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 .
21. Coley v. Ballance, Winston's Eq.(N. Car.) 89, Kennedy's Appeal, 60 Pa. 511; Yard's Appeal, 86 Pa. 125; Strong v. Ready, 9 Humph. (Tenn.) 168.
22. Lockhart v. Van Dyke, 97 Va. 356; Hoke v. Hoke, 12 W. Va. 427; Telfair v. Howe, 3 Rich. Eq. (S. Car.) 235, 55 Am. Dec. 637.
23. This appears to he conclusively demonstrated by Mr. Green, in the Appendix to Wythe's Virginia Reports.
24. The early law appears to have been uncertain. See appendix to Wythe (Va.), 377 and anonymous article in 13 Solicitor's Journal at p. 885.
25. Co. Litt. 70b; 2 Co. Inst. 34; 2 Blackst. Comm. 193.
Sec. 191 ]
If land be given to two persons and the heirs of their two bodies, and they be persons who may possibly intermarry, they would have, at common law, an estate in fee tail special, which will, upon the death of either, be enjoyed by the survivor during his or her life, and upon his or her death will, in case they intermarry, pass to the heirs of their two bodies.30 On the other
26. See Butler v. Archer, Owen 152; Fisher v. Wigg, 1 Salk. 390; hand, if the donees are persons who cannot possibly marry, as being of the same sex, or as being nearly related, it will be assumed that by the expression "heirs of their two bodies," was meant the heirs of the body of each, with the result that upon the death of the survivor, the heir or heirs of the body of each will have a moiety as tenant in tail, the joint tenancy giving place to a tenancy in common.31 In the cage, likewise, of inability of the two donees to intermarry, if the gift is in terms to them and their heirs, or to them and the heirs of each of them, the gift has been construed as one to the two donees as joint tenants for life, with remainder to their heirs general as tenants in common.32 In so far as in any jurisdiction tenancy in common is substituted for joint tenancy, without any statutory change in regard to estates in fee tail, the donees would, under gifts such as those above referred to, take as tenants in common, but otherwise, it seems, the operation of the gift would be similar to its operation at common law. In the case of a conveyance or devise to A and B and to the survivor of them, the tendency has been to regard the language used as showing an intention to create a cotenancy in A and B for their lives, with a
13 Solicitors' Journal at p. 885.
27. 2 Blackst. Comm. 180, Chitty's note; 4 Kent, Comm. 361; 2 Cruise, Dig. tit. 28, c. 1, Sec.Sec. 33-37; 2 Jarman, Wills, 1123; Lake v. Craddock, 3 P. Wms. 158; Jol-liffe v. East, 3 Brown Ch. 25; Rigden v. Vallier, 2 Ves. Sr. 258; Martin v. Smith, 5 Bin. (Pa.) 16 6 Am. Dec. 395. See editorial note in 23 Harv. Law Rev. 214.
28. Noble v. Teeple, 58 Kan. 398; Barclay v. Hendrick's Heirs, 3 Dana (Ky.) 378; Westcott v. Cady, 5 Johns. Ch, (N. Y.) 334, 9 Am.
Dec. 306; Caines v. Grant's Lessee, 5 Bin. (Pa.) 120; Telfair v. Howe, 3 Rich. Eq. (S. C.) 235, 55 Am. Dec. 637.
29. Greer v. Blanchar, 40 Cal. 194; Seitz v. Seitz, 11 App. D. C. 358; Noble v. Teeple, 58 Kan. 398; Barclay v. Hendrick's Heirs, 3 Dana (Ky.) 378; Campbell v. Her-ron, 1 Conf. R. (N. C.) 291; Martin v. Smith, 5 Binn. (Pa.) 16; Young v. De Bruhl, 11 Rich. Law (S. C.) 638; Lockhart v. Vandyke, 97 Va. 356, 33 S. E. 613; And see Powell v. Powell, 5 Bush (Ky.) 619.
30. Co. Litt. 20b, 25b; Bac. Abr.
Joint Tenants (G.); Edwards v. Champion, 3 De G. M. & G. 202, 215.
31. Litt. Sec. 283; Williams, Real Prop. (21st Ed.) 137; Fearne, Contingent Remainders, 36.
32. Wilson v. Atkinson (1892). 3 Ch. 1, discussed in 6 Harv. Law Rev. at p. 321.
At common law, if land was given to two persons for their lives, and after their deaths to the heirs or heirs of the body of one of them, the latter has a fee simple or fee tail by force of the Rule in Shelley's Case, while the former has merely a life estate. The former has, however, as joint tenant, a right of possession, after the death of the other, for the balance of his own life. Litt. Sec. 285; Co. Litt. 184a; Breed v. Osborne, 113 Mass. 318; Sprinkle v. Spainhour, 149 N. C. 223, 62 S. E. 910. A like view has been applied when the gift was to husband and wife and after their deaths to the heirs of one of them, a tenancy by the entireties being created, however, instead of a joint tenancy. Den v. Harden-burgh, 10 N. J. L. 42; Kimble v.
- Effect of statutes. In pursuance of the same policy as that of the courts in hostility to joint tenancy, it has been provided by statute in many states that a conveyance or devise to two or more persons shall create a tenancy in common, and not a joint tenancy, unless a contrary intent is plainly apparent, or, in some states, is expressly declared.37 In some states, the legislature has entirely abolished joint tenancy, making what would have been a joint tenancy at common law a tenancy in common.38
Mayor & Common Council of City of Newark (N. J. Eq.) 102 Atl. 637.
33. Vick v. Edwards, 3 P. Wms. 372; Re Harrison, 3 Anst. 83G; Quarm v. Quarm (1892), 1 Q. B. 184; Apgar v. Christophers, 33 Fed. 201; Hannon v. Christopher, 34 N. J. Eq. 459; Mittel v. Karl, 133 111. 65, 8 L. R. A. 655, 24 N. E. 553; Ewing v. Savary, 3 Bibb (Ky.) 235; Schulz v. Brohl, 116
Mich. 603, 74 N. W. 1012; Lewis v. Baldwin, 11 Ohio 352; Arnold v. Jack, 24 Pa. 57.
34. Oakley v. Young, 2 Eq. Cas. Abr. 537 pl. 6; Doe d. Young v. Sotheron, 2 B. & Ad. 628.
35. See Cheney v. Teese, 108 111. 473.
36. See Rowland v. Rowland, 93 N. C. 214.
37. 4 Kent, Comm. 361; 3 Shars-wood & B. Lead. Cas. Real Prop.
In some states, the statutes abolishing joint tenancy, or restricting the cases in which such tenancy may arise, have been held not to apply in the case of conveyances or gifts to two or more trustees, since it is desirable that they hold as joint tenants, rather than as tenants in common, so that a division of the legal title upon the death of one may be avoided,39 and a provision to this effect is frequently contained in the statute.40