CHAP. XXXI. (namely, in Earle v. Wilson,) to be also void; but the point admits of considerable doubt. 6th. That it is very questionable whether, at this day, a gift to the future illegitimate children of a particular woman, even irrespective of the father, can be sustained, against the objection founded on the immoral tendency of such a disposition. and tenancy in I. UNDER a devise or bequest to a plurality of persons Joint-tenancy concurrently, it becomes necessary to consider whether common. they take joint or several interests; and that question derives its importance mainly from the fact, that survivorship is incidental to a joint-tenancy, but not to a tenancy in common (a). tenants, when. A devise to two or more persons simply, it has been Devisees jointlong settled, makes the devisees joint-tenants; but it should be observed, that where the objects of the devise are husband and wife, who are in law regarded as one person, they take not as joint-tenants, but by entireties; the consequence of which is, that neither can, by his or her own separate conveyance, affect the estate of the other (b). Husband and entireties, wife tenants by when; share of one only. Another consequence of this unity of person in husband and take the and wife is, that where a gift is made to them concurrently with other persons, they are considered as, and (a) Any joint-tenant may, however, by his own conveyance, sever the tenancy as to his own share, and, consequently, destroy the jus accrescendi between himself and his (b) Doe d, Freestone v. Parratt, CHAP. XXXII. take the share of, one only. Thus, if property be given to A., and B. his wife, and C. (a third person,) A. and B. will take one moiety, and C. the other, not A. and B. two-thirds, and C. the remaining third (c). Devisees in tail tenants in But an exception to the rule, that a devise to two or common, when; more creates a joint-tenancy, exists in certain cases where the estate conferred by the devise is an estate tail; for where lands are devised to several persons, and the heirs of their bodies, who are not husband and wife de facto, or capable of becoming such de jure, either from their being of the same sex, or standing related within the prohibited degrees of consanguinity, inasmuch as the devisees cannot, either in fact or in contemplation of law (as the case may be) have common heirs of their bodies, they are though made" by necessity of reason," as Littleton says, "tenants in common in respect of the estate tail" (d). As this reason, however, applies only to the inheritance in tail, and not to the immediate freehold, the devisees are joint tenants for life, with several inheritances in tail; so that on the death of one of them, whether he leave issue or not, the surviving devisee becomes entitled for life to his share under the joint-tenancy (e), and the inheritance in tail descends to the issue (if any) subject to such estate for life (g). joint-tenants of the freehold. (c) See Lewin v. Cox, Moore, 558, pl. 759; S. P. Anon. Skinn. 182; Co. Litt. 187. a. Would it make any difference as regards this doctrine, that the wife was described without reference to her conjugal character? It is conceived not. (d) Co. Litt. 184. a. See also Elizabeth Huntley's case, Dyer, 326, a.; Cook v. Cook, 2 Vern. 545 ; Perry v. White, Cowp. 777. (e) Wilkinson v. Spearman, in Dom. Proc. cit. Cook v. Cook, 2 Vern. 545, and Cray v. Willis, 2 P. (g) Sometimes a result of this kind is produced by the terms of the will, of which an example is afforded by the late case of Doe d. Littlewood v. Green, 1 Mee. & W.229, where a testator devised his real estates to his nieces, E. and J., equally between them, to take as jointtenants, and their several and respective heirs and assigns for ever; and it was held, that they took es CHAP. XXXII. in chattels; legacies and re A bequest of chattels, whether real or personal, to a plurality of persons, unaccompanied by any explanatory Joint-tenancy words, confers a joint, not a several interest (h), and that whether the gift be by way of trust or not (i); and, not-in pecuniary withstanding the disposition of the Courts of late years sidues of personalty. to favour tenancies in common, the same rule is now established as to money-legacies, to money-legacies, and residuary bequests (k), in opposition to some early authorities (7), and the doubts thrown out by Lord Thurlow, in Perkins v. Baynton (m). It is observable, however, that, in another case which came before his Lordship (n), he relied wholly upon the words of severance, as constituting the legatees of a money legacy tenants in common; from which Lord Altanley inferred, that he had never made the observations imputed to him (o); but Lord Eldon has referred to them in a manner which leaves no doubt of the fact, although his Lordship has now placed the general question beyond controversy, by stating his own opinion generally to be, "that a simple bequest of a legacy or a residue of personal property to A. and B. without more, is a joint-tenancy" (p). The rule, that a gift to two or more simply creates a joint-tenancy, applies indiscriminately to gifts to indi (1) Cox v. Quantoch, 1 Ch. Cas. 238; Sanders v. Ballard, 3 Ch. Rep. 214; 2 P. W. 489. (m) 1 B. C. C. 118. The case of Warner v. Hone, 1 Eq. Ca. Ab. pl. 10, cited by his Lordship, does not apply, as it was the bequest of a leasehold house, and there were words of severance. (n) Jolliffe v. East, 3 B. C. C. 25. (0) See Morley v. Bird, 3 Ves. 630. (p) Crooke v. De Vandes, 9 Ves. 204. Rule where obcurrent gift jects of a con may become entitled at different times. CHAP. XXXII. Viduals and gifts to classes, including, it should seem, dispositions in favour of children, notwithstanding Lord Hardwicke's objection, in Rigden v. Vallier (q), to apply the construction to provisions by a father for his children, on account of its subjecting them to be defeated by survivorship. However, a gift by will, under which all the members of the class are not necessarily entitled at the same instant of time, but which vests the property in such as are living at the death of the testator, with a liability to be divested pro tanto in favour of after-born objects, was recently decided to create a tenancy in common. A. bequeathed stock in the public funds to B. for life, and, after her decease, the capital to the children when without words they arrived at the age of twenty-one years: it was con Tenancy in common under gift to chil dren as a class of severance. tended, that the legatees were tenants in common, according to the position in Coke on Litt. 188. a., that "if lands be devised for life, the remainder to the right heirs of J. S. and J. N., J. S. hath issue, and dieth, and, after J. N. hath issue, and dieth, the issues are not jointtenants, because the one moiety vested at one time, and the other moiety vested at another time." Sir L. Shadwell, V. C., said, "It is contrary to the rule of law, that persons, who are to take at different times, can take as joint-tenants; the property must vest at once. From the necessity of this case, the children who attained twentyone, must take as tenants in common" (r). It is observable, that, in the case of Stratton v. Best(s), (which was not cited to the V. C.,) a contrary rule was applied to the limitations of a deed. By a marriage settlement, lands were limited, in trust for the intended husband for ninety-nine years, if he should so long live, with remainder, subject to a power of appointment, in trust (q) 2 Ves. sen. 258. (r) Woodgate v. Unwin, 4 Sim. 129. (8) 2 B. C. C. 233. |