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Charles Viner.

A general abridgment of law and equity : alphabetically digested under proper titles, with notes and references to the whole (Volume 14) online

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Online LibraryCharles VinerA general abridgment of law and equity : alphabetically digested under proper titles, with notes and references to the whole (Volume 14) → online text (page 79 of 103)
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M. Bend!.

But equally II. A Dsvifc to two ej'jally to be divided bet-ween thcm^ and to the Sur-
dividcd k- c^jci^q/- cf them, malccs a Jointenancy, on the expreis import of the lafl:
tJ^'^houfadd- Words. Per Hale. Vent. zi6. Trin. 24 Car. 2. E. R. in Gale of King v.

injr more, Mclling.

makes a Tc- _ .

nancy in, Common, Vern.52. Hill. i(5Si. Tiiickncfs v. Vernon. Tho' the Words (equally to bi

divided betwixt them) fomctimes in a Will may make a Tenancy in Common, only bv Way of Con-
flruciion, and that it was the Intent of the Tcftatov, that tliere fliould be a Divifion or Partition,
yet if afterwards, in the Will, it in declared it flioald go to the Surtnor, that would ouii facli Conftruc-
tion, and it would be a Joint-Eftate, even in the Cafe of a Devife by Will. 2 Vern. 523. Mich.
1694. Clerk V. Clerk and Lady Turner. S. P. Sti. 2U. Hurd v. Lenthall.

12. A. Devife to A. and B. paying 25/. per Ann. cut of the Rents to
C. during his Lite, viz. 12/. loi. by each of them, is a Tenancy in
Common ^ per Jeiieries. C Vern. 353. Mich. 1685. Kew v. Roule.

13. A. devifed to B. his Daughter, and to C D. and E. his Grand-
daughters by another Daughter deceafed the Rents of .S". for '^o IlarSy
to hold by equal Parts, viz. B. to have the Adoicly, and the three Grand-
daughters the other Moiety, and if either die before the 30 Years expired,
then the faid 'Term to be for the Benefit of the Sm - vivor, and if they all
die, then the fime ^'^ as devifed over to others. The W ords of the Will
lliew them to be Tenants in Common ; For equally to be divided runs
to the Moieties. Adjudged and affirmed in Error. 3 Mod. 209. Palch.
4Jac. 2. B. R. Anon.

S C. Wms's i^_ A Truft by Devife was that the Pro/its lliould be equally divided
^^^P- 54- to i,^fr^,^^fj ]i^_ fyis Wife, and B. his Daughter during the Life of M. and after
f-oi.rtates M's Death to the Ufe of B. in Tail, Remainder over; B. died without If"
iith3.r.B.-j;as fue, living M. This, by the Opinion of the Judges of C. B^ to whom it
Heir at Law ^as refcrr'd, is a Tenancy in Common between M. and B. So that M.
"^ f^f^!"^' has no Title to B's Moiety, either by Survivorfhip or Implication ; nor
on it was ml '^oes that Moiety either delcend or refult to the Heirj but as to that
fifted, that Moiety during M's Life, it was an Interefi imdifpofed of, and in Nature of
thence arofe a 7'enancy Pur auter Vie, and confequently belong'd to the Adminiitrator
'•^ P'^'"""'^ of B. and decreed accordingly. 2 Vern. 430. Hill. 1701. Philips v.
plTcationtlwt Philips.

M. fhould

liave it for her Life. And the Reporter notes the different Opinions on this Cafe, viz. The Maftep
of the Rolls held, that M. and H. were Jointenants, and t^at all furvived to M. Afterwards on Ap-
peal, Lord Somers held, that M. and B. were Tenants in Common, and that, B's Eihue determining
Yty her Death, the Remainderman or Reverfioner had a Right to that Moiety. Afterwards Lord
Wright was of Opinion, that an Eftate by Implication arofe to M. in B's Moiety after B's Death.
But upon referring it to the Court ot C. B. they conceiv'd that B. and M. were Tenants in Common,
and that M. had an Eftate Pur auter Vie, which, upon the Statute of Frauds (that takes away Occu-;-
pancy) ought to go to B's Adminiftratrix, viz. M. the Mother, and that B. had not an Ell.ueTail iff
the 'Truft ; For that Mergers are odious in Equity, and never allowed unlefs for fpccial Reafons.

S C.I I Mod. i_j. A. devifed his Lands to his Nieces E. and J. equally to Is divided
108, 1 09 And igfrjjggjj, ff^^jfi during their Lives, and after the deceafe of them two, then to
deliver'd the ^^^ Heirs of J. and dies. J. dies, living E. Adjudged that E. and J.
Opinion of were Jointenants during Life, and the Fee to the Heirs of J. but E. to
the Court, enjoy all tor her Life. And Holt Ch. J. held, that by making it a Te-
that this was ^y^^^^y [^ Common, the Devife might be in Danger; For if £. had died
cy, bcc'aiijc ^^'^t what would bccomc of that Moiety.^ For a contingent Remainder^
the Remainder which Cannot take Efle6t when the particular Eitate determines, is void^
'puadtheMoi- And afterwards it was adjudged a Joincenancv. Holt's Rep. 3-0. Pafch.
ety is contm- 5 j^^^ Tuckermau v. Jeffries.

ire>:t -'

n C. cited Tr. u Geo. Arg. 9 Mod 15S, in Cif; of B;(rker v. Evles

16. A



Jointeriants. 4-87



16. A. Debt oi 2.0,000 1, "-joas bequeathed to five. Share and ^bare ^//Af, This Decree
'equally to be di'vtded between them, and if any of them die, then his Share was rcrcrfcd
to go to the Siirvi-vors or Survivor ot them. Ld C. Cowper held this to be ^^jJ^^'J'PP'f ^ '^
plainly a Tenancy in Common, from the VV^ords (Share and Share alike); bid. iiulN.jtc
And by the fubfequent Words ( it" any of them die, his Share Ihull go to added to thU




Part would have been a laps'd Legacy, and have gone to the Executor Caib of
as undifpofed of by the Will. And that to underltand it thus, viz.. £>tringcr
If any of them fliould die before the Receipt of the Money, it would j"'^"^ i^^/''
be intirely Dehors, there being nothing in the Will to jultily fuch Con- ^',.^^.j ;,t"t;,g
ilru£tion. Wms's Rep. 96. 'Xrin. 1707. Ld Bindon v. Ld Suffolk. KollsMich.

I "50. Lord

Cowper's Opinion be not adhcr'd to? Wms's Rep. 97. The Word (Sai-vivoi-) muft (l.^tiify Ibme-

thing, and tlicrefore it fliall be cofiftrued. If any of them die before the Adoiiey rscehed. Mj>. Tjb. cites
S. C 16 Jan. 1707. and ftates the ])ebt bequeath'd to have been a defperate Debt.

17. A. devifed feveral Leafehold Houfes to B. for Life, and afttr B's G Equ. R.
Death to M. arid her 3 Children eqiiady arnongfi them. Decieed to be a '•^'^- ^- ^•
Tenancy in Common, tho' no mention of any Divifion to be made. Ch.

Prec. 491. Pafch. 1718. Warner v. Hone.

18. A. deviled Land to be fold lor payment of Debts, and the Surplus Thi? Decree
to be \-elced in Land and fettled on B. and C. and the Survivor of them, was affirm d
and their Heirs, equally to be devided bctivecn thetn Share and Share alike. °^ff^^^l^ „"■
B. died in A's LUe-time •, then A. died leaving J. S. his Heir at Law. Lords. Ibid.
The Queltion was, if this was a lapfed Devife, and lliould go cothcHeit 2S; 9

at Law, or to C. the Surviving Devifee. This Cafe, coming before Ld. ^^od. 15-.
Commilfioners Raymond, and Gilbert, was put ofl' tor Diiliculty, and ^'^°- ^"
afterwards Ld. C. 'King held, that by the firll Part of theWill, they
were plainly Jointenants lor Life, and the After VV^ords importing a
Tenancy in Common, they are Ttnants in Common of the Inheritance,
and ^o every Word of the Will takes Elfecl, and B. dying in the Life
x)f A. thereby C. became intitled to the whole for Life, and the Inheri-
tance being devifed in Common, the one Moiety having lapfed by the
Death of B. in A's Life, theretbre C. Hiall take all for Lite, and a Moiety
of the Inheritance Ihall defcend ro A's Heir at Law, expectant on C's
Death, and the other Moiety o{ the Fee to C*s Heir. 2. Wn.s's Rep.
283. Pafch. 1725. Barker v. Giles.

19. Devife to 'Trnjhes and their Heirs in Trufl for B. for Life, Remain-
der to the Children of B. by her then Husband, in Trutl, that tney Ihall
have the Profits thereof when they come of Age. The Children will
take a Fee as Tenants in Common. Mich. 11 Ceo. 1. 9 Mod. 104. Bacc-
man \. Raich,



r.inc



(L) Tenants in Common. In what Cafes they fliall be ^^f^
Jointenants, or Tenants in Common. [Bj Deed, ^c:']

I. Tif a ^an leafes for Life, tt)C Remainder to the Right Heirs of J J^^^^^lj^g'
I S. and I.D. tDljO are alive, CljCir (Oeitg fijall taf'e tin EC= e. 3! Is,

inainccr in Common miD not jouttlP , X^ccniifc tlicu cannot tal^c tt
m one Cnnc. lot liotlj bp iutcncmctit unli not etc at one oiuick, ijatiino; a fclicral Cnpaciti' from tije OBoOp Natural, cann6t

tlu/fli'll p'ot ^-''^^^ i"'""^^.^' i^'ltO tijeni, nuB tlje Sohendls to the Dean and Chapter 50C5
farvive, but UOt illtCt tIjC CilfCj iHlt is void, being contrary to the Premiiies, UlhlClj

thcsuivivor, isj a pcrfcrt * lien of itfflf, nun tljcrcfore after tljC DratI) of a. 15.
and thcE>.e ^-m^ Q^^ jQ, j-jj;; 5;)fj,j, f„^j, ^{japtcr cannot lirinrt Action of Debt up=
celio."ot- [he '•■^" f^J^^ ©WuTOtion rcilclp, tut mull )oin twtlj tlje (gtccntor of ti)c
other iiKiU S^iirijtlior of t!)c niso 3.15. anu C. D. .fox tijjsi (5^ louit littuiceu

join in an ti)Cm. ^tcih 9 €HX* 03.1^. IJCtlUCCU tt)C D^^iM and ClMptcr of St. Peters

Aftion ot ,f ]iyk.^ and G. Power DcfenDant, aojuOgcD upon a Demurrer, tijat

nota"sciH- ^"^1) gftioH, lu'ouiTljt HP tljG Dcau anc Cljapter otilv, 10 not uieil

fct in an l^roupt ; but luGijment agamfl Ijim^ Jbeino; of tljc Defendant's

Action of counfeH. ijntratur. €:r> 3 Car.iAot. 350*

Debt Br.

Jointcnants.pl. 5^ * Orig. (Lier).



Jf")'- 550. 5, Jf a CJ3iijt enfeoffs A. to the tlfe of him and B. ttjCP fljall UOt IJE

200 isia,-;^' 'SCcnantsi in Common but Iolntcnant0 i if or both fljail come in by
^*i5 Re^'p. the Statute, -^r. 7 3'fl^ Curia iBarDorum Some's Cafe in OEuria l©ar=
^5. s. c- riorum Dubitatur. Xut * s^iclj. 7 lac. tijis luas rcfolDetJ bp tlje 3
The- It V, as :?nr!EX0, ano tlje i:ittorne)? of tljc !©art3si accortunglp. $^. 5 :|a. 15.
A^^S^ i^* niJiuQircO per Curiam^ bctujcen loc ann Lee.

only enfeof-
fed 'to the onl;/ U'e of him, and B. and their Heirs, that A. is in by the Common La'j} in the F»r, and
then the Limitation of the Vie to him and B. and their Heirs cannot
tares are diftinft and divided, and confequencly the one drowns the other, 'i-.-^f/'^^^
Co. Litt. 182. a. b. nfu-Ahe uf-

Jof ({rant s the
Reverjion to them tziv nnd the Heirs of their two Bodies. The yointure is fiiered, arid they arc Tenants in
common of the Poffeflion. Co. Litt. 182. b.

14. If two Jointenants in Fee be, and they both Join in a Leaf to an 3'o'//i if they
u^bbot And a Secular Adan for Term ot their Lives, here the Reverlion, l°'J^^'" '''.
that is dependant upon feveral Freeholds, is fevered. Co. Litt. 191. b. Senihr''j!a"

to have and
to hold the one Moiety to one for Life, and the dher Moiety to the other for Life. Co. Litt. 1 9 1 . b. 192. a.

15. If Lands are given to tzvo, to hold the one Moiety to the one and his Browr.1. 52.
Heirs, and the other Moiety to the other and his Heirs ; They are Ten- ^- - ^''\"?-
ants in Common. Co. Litt. S. 298. — Becaufe they have feveral Freeholds, ^^ ^g,;])" ^^
and an Occupation Pro Indivifo. Co. Litt. 190. b. Deed, yet '

they are dif-
tivB Conieyaiice, and Livery to the one, Secundum formam Chart* will not avail the other ; per holt
Ch. J. 12 Mod. 501. Mich. 11 W. 3. m Cafe of Fiflier v. Wigg.

Nota. 'the Hidteridum feiers the Frewijfes, that prima facie feemed to be joint ; For an Ex^refs Eftate
controls an imply'd Ellate. Co. Litt. 19. a. b.

Etjiuttly to he divided,or C(\nii.\\y divided makes noDiftribution, and isRcpugnant to Tenancy inCommon.
But one Moiety to the one and the other Moiety to the other, is of a Jfciety ur.diz-dfd, and therefore a
Tenancy in Common. But if tiicnty ^"Icres be given *Ha!>e>id' 10 Acres to one and \o.-Jcres to the ether, the
Habend' is void, becaufe the Diftribution would be Repugnant to the Nature of Tenancy in Common ;
which mull only be of a Moiety, &c. undivided; and it thefe Words would li;.; lify anv thi:>g, the

Parties could not take 'till Divilion. 12 Mod. 302. In Cafe of Fiflier v. Wiggs * The Habendum

is void, and tliey are Jointenants, per Holt Ch. J. i Salk. 591. Hill. 10 W. 5. in Cale of Ward v.
Everard.

If a Af.xnor is granted to two in the Premifles Habend' tl^e cm Moiety to cne, and the other Moiety to the
other, thofe Words cannot make a Tenancy in Common, it being the Nature of that Eftate for the
Tenants to be leifed Pro Indivifo. per Holt Ch. J. Wms's. Rep. 19 Hill. i;oo. iu Cafe of Fiflier
V. Wigg.

16. If a Man feifed of Land enfeoffs another of the Moiety, zvithaft S»oi a third
fxying any thing of Affignment or Limitation thereof in feveralty at the "'' {""''^
I'ime of the Feoftinent, 1 he Feoflee and Feollbr Ihall hold their Parts An'd'if there
in Common. Co. Litt. S. 299. i^ian Jdvow-

fun .



Online LibraryCharles VinerA general abridgment of law and equity : alphabetically digested under proper titles, with notes and references to the whole (Volume 14) → online text (page 79 of 103)