SECTION I. Of Estates in Coparcenary. The estate in coparcenary arose, at common law, when lands descended to two or more persons, as when a person seised in fee simple died and his next heirs were two or more females, his daughters, sisters, aunts, cousins, or their representatives. In England, by special custom, as in gavelkind, the same estate was created by a descent to all the males in equal degree, as sons, brothers, uncles, &c. In both these cases, all the parceners put together made but one heir, and had but one estate among them. (2 Black. Com. 187.) This species of estate arose only by descent. They were called parceners, because they could be compelled to make partition. Though they had a unity of interest, they had not an entirety of interest. They were each entitled to the whole of his or her share, and there were several inheritances on the death of either. There was no survivorship, or jus accrescendi as in joint tenancy. The estate was liable to curtesy and dower. (Litt. §§ 263, 264.) There is much curious learning in the old books as to this estate; but it is of no value in this state, since our statute has long ago provided that wherever an inheritance shall descend to several persons, they shall take, as tenants in common, in proportion to their respective rights. (1 R. S. 753, § 17. Laws of 1786, 1 Greenlf. 205, 206.) And this is applicable alike to both sexes. This kind of estate has not been created since the year 1786, and it probably does not exist in any of the states at this day. SECTION II. Of Estates in Joint Tenancy. The estate in joint tenancy is invariably created by purchase, and does not arise by descent. It occurred, at common law, when land or tenements were granted or devised to two or more persons, t hold in fee simple, fee tail, for life, for years, or at will. (Litt. § 277. Before proceeding to notice the incidents of this estate it is prope to remark that by the law of this state, originally passed in 1786 and revised in 1830, every estate granted or devised to two or more persons in their own right is a tenancy in common, unless expressly declared WILL.-12. to be in joint tenancy; but every estate vested in executors or trustees as such, is required to be held by them in joint tenancy. (1 R. S. 727, § 44.) This section of the law applies as well to estates already created or vested, as to estates thereafter to be granted or devised. The estate in joint tenancy is rarely created in this state, except in devises or grants to persons in a fiduciary capacity; as to executors or trustees. The incidents of the estate hereafter noticed have reference to the estate when legally created. At common law a devise or grant to two or more, in fee, or for life, without further words, made them joint tenants. If the grantor desired only to create a tenancy in common, he must so express it in the grant or devise. Our statute, it will be perceived, has reversed the common law rule, and made the estate a tenancy in common, unless the instrument creating the estate expressly declares otherwise, except in the case of executors and trustees. With respect to the properties and incidents of an estate in joint tenancy, it is to be observed that they are derived from its unity, which is fourfold, namely: unity of interest, unity of title, unity of time, and unity of possession. (2 Black. Com. 180. Crabbe's Law of Real Property, § 2033.) Therefore, joint tenants have one and the same interest, accruing by the same conveyance, commencing at the same time, and held by one and the same undivided possession. (Id.) 1. The quantity of interest of each joint tenant must be the same. One cannot be tenant for years and the other for life; one cannot be seised of a freehold in possession and the other of a reversion upon a freehold. (Co. Litt. 188.) 2. Joint tenants must have a unity of title. It must be created by the same act. One cannot derive his title by descent and the One cannot derive his title by grant from A. and the other by grant from B. For one title might prove good and the other bad. other by devise. 3. There must be a unity of time. Each estate must be vested at the same time as well as by the same title. The case put by Coke to illustrate this is, if lands be demised for life, the remainder to the right heirs of J. S. and of J. N.; J. S. has issue and dies, and J. N. has issue and dies. The issue in this case are not joint tenants, because the one moiety vested at one time, and the other moiety vested at another time. (Co. Litt. 188.) 4. And lastly, there must be unity of possession. Joint tenants are said to be seised per my et per tout, by the half or moiety, and by all that is, they each of them have the entire possession, as well of every parcel as of the whole. They have not, one of them a seisin of one half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety. (2 Bl. Com. 182.) The principal incident of an estate in joint tenancy is the jus accrescendi, or right of survivorship. Upon the death of one joint tenant, whether the estate was in fee, for a term of years, or in trust, his interest passed not to his heirs or other representatives, but to the surviving co-tenant or co-tenants. Hence a joint tenant could not devise his interest, because, as a will takes effect only at the death of the testator, the estate would pass to the survivor, and thus overreach the will. The English common law, before the abolition of tenures, favored title by joint tenancy, because it prevented a severance of estates. But since that time, the reason having ceased, the courts have leaned against that estate. In Rigden v. Vallier, (3 Atk. 731,) Lord Hardwicke held that the words "to hold to them and their heirs equally to be divided betwixt them," created a tenancy in common, whether the instrument of conveyance be a deed or a will. In the same case the same learned chancellor held that courts of equity took great latitude upon the foot of intention, and therefore if two persons advance money upon a mortgage, though the conveyance be made to them jointly, it shall be a tenancy in common. Partners are joint tenants of all the partnership property during their lives, and on the death of one the remedy to recover debts due to the firm survives to the survivor or survivors. Littleton says that if an obligation be made to many for one debt, he which survives shall have the whole debt or duty. And so it is of other covenants and contracts, &c. (Litt. § 282.) Lord Coke, in his commentary upon this, says, an exception is to be made of two joint merchants, with respect to whom, by the law merchant, there is no survivorship, but the share of the deceased shall not survive, but go to his executors or administrators. This, he says, is for the advancement of trade and commerce, which is for the public good; for the rule is, that jus accrescendi inter mercatores pro beneficio commercii locum non habet. This rule is applicable to all traders, and has been extended to partners in the practice of physic, (Allen v. Blanchard, 9 Cowen, 631,) and by parity of reason, it applies to all partnerships. The action survives but the interest does not. (Collyer on Partnership, 65.) The statute already referred to, (1 R. S. 727, § 44,) declaring that a grant or devise to two or more persons in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy, is not applicable to an estate granted or devised to husband and wife. They take by entireties. They have not either a joint estate, a sole or several estate, nor even an estate in common. From the unity of their persons by marriage, they have the estate entirely as one individual, and on the death of one of them, the entire tenements will belong to the survivor, without the power of alienation or forfeiture of either alone, to the prejudice of the other. (1 Prest. on Estates, 131. Jackson v. Stevens, 16 John. 110. Shaw v. Hearsey, 5 Mass. R. 521. Per Lord Kenyon, in Doe v. Parrott, 5 D. & E. 654.) It is said by Littleton, (§ 291,) that if a joint estate be made of land to a husband and wife and to a third person, the husband and wife have in law in their right but the moiety, and the other person the other moiety. The reason assigned for it is, that the husband and wife are but one person in law, and are in the like case as if an estate be made to two joint tenants, when one has by force of the jointure the one moiety in law, and the other the other moiety. The same rule applies to a larger number of grantees. The husband and wife take but one share, and are treated but as one person. (Id. 1 Prest. on Estates, 132.) And suppose the other joint owners all die leaving the husband and wife survivors, the whole then becomes their property, and the husband and wife are tenants by entireties. But though husband and wife are, for certain purposes, treated as one person, they are nevertheless distinct individual persons. If a grant of land be made to them, as tenants in common, without regard to their social union, they will hold by moieties, as other distinct and individual persons would do. (1 Preston on Estates, 132. 2 Preston on Abstracts, 41.) There are several modes by which an estate in joint tenancy may be destroyed. A destruction of the unity of title, the unity of interest, or the unity of possession, will work out this consequence. If one joint tenant release to his companion, the latter becomes seised in severalty. So if all the joint tenants unite in a conveyance to an individual, the same result follows. If joint tenants unite in a conveyance to second persons, the latter are tenants in common unless the instrument of conveyance expressly mentions, that an estate in joint tenancy is intended to be created. So if there be three joint tenants and one releases to one of his companions all his right which he has in the land, the releasee, with respect to the land released, will be tenant in common with the other two, and the latter two joint tenants of the remainder. (Littleton, § 304.) For the purpose of tenure and survivorship, joint tenants have the whole estate, while for the purpose of immediate alienation each has only a particular part. At common law one joint tenant could not compel his companion to make partition. By the statute of 31-32 of Henry 8, the writ of partition was given, the first for estates of inheritance, and the last for estates for life or years. These were re-enacted in this state in 1788, and revised in 1830, (2 R. S. 315,) by which one or more joint tenants or tenants in common, whether the estate be one of inheritance, or for life or years, may compel partition to be made; and this whether the parties be infants, or of full age, or whether they or any of them labor under the disability of coverture. The statute contains numerous provisions on the subject which are adopted by the code of procedure, (§ 448.) Under the revised statutes it has been held that proceedings in partition can only be by a party having an estate entitling him to an immediate possession, though an actual pedis possessio is not indispensable. (Brownell v. Brownell, 19 Wend. 367.) The remedy under the statute is not confined to actions at law, but may be prosecuted in a court of equity, which has been since the reign of Elizabeth the tribunal most frequently resorted to. (Cruise's Dig. tit. 18, ch. 2, § 38.) Courts of equity, it has been held, have a general concurrent jurisdiction with courts of law in all cases, as well by statute as at common law. (Smith v. Smith, 10 Paige, 470. Haywood v. Judson, 4 Barb. 228.) The revised statutes make suitable provision for the case of unknown owners, (2 R. S. 319, § 12,) and respecting the estate of tenants in dower or by the curtesy. (Laws of 1847, ch. 430, § 5. 3 R. S. 609, 5th ed.) The provisions in relation to partition are not applicable to the joint estate of husband and wife, who hold by entireties, nor to estates held by trustees. Husband and wife cannot, at common law, convey to each other. But they can unite in a deed to a third person of land held by the |