In states in which the statute provides that a conveyance or devise to two persons shall not create a joint tenancy unless an intention so to do is expressly declared, the question of what constitutes such an express declaration may be a somewhat difficult one. In one case the statement that the donees were to hold "jointly" was regarded as involving such a declaration,41 but in others a contrary view was adopted.42 A gift to two or more persons and the survivor or survivors of them has been regarded as showing an intention to create a joint tenancy,43 as has a gift to

21; 1 Stimson's Am. St. Law, 1371(B); Freeman, Cotenancy, Sec. 35.

38. 1 Stimson's Am. St. Law, Sec. 1371(A); 3 Sharswood & B. Lead. Cas. Real Prop. 20,

39. Parsons v. Boyd, 20 Ala. 112; Webster v. Vandeventer, 6 Gray (Mass.) 428; Gray v. Lynch, 8 Gill. (Md.) 403.

40. 1 Stimson's Am. St. Law, Sec. 1371(B) (3); 3 Sharswood & B. Lead. Cas. Real Prop. 26.

41. Case v. Owen, 139 Ind. 22, 47 Am. St. Rep. 253, 38 N. E. 395.

42. Davis v. Smith, 4 Harr. (Del.) 68; Cohen v. Hubert, 205 Mo. 537, 104 S. W. 84; Doran v. Beale, 106 Miss. 305, 63 So. 647;

Mustain v. Gardner, 203 111. 284, 67 N. E. 779; Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738 (in will not drawn by lawyer.)

In Wright v. Knapp, 183 Mich. 656, 150 N. W. 315, even the words "jointly, the survivor to have full ownership," were regarded as effecting the creation, not of a joint tenancy but of a tenancy in common. See . the criticisms in 28 Harv. Law Rev. 631, 24 Yale Law Journ. 432.

43. Stimpson v. Batterman, 5 Cush. (Mass.) 153; Blaine v. Dow, 111 Me. 480, 89 Atl. 1126; Wood v. Logue, 167 Iowa, 436, Ann. Cas. 1917B, 116, 149 N. W. 613.

Sec. 191 ] capacity as necessarily to exclude the identity of interest essential to joint tenancy.

Co-Ownership two persons for their joint lives, and to the survivor of them during his or her natural life.44 But whether the mere fact that the donor indicates an intention that the survivor or survivors shall take should be given such an effect appears to he open to question. The right of survivorship is merely one incident of a joint tenancy.45 Another incident of such tenancy is that any one of the tenants can destroy it, with the incidental right of survivorship, by a conveyance to a third person,46 and when one makes a gift to two or more with the right of survivorship, it appears to he a reasonable conclusion that he has in mind an indestructible right of survivorship. The view that there is in such a case a tenancy in common for life with a contingent remainder in favor of the survivor,47 or even that there is a tenancy in common in fee simple with an executory limitation in favor of the survivor,48 might seem more in accord with the intention of the grantor or testator.

- Joint disseisors. At common law, if two or more persons disseise another to their own use, the disseisors are joint tenants,48a and so it would seem that, at the present day, if two persons acquire land by adverse possession, they hold as joint tenants,48b unless there are special circumstances in the case to show that their interests are several.48c To a case of title thus acquired by adverse possession a statutory

44. Pritchard v. Walker, 22 111. App. 286.

45. "A tenancy in common with benefit of survivorship is a case which may exist, without being a joint tenancy, because survivorship is not the only characteristic of a joint tenancy." Per Bayley, J., in Doe d. Borwell v. Abey, 1 Maule & S. 434, quoted 2 Jarman, Wills, 1561. See also Taafe v. Conmee, 10 H. L. Cas.

78; Stones v. Heurtly, 1 Ves Sr. 165.

46. Post, this section, notes 54, 55.

47. Supra, this section, note 33.

48. Supra, this section, note 36. 48a. Litt. Sec. 278; Co. Litt. 181a. 48b. Putney v. Dresser, 2 Mete.

(Mass.) 586; Ward v. Ward, 6 Ch. App. 789.

48c. Smith v. Savage (1906), 1 Ir. Rep. 469 (beneficiaries under provision that a conveyance or devise to two or more persons shall prima facie create tenancy in common can obviously have no application.48d

- Corporate incapacity as joint tenant. It is a rule of the common law that an individual and a corporation cannot be joint tenants, and that consequently a transfer to them will make them tenants in common. For this there appear to be two reasons: firstly, that as a corporation has perpetual succession, there is no mutual right of survivorship,49 and, secondly, that the legal ownership of a natural person, which passes to his heirs or to his personal representatives, is so essentially different from the legal ownership of a corporation with perpetual succession that the two interests are incapable of coalescing in the manner necessary for the creation of a joint tenancy.50 This rule would seem to be of some practical importance at the present day, by reason of the tendency to regard trustees as joint tenants rather than tenants in common,51 and the not infrequent usage of appointing an individual and a trust company as joint trustees.

Not only is a corporation without capacity to take as joint tenant with an individual, but it appears to be without capacity to take as joint tenant with another corporation.52 It is so stated by early writers,53 as regards corporations sole, with a somewhat obscure explanation, that there is, in the case of different corporations of that character, such a diversity of right and a trust, who take possession as equitable tenants in common, and hold for the limitation period, acquire title as tenants in common.)

48d. Putney v. Dresser, 2 Mete. (Mass.) 586.

49. 2 Williams Saunders at p. 319, note (4) to Bennet v. Hol-bech; Law Guarantee, etc., Soc. v. Bank of England, 24 Q. B. Div.

406

50. See authorities last cited, and also 2 Blackst. Comm. 184.

51. Supra, this section, notes 39, 40.

52. Dewitt v. City of San Francisco, 2 Cal. 289; Telfair v. Howe, 3 Rich. Eq. (S. Car.) 235, 55 Am. Dec. 637.