effects of joint-tenancy being very necessary to be understood, I shall here be somewhat particular in describing it; and then shew how a joint-tenant may obtain power for devising his part by will. Joint-tenancy is where two or more persons come to and hold an estate jointly by one title, and those persons are called joint-tenants, because the estate is conveyed to them jointly; as where a man seised or possessed of an estate in fee-simple, makes a conveyance to two or more and their heirs, or makes a lease to them for life, or where two or more have a joint estate in a chattel real or personal, or a joint-estate in a debt, duty, covenant, contract, &c. it is a joint-tenancy, and the part of him that dies, goes not to his heir, executor, or administrator, but the whole to the survivors or survivor'; and a will made by a joint-tenant during the continuance of the jointtenancy is not a good will, even as to his share of the estate under the statute of wills, notwithstanding a subsequent severance of the joint-tenancy by a partition made after the making of the will and before the testator's death, unless there be a republication of it after the partition (2). But as to joint merchants for the wares, merchandizes, debts, or duties, that they have as joint-merchants, or partners, the same shall not survive, but shall go to the executors or administrators of him that dieth, by the law of merchants, which is part of the laws of this realm for the advancement and continuance of commerce and trade, as being for the public good. And for the encouragement of husbandry

y 2 Black. Com. 399. z Burr. 1488.

a Co. Litt. 182.

(2) A joint-tenant, while such, cannot devise although he survive, for until he has survived he has not any devisable interest. After he has survived he has a several seisin, and is then competent in point of ownership to make an effectual will. The owner of an estate in joint-tenancy may acquire a power of alienation by will, by severing the joint-tenancy; and this should be done as a preliminary step, before any attempt is made to devise. Watk. Pr. Conv. (ed. Preston) 82.

and trade, it is held, that a stock on a farm, though occupied jointly, and also a stock used in a joint undertaking by way of partnership in trade, shall always be considered as common and not as joint-property, and there shall be no survivorship therein. So that it may be in the power of the joint-merchant, joint-trader, or farmer, to devise his share by will; and in case he dies without will, the same shall go to his administrators: and the surviving partner is considered in equity barely as a trustee for the representatives of the deceased: upon which footing the accounts must be taken, and nothing considered as the share of the survivor till afterwards; because of the continuance of the property in the stock to the representatives of the deceased partner, who has a specific lien thereon, although the survivor afterwards dies or becomes bankruptc.

In order to shew how one joint-tenant may obtain power to devise his part by will, we may first take notice of the difference between joint-tenants and those called tenants in common; and then proceed to shew how a joint-tenancy may be turned into a tenancy in common by either of the tenants, and from that brought into a separate estate. Jointtenants have the estate by one joint title and in one right, and tenants in common by several titles, or by one title and by several rights, but this property is common to them both, viz. that their occupation is undivided, and that neither of them knoweth his own separate part, both having a unity of possession, so that neither tenant is possessed of any particular part of the estate, but each hath a share in and throughout the whole; and, as has been observed, an estate held in joint-tenancy goes to the survivors or survivor, and never descends to the heir nor goes to the executor or administrator of the deceased, except in the case of jointmerchants, traders, &c. But of an estate held by a tenancy in common, either of the tenants may dispose of his part to whom he pleases by will, and the devisee or devisees to

b

2 Black. Com. 399. • MSS.

d Co. Litt, 189.

whom the same is devised will have a good title thereto; and in case the estate is not devised by will, and one of the tenants thereof dies intestate, his share will descend or go to his issue or next of kin e.

The creation of an estate in joint-tenancy depends on the wording the deed or devise by which the tenants claim title; for this estate can only arise by purchase for grant, that is, by the act of the parties, and never by mere act of law 8. If an estate be given to two or more persons without adding any restrictive, exclusive, or explanatory words, as if an estate held in fee-simple be devised to A and B and their heirs this makes them joint-tenants in fee thereof; so if it be given to A and B for their lives, it makes them jointtenants for life. So if a chattel real, as a leasehold estate for years, or any chattel personal, as a horse, a piece of plate, or any household goods, be given to two or more persons without adding any restrictions, exclusions, or explanatory words, they are joint-tenants thereof. A tenancy in common may be created by express limitation, but care must be taken not to insert words which imply a joint-estate; but as in this respect there is great nicety in wording of wills as well as deeds, it is the most usual as well as the safest way, when a tenancy in common is meant to be created, to add express words of exclusion as well as description, and limit the estate, whether real or personal, to A and B [the persons to whom it is limited] to hold as tenants in common, and not as joint-tenants ↳.

Joint-tenancies may at any time be turned into tenancies in common at the election of either of the joint-tenants; for if one joint-tenant aliens or conveys his estate to a third person, the joint-tenancy is severed and turned into a tenancy in common; for the grantee and the remaining joint-tenant hold by different titles (one derived from the original, the other from the subsequent grantor;) and if a joint-tenant in fee makes a lease for life of his share, this

defeats the jointure ; so if there be three joint-tenants and one of them aliens to another that which to him belongeth, in this case the alienee is tenant in common with the other two joint-tenants, but the other two are seised of the two parts which remain jointly, and of these two parts survivorship will take place; and if one of the three jointtenants leases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure1. When a joint-tenancy is turned into a tenancy in common, any of the tenants in common, as has been before observed, may devise their share by will, or the same if not devised will descend or go to their issue or next of kin ; yet the devisees or issue will not have an estate in severalty or any separate estate; but will still be tenants in common, and till partition made, the unity of possession will continue; for there are only two ways by which estates held as tenancies in common can be dissolved; the one is by uniting all the titles and interest in one tenant by purchase or otherwise, whereby the whole may be brought to one severalty, or the whole estate vested in one of them; the other is by making partition m; which if they mutually agree, they may make when they please between themselves; but if they cannot mutually agree to divide, they may have recourse to the writ framed upon the statutes 31 Hen. VIII. c. 1. and 32 Hen. VIII. c. 32. whereby all joint-tenants and tenants in common, either of estates of inheritance or other less estates, are compellable to make partition ".

From hence we may perceive, that a man by his own act may obtain power for disposing by will of his share in the estate which he held in joint-tenancy. So where a man is seised of such estate in fee-tail as by virtue of a fine or recovery may be conveyed, of which mention is made in the appendix to this work; he may obtain power to devise the same by will. But if the joint-tenant, or tenant in tail, make

i 2 Black. Com. 185, 186.

k Co. Litt. 189.

12 Black. Com. 186.

m 2 Black. Com. 194.

Ibid. 185.

his will before severance of the joint-tenancy, or barring the entail, the devise will be void; therefore if the jointtenancy be afterwards severed, or the intail barred, the testator should republish his will, as thereby the same may be made effectual for passing the estate. With respect to dower, mentioned in the former part of this work, we may here, by way of reminding the reader of what has heretofore been said concerning it, just observe, that a wife cannot be barred thereof by her husband's will, unless after his death she accepts of any thing given her thereby as in lieu or satisfaction for her dower (3).

(3) The general doctrine on this subject, upon which all the cases agree, has been stated as follows: the right to dower being in itself a clear legal right, an intent to exclude it must be demonstrated by express words, or by clear and manifest implication; the instrument must contain some provision inconsistent with the assertion of the right to demand dower. It must appear there is a repugnancy between the two claims, or the wife will not be put to elect between them. Arnold v. Kempstead, 2 Eden, 236. Strahan v. Sutton, 3 Ves. 249. Birmingham v. Kirwan, 2 Sch. & Lef. 444. Lord Dorchester v. Earl of Effingham, Coop. 319. Greatorex v. Cary, 6 Ves. 615. Chalmers v. Storil, 2 Ves. & Bea. 222. Miall v. Brain, 4 Madd. 119. Butcher v. Kemp, 5 Madd. 61. There has, however, been a considerable difference of opinion as to the application of this rule to the case of a devise of an annuity to the widow charged upon the real estate. The first case in which the question arose, (for the early cases merely decided that the gift of an estate to another person did not exclude the wife from claiming dower) was that of Pitts v. Snowden, before Lord Hardwicke, cited 1 Bro. C. C. 292. His Lordship there held, that a devise to the widow of an annuity, with a clause of entry, did not bar her of her dower. This was followed by Arnold v. Kempstead, 2 Eden, 236., in which Lord Northington determined against the claim of the widow, and held that she must elect to take either her dower or under the will. The next case was Villareal v. Lord Galway, Amb. 682. S.C. 1 Bro. C. C. 292. before Lord Camden. His Lordship having the two conflicting authorities before him, adopted the opinion of Lord Northington, and was