they took originally by moieties, they will continue to hold by moieties after the marriage. There is nothing, therefore, in the relation of husband and wife which prevents them from being tenants in common. There are great opinions in favour of the position that husband and wife may by express words be made tenants in common by a gift to them during coverture. 2 Prest. on Abstr. 41; I Prest. on Estates, 132; 4 Kent, 363; 1 Reed's Blackst. 470. The case of Stuckey v. Keefe's Exrs., 2 Casey, 397, holds a contrary doctrine. The acts of the legislatures of the various States abolishing joint-tenancies and converting them into tenancies in common have been construed not to extend to tenancies by entireties. Shaw et al. v. Hearney et al., 5 Mass. 521; Jackson v. Stevens, 16 Johns. 110; Den d. Hardenbergh v. Hardenbergh, 5 Halst. 42; Thornton v. Thornton, 3 Rand. 179.-Sharswood's note.

WILLIAMS, REAL PROP. (17th ed.), 376. Tenancy by the entirety has been generally recognized in the United States as one of the common-law incidents of marriage, and still exists wherever it has not been expressly or impliedly abrogated by statute. In several States it has been held that the married women's acts have destroyed the common law unity of husband and wife, and that these acts, either alone or in connection with the statutes changing joint-tenancies into tenancies in common have practically abolished the estate by entirety. For a like reason the Supreme Court of Iowa has decided that a conveyance to a husband and wife creates a tenancy in common, unless a contrary intention is expressed. And in Kentucky and Massachusetts the same result is secured by an express statutory provision. In Connecticut and Ohio, where the doctrine of survivorship has

'See Clark v. Clark, 56 N. H. 105; Walthall v. Goree, 36 Ala. 728; Cooper v. Cooper, 76 Ill. 57.

'Hoffman v. Stigers, 28 Iowa, 302.

3 Mass. Stat. of 1885, chap. 237, § 1; Gen. Stat. of Ky. 1888, chap. 52, art. 4, § 13.

never been recognized, tenancy by the entirety does not exist. However, by the great weight of authority the common-law rule prevails, notwithstanding both the joint-tenancy statutes and the married women's acts. Such is the holding in the following States: Arkansas, Indiana, Kansas, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Pennsylvania and Vermont. Even in these States the husband and wife may hold as tenants in common or as joint-tenants, if such an intention is clearly indicated in the instrument creating the estate. And the better opinion is that an absolute divorce terminates the estate by the entirety and reduces it to a tenancy in common.*-Hutchins' note.

1 Whittlesey v. Fuller, 11 Conn. 337; Sergeant v. Steinberger, 2 Ohio, 305.

2 See Robinson v. Eagle, 29 Ark. 202; Dodge v. Kinzy, 101 Ind. 102; Baker v. Stewart, 40 Kans. 442; Marburg v. Cole, 49 Md. 402; Lewis' Appeal, 85 Mich. 340; McDuff v. Beauchamp, 50 Miss. 531; Garner v. Jones, 52 Mo. 68; Buttlar v. Rosenblath, 42 N. J. Eq. 651; Bertles v. Nunan, 92 N. Y. 152; Long v. Barnes, 87 N. C. 329; Diver v. Diver, 56 Pa. St. 106; Corinth v. Emery, 63 Vt. 505. See, also, Pray v. Stebbins, 141 Mass. 219.

3 Jooss v. Fey, 129 N. Y. 17; Miner v. Brown, 133 N. Y. 308; McDermott v. French, 15 N. J. Eq. 78.

Stelz v. Schreck, 128 N. Y. 263; Harrer v. Wallner, 80 Ill. 197; Ames v. Norman, 4 Sneed (Tenn.), 683; contra, Lewis' Appeal, 85 Mich. 340.

BOOK III.

ESTATES IN LAND.

A. FEUDAL OR COMMON LAW ESTATEs.

1. Estates of Freehold.

CHAPTER I.

THE FREEHOLD.

BRACTON, 207. I must then in the first place examine the different kinds of tenements.

Now it is to be observed that a freehold tenement is that which a man holds to himself and his heirs in fee and in inheritance, or in fee alone, to him and his heirs. Land is also held as freehold when it is held only for life, or for an indefinite period, without any fixed limit of time, as for instance until such a thing happens or does not happen, as if it be said, "I give to such a one until I provide for him." But a tenement cannot be called a freehold which any one holds for a certain number of years, months, or days, though it be for a term of a hundred years, which exceeds the lives of Further, a tenement cannot be called a freehold which a man holds at the will of the lord and by favour,

men.

which may be revoked in season or out of season, as when a man holds from year to year or from day to day.

2 BL. COм., 103. The next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant has therein; so that if a man grants all his estate in Dale to A. and his heirs, everything that he can possibly grant shall pass thereby. It is called in Latin status, it signifying the condition, or circumstance, in which the owner stands with regard to his property. And to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed; and, thirdly, with regard to the number and connections of the tenants.

First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by its duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man: to determine at his own decease, or to remain to his descendants after him: or it is circumscribed within a certain number of years, months, or days: or, lastly, it is infinite and unlimited, being vested in him and his representatives forever. And this occasions the primary division of estates into such as are freehold, and such as are less than freehold.

An estate of freehold, liberum tenementum, or franktenement, is defined by Britton1 to be "the possession of the soil by a freeman." And St. Germyn tells us, that "the possession of the land is called in the law of England the franktenement or freehold." Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold: which actual possession can, by the course of the common law, be only given by the ceremony Dr. & Stud. b. 2, d. 22.

C. 32.

called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin, or, in tenements of any incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton,1 that where a freehold shall pass, it behooveth to have livery of seisin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates are conveyed with the same solemnity, therefore no others are properly freehold estates. Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute, or fee-simple; and inheritances limited, one species of which we usually call fee-tail.

An

LEAKE, LAND LAW, 43. Estates for life and estates of inheritance, being the estates admissible at common law in land of freehold tenure, are called freehold estates. estate for life is sometimes called specially an estate of freehold, or the freehold, as distinguished from the inheritance, which in this sense includes the freehold. "The word freehold is now generally used to denote an estate for life, in opposition to an estate of inheritance. Perhaps in the old law it meant rather the latter than the former. It is known that fees were held originally at the will of the lord; then, for the life of the tenant; that afterwards they were descendible to some particular heirs of the body of the tenant; then, to all the heirs of his body; and that in succession of time the tenant had the complete dominion or power over the fee. The word freehold always imported the whole estate of the feudatory, but varied as that varied." Thus, the term freehold is used to denote the quantity or duration of estates as well as the tenure of the land.

1$ 59.

Butler's note to Co. Lit., 266, b.