principle has been settled in Connecticut. And the right of survivorship is also disallowed in South Carolina." 12. The impediment to dower created by the common-law doctrine of survivorship does not exist, it would seem, in any case where the jus accrescendi is abolished either by express statute or as the result of judicial construction. This point was determined in Massachusetts under the statutes of 1783 and 1785,7 and the same ruling has been made in other States." 1 Va. Code, 1849, ch. 116, 22 18, 19. [See Code Va. 1873, p. 920.] See Deloney v. Hutcheson, 2 Rand. 183; Ky. Rev. Stat. 1852, ch. 80, 13, and ch. 47, 14; Stanton's Rev. vol. ii. ch. 80, [See Gen. Stat. 1873, p. 531.] 2 2 Rev. Stat. Ky. art. 4, ch. 47, Stat. 1873, p. 531.] 14. 3 Sergeant v. Steinberger, 2 Ohio Rep. 305; see, also, White v. Sayre, Ibid. 110. 4 Miles v. Fisher, 10 Ohio Rep. 1; Tabler v. Wiseman, 2 Ohio State Rep. 207. 5 Phelps v. Jepson, 1 Root, 48. 61 Brev. Dig. 435. [Rev. Stat. 1873, p. 440.] See 1 Washb. Real Prop. pp. 406-409, and note; 2 Greenl. Cruise, *364, note. 7 Holbrook v. Finney, 4 Mass. 566. 8 Davis v. Logan, 9 Dana, 185; Weir v. Tate, 4 Ired. Eq. R. 264; Reed v. Kennedy, 2 Strobh. (S. C.) 67; James v. Rowan, 6 S. & M. 393; see 4 Kent, 37, note; 1 Washb. Real Prop. 157, 9; 1 Hilliard, Real Prop. 2d ed. 568, 43, 45, and note; McMahan v. Kimball, 3 Blackf. R. 13, note (2.) In Hamblin v. Bank, &c., 1 App. 66, the common-law principle excluding dower from joint estates was recognised by the court. So in Mayburry v. Brien, 15 Pet. 21. Estates in coparcenary and common. 13. Lands held in coparcenary and common are subject to dower. In the early case of Sutton v. Rolfe,' a claim for dower in lands held in common was resisted upon the ground that the wife of a tenant in common was not dowable until after partition made; but the court overruled the objection, and gave judgment for the demandant. The doctrine of this case is now firmly settled, and the rule is that dower will be set off in common, unless during the lifetime of the husband his share has been set apart to him in severalty by partition, in which event the dower of the widow will be restricted to, and it is her right to have it assigned in the portion so set apart. A voluntary partition, if the division be fairly made, and no fraud is practised on the wife, will have the same effect, in this particular, as a partition by virtue of legal proceedings. But in proceedings in partition, unless the wife be made a party, it is necessary, in order to limit her claim to endowment, that partition be actually made. Where she is not a party to the proceedings, she is not barred by a mere decree for partition which is not executed in her husband's lifetime.' 5 14. In Davis v. Logan, certain parties made a parol partition of the estate which had descended to them from their ancestor. Lot eight, as designated in the plat of division, fell to John Logan, who was then married. He subsequently sold this lot to one Davis. Afterwards the whole estate was conveyed to William Logan, one of the heirs, in trust, to make sales. He conveyed lot eight, with certain other parcels, to the same Davis 1 Sutton v. Rolfe, 3 Levinz, 84. 2 Litt. sec. 44, 45; 1 Roll. Abr. 674; Perk. sec. 310; Park, Dow. 42, 153; Tud. Cas. 46; Potter v. Wheeler, 13 Mass. 504; Wilkinson v. Parish, 3 Paige, 653; Totten v. Stuyvesant, 3 Edw. Ch. 500; Dolf v. Basset, 15 John. 21; Jackson v. Edwards, 22 Wend. 498; Mosher v. Mosher, 32 Maine, 412; 1 Washb. Real Prop. 158, 10; 1 Hilliard. Real Prop. 180, 12. Mr. Dane refers to a case in which dower was 79440 allowed in 105 of the great sneep pasture in Nantucket. 4 Dane's Abr. 674. [Ross v. Wilson, 58 Ga. 249; Blanchard v. Blanchard, 48 Me. 174; Harvill v. Holloway, 24 Ark. 19; Smith v. Smith, 6 Lans. (N. Y.) 313; Cook v. Walker, 70 Me. 232. In Walker v. Walker, 6 Coldw. 571, it was held that partition should be made and the share of the deceased husband set apart before assigning dower. See Hill v. Gregory, 56 Miss. 341.] $ 1 Hilliard, Real Prop. 180, 12; Totten v. Stuyvesant, 3 Edw. Ch. 500. But ee Rank v. Hanna, 6 Ind. 20; post, 15. 4 Wilkinson v. Parish, 3 Paige, 653. 5 Davis v. Logan, 9 Dana, 185. who had originally purchased from John, describing in the deed. the boundaries of the entire tract, but without showing the particular location or extent of a portion of the parcels thus conveyed. After the death of John, it was held that his widow was entitled to dower out of lot eight in the tract sold to Davis. 15. In Rank v. Hanna,' the husband was seised in fee of an undivided interest in lands, which he sold, and the purchaser and his cotenant, in the husband's lifetime, made voluntary partition, and confirmed the same by deed. It was held that the widow might have her dower assigned out of the whole undivided estate as if no partition had been made. 16. It is held in New Jersey that a parol partition will not conclude the wife, even though made under such circumstances as will bind the husband; nor is the question affected by the fact that possession is taken in severalty under the partition, and maintained for a series of years. The widow is, notwithstanding, dowable of her husband's proportion of the whole land.2 17. If, after partition made of lands held in coparcenary, one of the coparceners be evicted by title paramount, he may recover a proportionate share of the premises set apart to the husband, discharged of the claim of dower. In such case the common estate is diminished by the eviction, and as the estate of the coparcener who recovers pro rata has relation to the time of the death of the ancestor, it follows that to the extent of his recovery the right of dower is overreached and defeated.3 Effect of sale in partition. 18. The statutes of most, if not all the States, provide for the sale of lands held in common, where, upon proceedings for partition, it is ascertained that a division can not be made without serious detriment to the estate. In such cases the money aris ing from the sale is brought into court, and distributed to the several tenants in common in proportion to their respective interests in the common property. From these statute regulations has sprung a question of great interest and importance, namely, whether a sale made in conformity thereto operates to 1 Rank v. Hanna, 6 Ind. 20. 2 Lloyd v. Conover, 1 Dutch. 47; Woodhull v. Longstreet, 3 Harr. 405. See, also, Lee v. Lindell, 22 Misso. 202, 206. 8 Perk. sec. 310; Park, Dow. 158. divest the contingent right of dower of the wife of a cotenant, and to pass the entire estate absolutely to the purchaser; and, if so, whether, for that reason, it is proper that the court under whose direction the sale is made, should require a portion of the husband's share of the proceeds of the sale to be invested for her benefit in case she should survive him, and her right thus become absolute. 19. Upon the first point, Vice-Chancellor McCoun, of New York, has twice expressed the opinion that a sale so made does not divest the inchoate right of dower,' and one ground upon which he bases this conclusion is, that the courts possess no power to compel the wife to accept a provision in money in lieu of her interest in, and consequent right to, the enjoyment of the land itself. "Where an actual partition is made," he observes, "it has not the effect of divesting the right, for the right remains unimpaired, though it attaches itself to the land set apart to the husband in severalty. But where a sale, instead of an actual partition is found to be necessary, it is supposed by the complainant's counsel that the right or interest of the wife, as well as the title of the husband, passes, and that the purchaser will hold the land free of dower. The statute in relation to partition proceedings has not so declared in terms; and if such had been the intention of the legislature, it appears to me there would have been some provision in the law for securing the fund or proceeds belonging to the husband, or some portion of it, at least, for the benefit of the wife in the event of her survivorship; but no such provision is made. Where there is an estate in dower, or by the curtesy, the statute is explicit in its directions, and the powers of the court are declared. (2 R. S. 325, § 50 to 55.) How can these provisions be applied to the case of a mere contingent or inchoate right? The practical effect, as it seems to me, would be rather ludicrous; since it would be converting a wife into a widow during the husband's life. Then, has the court power, independently of any statutory authority, to deal with the proceeds of the husband's share, and to compel him to make a settlement upon his wife, in the event of her surviving him, in lieu of her dower in the lands sold? Cases do frequently occur where the Court of Chancery has jurisdiction. to control a husband in the exercise of his legal rights in 1 Matthews v. Matthews, 1 Edw. Ch. R. 565; Jackson v. Edwards, 7 Paige, 386, 390, 391. |