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that their occupation is undivided, and neither of them knoweth his part in several.-Bacon's Abr. tit. “Joint-tenants," &c. (A); Noy's Max. ch. 6 and 7; 2 Black. Com. ch. 12 ; Co. Litt. 185a ; Burton's Comp. p. 12, s. 36; 1 Steph. Com. chap. 8; 3 Bart. Elem. Conv. 412; Abridgm. of Preston on Abstracts in 1 Week. Law Mag. 344 (62), 362 (68).
A marked distinction between joint-tenancy and tenancy in common arises from the doctrine of survivorship, which takes place in the former, but not in the latter kind of tenancy.-Noy's Max. ch. 6; 2 Black. Com. 183; Litt. ss. 280, 281 ; Com. Dig. tit. “Estate" (K.1); Bacon's Abr. tit. “Joint-tenants,” &c. (I.); Co. Litt. 181; 3 Bart. Elem. Conv. 412; Abridgm. of Preston on Abst. in 1 Week. Law Mag. 344 (62).
It may be observed that the common law prefers a joint-tenancy to a tenancy in common, whilst equity prefers the latter.—Burton's Comp. p. 62, s. 165 ; Rigden v. Vallier, 2 Ves. 252; 1 Sand. Uses, 124; Fisher v. Wigg, 1 P. Will. 14; Goodtitle v. Stokes, 1 Wils. 341; Denn v. Gasken, Cowp. 660 ; Stones v. Hartley, 1 Ves. Sen. 165; Bacon's Abr. tit. “ Joint-tenants," &c. (F). But see Stratton v. Best, 2 Bro. Ch. Cas. 233; Staples v. Maurice, 7 Bro. Parl, Cas. 48 ; Cholmondley v. Clinton, 2 Merivale, 314; Sugd. Gilb. Uses, 143; Note by Mr. Bythewood to Noy's Max. ch. 7; Salk. 392; Aveling v. Knipe, 19 Ves. 444; Abridgm. of Preston on Abst. in 2 Week. Law Mag. p. 29, where joint tenants should be substituted for tenants in common, in col. 1, 5th line from bottom; 1 Stepb. Com. 325, 326 ; 3 Bart. Elem. Conv. 424.
2. An estate in fee simple is where a person has lands, tenements or hereditaments, to hold to him and his heirs for ever, generally, absolutely and simply, without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law.–2 Black. Com. 104; Litt. s. 1 ; Watk. Conv. ch.9; 2 Woodd. Vin. Lect. 1. 19; Burton's Comp. ch. 1 ; Noy's Max. ch. 3; 2 Barton's Elem. of Convey. 4; 1 Steph. Com. 220.
An estate tail is where the estate is limited to the issue or heirs of the body of the first donee, as he is called, in exclusion of his heirs general, as a brother, or other collateral relation, who might inherit lands in fee simple.--2 Woodd. Vin. Lect. 1. 19; 2 Black. Com. 112; Watk. Conv. ch. 8; Burton's Comp. 242; Noy's Max. ch. 4; 1 Steph. Com. 228 ; 2 Bart Elem. Conv. 53.
The word “heirs” is necessary in a grant to create a fee-simple, and the words “heirs of his body,” or some other words of procreation, are necessary to make a fee-tail. Thus a grant to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring, gives in these instances a life estate only, the words of inheritance, his heirs, being omitted. So, on the other hand, a gift to a man, and his heirs male, or female, is an estate in fee-simple, and not in fee-tail ; for there are no words to ascertain the body out of which they shall issue. -Beresford's Case, 7 Co. Rep. 40; 2 Black. Com. 115 ; Co. Litt. 20a, "; 1 Ventr. 228; 1 P. Will. 67 note; Burton's Comp. p. 245, s. 651 ; 2 Bart. Elem. Convey. 64 to 79; 1 Steph. Com. 231. Frogmorton v. Wharrey, 2 W. Black, 728; 3 Wils. 125, 144, S.C. In wills, however, an estate tail may be created by a devise to a man and his seed, or to a man and his heirs male, &c.—Co. Litt. 9b, 27a; Att. Gen. v. Bamfield, 2 Freemi. 268 ; Roberts’ Wills, ch. 4, s. 5; 2 Black. Com. 115; Noy's Max. ch. 4; Cowp. 833; 6 Cruise's Dig. 288; Burt. Comp. p. 246, s. 656; Nanfam v. Legh ; 7 Taunt. 85 ; Co. Litt. 20 b. note (2); 2 Fonbl. Equity, 57, 1 Ld. Raym. 185; 2 Bart. Elem. Conv. 80 ; 1 Steph. Com. 232; Abridgm, of Preston on Abst. in 1 Week. Law Mag. 170 (24).
3. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law or particular custom. By common law: as where a person seized in fee simple or in fee tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they shall all inherit; and these co-heirs are then called coparceners; or, for brevity, parceners only. Parceners, by particular custom, are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c.; and in either of these cases all the parceners put together make but one heir, and have but one estate among them.—2 Black. Com. 187; Litt. ss. 241, 242, 254, 265; Co. Litt. 163, 164; Burton's Comp. p. 180; Noy's Max, ch. 5; Bac. Abr. tit. “ Coparceners” (A.); Com, Dig. tit. “Parceners” (A. 1); 1 Steph. Com. 319; 3 Bart. Elem. Conv. 472; Abridgm. of
Prest. Abst. in 1 Week. Law Mag. 360 (66).—Coparcenary is intermediate in its nature between joint-tenancy and tenancy in common.
There is unity of title, but no benefit of survivorship; for the share of a coparcener dying, seized descends to her heir, who also holds it as coparcener. A joint tenant cannot convey to his companion by feoffment, and tenants in common cannot release to each other, but coparceners may do either.—Burton's Comp. p. 180, s. 317; Co. Litt. 164a ; 2 Black. Com. 188; Com, Dig. tit. “ Parcener” (A. 6); 3 Bart. Elem. Conv. 416, 474, 478; 1 Steph. Com. 319; Abridgm, of Prest, Abst. in 1 Week, Law Mag. 361 (67).
4. By the 7 Will. 4 and 1 Vict. c. 26, no will, whether of realty or of personalty, made by a person under twenty-one years of age, on or since the 1st of January, 1838, is valid.
Previously to this statute an infant might make a will of chattels (though not of land, except by special custom) at eighteen, if not before.-Co. Litt. 89b and note (6); Burton's Comp. p. 364, s. 937 ; Comyn's Dig. tit. “ Devise” (H. 2); 2 Black. Com. 497 ; Shelf. Will
Act, 122, 123 ; Bac. Abr. tit. “Wills” (B); Noy's Max. ch. 45; Swinburne, pt. 11, s. 2; 2 Vern. 469.
A married woman may make a will of goods by her husband's consent: but it seems that a general consent is not sufficient; it must be a consent to that particular will, and if the husband survive, must continue after her death; though where there is a general consent by agreement before marriage, the particular consent will, in the absence of evidence to the contrary, be presumed. But if the wife survive, her will so made will not affect any property which she may acquire after her husband's death.- Burt. Comp. p. 364, s. 938; Doct. and Stud. dial. 1, c. 7; Bro. Abr. tit. “Devise,” 34 ; Strange's Rep. 891 ; Cro. Car. 376; Noy's Max. ch. 45; 2 Week. Law Mag. 264, where several other cases and authorities are referred to.
A married woman may make a valid will of goods which she has, as executrix or administratrix ; so for the purpose of continuing the executorship.-2 Black. Com. 498; Burton's Comp. p. 371, s. 964 ; 2 East 556, 558; 1 Salk. 306 ; Bacon's Abr. tit. “Wills” (B.); Plowd. 526, cont.; Noy's Max. ch. 45; 2 Week. Law Mag. 264.
A woman whose husband is banished by act of parliament for life, may make a will.-Portland v. Prodger, 2 Vern, 104 ; Bacon's Abr. tit. “Wills” (B.), and other cases referred to in 2 Week. Law Mag. 264.
As to Lands, a married woman may make a will of them in execution of a power reserved before marriage.--Peacock v. Monk, 2 Ves. Sen. 191 ; Doe v. Staple, 2 Term. Rep. 695. As to the modes usually adopted, and for other cases on the subject, see 2 Week. Law Mag. 264. A consent after marriage will not be sufficient.-Curteis v. Kenrich, 9 Sim. 451 ; 2 Roper's Husb. and W. ch. 19, s. 1; 2 Week. Law Mag. 264. The same distinctions are to be observed in cases where the wife has only a trust estate.-2 Eden, 258 ; 9 Simons, 451 ; 2 Week Law Mag. 264.
By the 7 W. 4, and 1 Vict. c. 26, no will by a married woman shall be valid, except such as might have been made by a married woman before the act.
6. Since the 7 Will. 4 and 1 Vict. c. 26, A. would take a fee-simple, if the testator had such an interest. For by section 28 of that statute it is enacted, where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee-simple, or the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will.”
The case was different before the above statute, for it was held that a devise of lands, &c., or the rest and residue of the testator's hereditaments, to A., without any expression or hint of the estate which he was to take therein, gave him an estate for life only.-Burton's Comp. p. 122, s. 284; Denn v. Mellor, 5 Term. Rep. 558; 2 Bos. and P. 247; Doe dem. Lean v. Lean, 4 Per. and Dav. 662; 1 Adol. and Ellis, N. S., 229.
7. The 25 Geo. 2, c. 5, makes void every beneficial devise, legacy, estate, interest, gift, or appointment of or affecting any real or personal estate, other than and except charges on lands, &c., for payment of any debts, to persons attesting the execution of such will or codicil, or any person claiming under him, and enacts that such persons shall be admitted as witnesses to the execution of such will or codicil, within the intent of the 29 Car. 2, c. 3, notwithstanding such devise, &c. -See 1 Ld. Raym. 505; 2 Stra. 1253; 1 Ves. Sen. 503; Bac. Abr. tit. “ Wills" (D); 2 Black Com. 377. It would seem that even under this statute, on a devise of real property to the wife of one of the witnesses, the husband would not have been a good witness.-Burt. Comp. p. 113, s. 265; Hatfield v. Thorp, 5 B. & Ald. 589.
The Act of 25 Geo. 2, is repealed by section 15 of 7 W. 4, & 1 Vict. c. 26, which, however, re-enacts the provisions and extends them to the case of any benefit (other than a provision for payment of debts) conferred on the wife or husband of the person attesting the will. The language of the section is, “ That if any persou shall attest the execution of any will, to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment of, or affecting any real or personal estate, other than and except charges and directions for the payment of any debt or debts shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such persons attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife, or husband, be utterly null and void ; and such person so attesting shall be admitted as a witness to prove the execution of such a will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, &c. mentioned in such will.”—See 2 Curt. 336, 374, 916; M*Kenzie v. Yeo, 2 Curt. 509.
By sec. 16, a creditor, whose debt is charged by the will, and who attests, or whose wife or husband attests the will, is a competent witness to prove the execution, or the validity, or invalidity of the
8. The answer to this question depends on the sort of conveyance made use of. If the conveyance were a bargain and sale, A. would have the legal estate ; for from the very nature of the assurance, A. has, in the first instance, an use merely, and there can be no use upon an use. It follows, therefore, that B. has what is denominated a trust estate; in other words, an estate not executed by the Statute of Uses.Com. Dig. tit, “ Bargain and Sale” (B. 3); “ Chancery” (4 W.2); Popham, 81; Bendloe, 61 ; Dyer, 155, pl. 20; 1 Anderson, 37, 136 ; 1 Prest. on Abst., 307; Abridgment of same, in 1 Week. Law Mag., 231 ; Noy's Max., 305, 309, notes by Bythewood; 2 Story's Eq.
first useinsferring bibent.-Baccase,
Jurisp. 212 ; Sharrington v. Storton, Plowd. 301 ; Bacon's Abr. tit. - Uses and Trusts” (E.); 2 Black. Com. 335; 1 Steph. Com. 492.
But if the conveyance were by lease and release, feoffment, or other deed operating by transmutation of possession, B. would take the legal estate, as A. would be in by the common law, and the conveyance operating by transmutation of possession, the Statute of Uses would transfer the possession (of A.) to the use (viz., to B., the party who would, previous to the Statute of Uses, have had the use).-See Samme’s Case, 13 Coke's Rep. 56; Long v. Buckeridge, 1 Stra. 111 ; Gilb. Rep. 16, 17; Co. Litt., 271", notes; Burton’s Comp., ch. 1, s. 2; Bacon's Abridgm. tit. “ Uses and Trusts” (E.); Noy's Max., p. 305, notes by Bythewood, 2 Steph. Com, 344, 491, 497 ; 1 Sand. Uses, 173; 2 id. 13, 72. If in the above question the conveyance had been to the use of A., or unto and to the use of A. in trust for B., then A. would take the legal estate, and B. would have an equitable estate only. The reason is that there cannot be an use upon an use, or in other words, that the statute only executes the first use; consequently the statute operates to give A. the legal estate, by transferring his possession to the use for himself, and then the force of the statute is spent.-Bacon's Reading on the Stat. of Uses, 43; Tracts, 335, 2nd ed.; Tyrell's Case, Dyer, 1552 ; Gilb. Uses, 161 ; Garland v. Sharp, Cro. Eliz. 382; Att.Gen. v. Scott, Cas. temp. Talbot, 139; Burton's Comp. p. 52, ed. by Cooper; 1 Sand. Us. 155.
9. If a first mortgagee, without notice of a second mortgage, advance a further sum to the mortgagor, he will be entitled to priority over the second mortgagee, if the further advance be expressly charged upon the land by writing ; or be attached to it by the general lien of a statute or judgment, and not merely secured by a bond, or other personal engagement.-Coote's Mortg. 394; Prec. Cham. 226; Burt. Comp. p. 550, s. 1486; Shepperd v. Titley, 2 Atk. 352; Brace v. Duchess of Marlborough, 2 P. Will. 494; Bacon's Abr. tit. “Mortgage” (E.); Goddard v. Camplin, 1 Cha. Cas. 119; Morritt v. Haske, 2 Atk. 52; Powis v. Corbet, 3 Atk. 556 ; Lowthian v. Hasel, 3 Bro. Ch. Cas. 162; 1 Powell on Mortg. p. 525, by Coventry ; and see Baker v. Harris, 16 Ves. 397.
10. A registry of a second mortgage will not of itself be notice to a first mortgagee, so as to prevent him from tacking for his subsequent advance.-Bedford v. Backhouse, 1 Eq. Cas. Abr. 615, pl. 12; Wrightson v. Hudson, 2 Eq. Cas. Abr. 609, pl. 7; Le Neve v. Le Neve, 4 Bro. Parl. Cas. 465; Abridgm. of Preston's Abst. of Titles in 2 Week, Law Mag. p. 42; 2 Powell on Mortg. ch. 14, p. 618, by Coventry ; 2 Sugd. Vend. & Purch. p. 219, 9th ed. See as to the Irish Registry Acts, a contrary decision, in Bushel v. Bushel, 1 Scho. & Lef. 90, 137; 2 Sugd. Vend. & Purch. 220, note 9th ed.
11. A term for years will merge in the freehold or inheritance, for it