CHAPTER XII.

JOINT TENANCY AND TENANCY IN
COMMON.

1. Incidents of Joint Tenancy.

Joint Tenancy.-An indispensable incident of a joint tenancy is a right of survivorship among the joint tenants, the death of one causing the whole legal or beneficial interest to vest in the survivors or survivor.

This incident of survivorship is necessarily absent where one or both of the parties is a corporation, and a joint tenancy could not formerly have been created between an individual and a corporation or between two corporations, but the tenancy was necessarily a tenancy in common. Now, however, by virtue of the Bodies Corporate (Joint Tenancy) Act, 1899, an individual and a corporation or two corporations ("bodies corporate") may hold property in joint tenancy, and upon the dissolution of one the whole. property devolves upon the other.

There can be no joint tenancy between the legal personal representatives of two deceased persons, for the legal personal representative is perpetual.

Therefore, if a testator makes a gift to A. and B., and in case of their deaths before the testator to their executors or administrators, then if both A. and B. die before the testator the gift goes to the estate of each in moieties, and not in joint tenancy.

In practice estates are always limited to trustees in such a way as to create a joint tenancy, so as to save the trouble and inconvenience of getting the estate transferred every time that one of several trustees may die.

Other instances of a joint tenancy are a mortgage to two or more and stock standing in joint names; but, although as between the mortgagees or the stockholders on the one hand and the mortgagor or the company on the other the interest is joint, it does not follow that there is a joint tenancy of the beneficial interest.

2. What Creates a Joint Tenancy.

(a) A plain devise or bequest to A. and B. simply, or a gift to a class simply does so.

So does a gift to A. and B. and their heirs, or to a class and their heirs.

If a gift is made to two persons who might marry (even though they are married already) and the heirs of their bodies, it creates a joint tenancy in tail, but if they cannot marry they take joint estates for life with several inheritances in tail; in the first case the whole interest and in the second the life interests alone are subject to survivorship.

(b) Joint estates for life and several inheritances. In these cases words of severance are attached to the inheritance, but not to the devise.

A devise to several persons and their respective heirs gives joint estates for life (i.e., the whole life estate goes to the survivors from time to time), with several inheritances (i.e., the corpus goes after the death of the survivor to the representatives of those persons in

equal shares as tenants in common); therefore, when a testator gave the residue of his real and personal estate to trustees on trust for his nephews J., T., and G., and for their respective heirs, executors, administrators and assigns, and J. died before the testator and G. died after him intestate, T. was entitled to the income of the whole for his life, and after his death the residue went in thirds, viz., one third to T. or his representatives, one third to G.'s heir-at-law and nextof-kin (he having died intestate), and one third lapsed by reason of the death of J. in the testator's lifetime, and there was an intestacy as to this share.

Limitations of personalty follow those of realty in this respect. See generally In re Tiverton Market Act (1858), 20 B. 374; In re Atkinson, [1892] 3 Ch. 52.

If "heirs of the body" is used instead of "heirs," the interests in remainder after the joint life estates would be tenancies in common in tail.

3. Severance of Joint Tenancy.

A joint tenancy may be severed in three ways:

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(1) An act of any one of the persons operating upon his own share may create a severance as to that share."

A disposition by one joint tenant amounting at law or in equity to an assignment of the share of that owner will therefore sever the tenancy with regard to that one person, though the other joint tenants will still hold the remainder in joint tenancy. Such a disposition may be, for example, a conveyance, mortgage, assignment, or covenant. Each joint tenant is

at liberty to dispose of his own interest in such manner as to sever it from the joint fund-losing, of course, at the same time his own right of survivorship. '(2) A joint tenancy may be severed by mutual agreement (even by parol agreement) of all the joint

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tenants.

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'(3) There may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in

common.

"When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share declared only behind the backs of the other persons interested. You must find a course of dealing by which the shares of all the parties to the contest have been affected." See Williams v. Hensman (1861), 1 J. & H. 546.

And, therefore, where a fund stood in Court to the credit of three infants as "joint tenants," and the eldest on coming of age took out a summons for payment of his share but died before the hearing, the joint tenancy was not severed, for although the intention to sever was there, no sufficient act had been done; the remaining infants could not, while infants, agree to a severance, and the summons might have been abandoned before the hearing. If an order for payment had been made this would have created an effectual severance. In re Wilks, [1891] 3 Ch. 59.

The acquisition during the continuance of a joint tenancy for life of the reversion or remainder by one of the joint tenants destroys the joint estate and effects a severance of the joint life estate.

Tenancy in Common.

A tenancy in common is created where a gift is made to several, either expressly as tenants in common or with any words denoting a severance, distribution or division; thus the words " equally, among, between, share and share alike, to be divided, to be paid and divided, respectively, each of them, &c.," in fact any words which can be construed as denoting an intention in favour of a tenancy in common as against a joint tenancy (against which the Court leans) will create a tenancy in common. Therefore, taking the example given above of a gift to several and their respective heirs which creates a joint tenancy for life with remainders in common, if the gift is to A., B. and C. respectively and their respective heirs, tenancy in common in fee is created.

In the common case of a gift to children who shall be living at a certain date, and the issue of any then dead, such issue taking their parent's share only, double words of severance are necessary in order to create tenancies in common throughout, for both the class of children and each set of issue prima facie take jointly among themselves.

For instance, if the words be "upon trust for all and every my sons and daughters who shall be then living, and the issue of any then dead (such issue standing in loco parentis) share and share alike," the words "share and share alike" do not grammatically apply to both classes, but only to the class of children, and there being no words of division specially applicable to the class of issue, those issue take inter se as joint tenants. In re Yates, [1891] 3 Ch. 53.