CHAPTER V.

ESTATES CLASSIFIED AS TO THE NUMBER OF

OWNERS.

SECTION 43. IN GENERAL.

Estates are divided, as regards the number of owners, into estates in severalty and joint estates. An estate in severalty is one where there is individual ownership. An estate of this character needs no further explanation. Joint estates include all those estates where two or more persons have a right of ownership or possession in the same land at the same time. Joint estates are subdivided into joint tenancies, estates in common, estates in entirety, estates of coparcenary, and estates held by partnerships.

SECTION 44. JOINT TENANCY.

A joint tenancy is an estate held by two or more persons jointly so that during the lives of all they are equally entitled to the enjoyment of the land. Upon the death of one, his share vests in the survivor or survivors until there is but one survivor, when the estate becomes one in severalty in him. There may be a joint tenancy in fee, for life, or for years. A joint tenancy can only be created by purchase; it cannot be acquired by descent.

In the creation of a joint tenancy, four unities must be present, viz.; interest, title, time and possession. One tenant cannot hold for life and another in fee or one by one deed and another under a will. The estate of all must vest at the same time in order that there may be unity of time. One tenant cannot hold in possession

and another in reversion or remainder. Joint tenants, thus, must have one and the same interest arising from one and the same conveyance, commencing at one and the same time, and held by one and the same possession. Another incident of joint tenancy is the peculiar doctrine of survivorship.

Survivorship is the doctrine whereby the interest of a joint tenant upon his death falls to the survivor or survivors among the joint tenants.

A joint tenancy and the right of survivorship, however, may be destroyed by a conveyance by one joint tenant to a stranger. Such stranger at once becomes a tenant in common and the alienation thus destroys the survivorship. If there be more than two joint tenants the conveyance by one of his share will not affect the right of survivorship among the others, who are still joint tenants as to each other.

Formerly a joint estate was presumed to be a joint tenancy unless the contrary clearly appeared. At the present time however the law does not favor joint tenancies and every joint estate is held to be a tenancy in common, unless the instrument creating the estate expressly declares that the tenants shall hold in joint tenancy.

SECTION 45. TENANCY IN COMMON.

A tenancy in common is a joint estate without the four unities required in a joint tenancy. The only unity required is that of possession. Like joint tenancies, tenancies in common may be either in fee, for life, or for a terms of years. The holder of an estate in common has full power of alienation, and such an estate descends to his heirs.

"The common law rule was that all estates,

acquired by purchase, under circumstances which prevented the presence and existence of the so-called four unities, were tenancies in common.

"The general rule at present in this country, is, that all joint estates are held to be tenancies in common, where they are not expressly made joint tenancies, whether acquired by purchase or descent, except in the few localities where tenancy in coparcenary may still exist. In a tenancy in common, the only unity necessary is that of possession. The estates, the titles, and the times of enjoyment may all be different."

SECTION 46. ESTATES BY ENTIRETY.

An estate by entirety was the estate which was formerly created by the gift, conveyance, bequest, or other transfer of real estate to husband and wife. They were said to hold by entireties instead of by moieties. The survivor of the two took the whole estate and there was no way in which this right of survivorship could be defeated. Estates by entirety were abolished in Illinois in 1857.

The Supreme Court of Illinois has held,1 that a decree of divorce will change an estate by entirety into an estate in common. The contrary doctrine has been held in a number of states.

SECTION 47. ESTATES IN COPARCENARY.

An estate in coparcenary was the joint estate which according to common law, was vested by descent in the heirs of an intestate. Such estates were like tenancies in common in that the doctrine of survivorship did not obtain, but the respective shares of the tenants in coparcenary were inherited by their heirs. The doc1 Harrer vs. Wallner, 80 Ill., 197.

trine of coparcenary has never prevailed in this country except in the single state of Maryland.

Coparcenary arose where a person who was seised in fee simple or in fee tail died and his next heirs were two or more females, his daughters, sisters, aunts, cousins, or their representatives. It also extended in gavelkind to all the males in equal degree as sons, brothers, uncles, etc. In either of these cases, all the coparcenaries put together made but one heir.

The right of partition first existed in the case of estates of this character.

SECTION 48. PARTNERSHIP ESTATES.

The rights of an individual partner in lands held by the partnership is an anolomous one. The title must be in members of the firm, or some of them as the Common law does not recognize the existence of a partnership as an artificial person. The right of partner, however, in partnership property is only to his share of the excess of the firms' assets over its liabilities and just what this excess consists of, can never be determined during the continuation of the partnership. Upon the dissolution of a partnership the partners become tenants in common as to the lands owned by the partnership.2

For a further treatment of this subject see Partnerships, Volume VIII, Subject 33.