This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
9. Co. Litt. 185a; 4 Kent, Comm. 360; 2 Cruise, Dig. tit. 18, c 1, Sec.Sec. 53-56; Freeman, Coteancy, Sec.14
10. Post, this section, notes 54, 55.
16. Powell v. Allen, 75 N. C. 450.
17. Jones v. Cable, 114 Pa. 58G, in spite of the statute, a gift to two persons expressly as joint tenants and not as tenants in common has been regarded as sufficiently showing an intention to give a right of survivorship.18 Occasionally a gift in terms to two persons, with a provision that "after their death" the land should pass to another, has been regarded as showing an intention to create a right by way of survivorship as between such persons, within the exception to the operation of the statute, the survivor having the possession until his death.,18a
- Failure of gift to one joint tenant. Somewhat analogous to the doctrine of survivorship, and like it based on the theoretical nature of a joint tenancy, is the rule that in the case of a devise to two or more persons, in such form or under such circumstances as otherwise to make them joint tenants, if it is ineffective as to one by reason of his death or incapacity to take, or for some other reason, the devise is effective in favor of the other person or persons, as to the entire subject of the gift, they taking the whole.19 And the same rule applies in the case of a conveyance inter vivos to two or more persons as joint tenants, which is for any reason not effective in favor of one of such persons.20
7 Atl. 791; In re McCallum's Estate, 211 Pa. 205, 60 Atl. 903.
18. Redemptorist Fathers v. Lawler, 205 Pa. 24, 54 Atl. 487.
18a. Kerr v. Vernon, 66 Pa. 326; Jones v. Cable, 114 Pa. 586, 7 Atl. 791; Lazier v. Lazier, 35 W. Va. 567, 14 S. E. 148. And see Mc Cal-lister v. Folden, Assignee, 110 Ky. 732, 62 S. W. 538.
19. Jarman, Wills (6th Ed.) 429, 1799; Humphrey v. Tayleur, 1 Ambl. 136; Rockwell v. Swift, 59 Conn. 289, 20 Atl. 200; Cray-croft v. Craycroft, 6 Harr. & J. (Md.) 54; Jackson v. Roberts, 14
Gray (Mass.) 546; Ball v. Deas, 2 Strobh. Eq. (S. C.) 24, 49 Am. Dec. 651; Gilbert v. Richards, 7 Vt. 203.
20. Shelly's Case, 1 Co. Rep. 93b, 101a; Davies v. Kempe, Carter 5, Orl. Bridgm. 386; Overton v. Lacy, 6 T. B. Mon. (Ky.) 13, 17 Am. Dec. 1ll; McCord v. Bright, 44 Ind. App. 275, 87 N. E. 654; Sheppard's Touchstone, (Preston's Ed.) 71, 82, 235; And the numerous authorities cited in Appendix to Wythe's Virginia Reports at pp. 373-375.
Statutes, such as have been adopted in a number of states, doing away with survivorship as an incident of joint tenancy, can evidently not be regarded as doing away with joint tenancy itself. Occasionally, however, such a statute has been regarded as applying in case of the death of one of the persons named, even when it occurs before the death of the testator,21 but the contrary view, which has also been judicially asserted,22 appears to be preferable on principle. The common law rule that, in case one of those to whom a devise is made as joint tenants, dies before testator, the survivors take the whole, involves the application, not of the doctrine of survivorship, but, as above indicated, of a general rule, based on the theoretical nature of the tenancy, that if one of the joint devisees fails to take, for any cause whatsoever, the others take the whole.23
- Mode of creation. The common law judges, though not perhaps at first,24 at a quite early period commenced to favor joint tenancy as against tenancy in common, with the result that, by a conveyance to two or more persons, with nothing to indicate a contrary intention, a joint tenancy was regarded as created. This leaning in favor of joint tenancy would seem to indicate a desire to lessen the feudal burdens of the tenants, since only one suit and service was due from all the joint tenants,25 and on the death of one joint tenant the other acquired his share free from the burdens in favor of the lord which ordinarily accrued contingent remainder in favor of the survivor,33 unless words of inheritance, used as applying to both A and B, or other circumstances, indicate an intention to create a fee simple in each.34 In either case, at common law, A and B would take as joint tenants, but the statutes creating a presumption in favor of tenancy in common would tend to prevent this result,35 and any rights accruing by reason of survivorship would be based on the express limitation in favor of the survivor. By reason, moreover of the modern statutes creating a presumption in favor of the passing of a fee simple rather than a life estate, language which at common law made A and B joint tenants for life with remainder to the survivor, might occasionally be regarded as making them tenants in common in fee simple, subject to cross executory limitations between them, that is, with a limitation over, as to the moiety of A, in favor of B, in case of A's death before B and a like limitation over in favor of A, as to B's moiety, in case of B's death before A.36 on the death of the tenant of land.26 With the practical abolition of tenures, however, the reason for such policy ceased, and thereafter courts of equity, regarding the right of survivorship as productive of injustice, in making no provision for posterity, showed a disposition to lay hold of any indication of intent in order to construe an instrument as creating a tenancy in common, and not a joint tenancy.27 The same position has been taken by the courts generally in this country.28 In spite, however, of the prejudice on the part of the courts against joint tenancies, in the absence of any statutory provision on the subject existing at the date of the instrument in question, a conveyance or devise to two or more will ordinarily create a joint tenancy if there are no words indicating an intention that they shall take separate interests.29