*

further restraint upon the suspension of the enjoyment of the property than upon the vesting, therefore it was competent to a testator to create a trust for the accumulation of the income of the property for the full period of any number of lives in being and twenty-one years afterwards. Such a trust might be scarcely anticipated ever to be created, inasmuch as it would in all probability involve a great hardship to those individuals who naturally expect [* 338] to share a testator's or settlor's bounty. Political reasons have, moreover, been suggested against permitting such accumulations, for a great concentration of wealth in particular persons might prove an inconvenience to the state. Upon these grounds, when an attempt of this kind had been made, and a certain testator (r) made a will directing the accumulation of the income of his property during the lives of all his descendants who should be living at his death (who proved to be numerous), for the purpose of enriching some remote descendant, who was to become entitled at the extreme period allowed by the then law, the attention of the legislature being called to the fact, an act was passed (s) prohibiting for the future (t) any direction, either by a deed or will, for accumulation of annual income of either real or personal property for a longer period than the life of the settlor, or the term of twentyone years from the death of the settlor. Exceptions are, however, made in favour of a direction for accumulation when they have for their object the payment of debts of the settlor, or the provision of portions for his children, and also in favour of directions touching the produce of timber or wood upon any lands or tenements.

Having set forth the nature of remainders at almost greater length than the comparative simplicity which the law has gradually assumed seems to render requisite, it remains for us to notice another species of estate, which is created by the act and operation of the law itself, and this is called a reversion.

Estates in reversion.

[* 339]

An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted by him (u). Sir Edward Coke (v) describes a reversion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law: and so also the reversion, after an estate for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But they are equally transferable, when actually vested, being both estates in præsenti, though taking effect in futuro.

The doctrine of reversions is plainly derived from the feudal constitution.

(r) Mr. Peter Thellusson, who died in the year 1797; see Thellusson v. Woodford, 4 Ves. 227; and Hargrave's treatise on the Thellusson act.

(8) 39 & 40 Geo. 3, c. 98, usually called the Thellusson act, an act as remarkable for the

inaccuracy and obscurity of its language as
for the circumstances which gave rise to it.
(t) 1. e. after the 28th July, 1800.
(u) Co. Litt. 22.

(v) 1 Inst. 142.

Derived from

tion.

For, when a feud was granted to a man for life, or to him and his issue male, rendering either rent or other services; then on his death, feudal constitu- or the failure of issue male, the feud was determined, and resulted back to the lord or proprietor, to be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite inseparable, and may be, though it never is, demanded as a badge of tenure, or acknowledgment of superiority; being frequently the only evidence that the lands are holden at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion (x). The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent, by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; [* 340] though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converso: for the maxim of law is, "accessorium non ducit, sed sequitur, suum principale" (y).

Distinction be

ers and rever

sions.

These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, tween remaind- however inaccurately the parties themselves may describe them. For if one, seised by descent of an estate in fee, makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion (z), to which rent and fealty shall be incident: and which shall only descend to the heirs of the last purchaser, and not to his own heirs, as a remainder limited to him by a third person would have done (a): for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A., reserving rent, with reversion to B. and his heirs, B. has a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A.'s estate (b).

Again, a tenant for years may demise the lands comprised in his term for a shorter term, and then he will have a reversion for years, in which the derivative term will merge if they come together in the same person. Where a tenant for years wishes substantially to part with the term, but at the same time to remain tenant to his own landlord, and to stand in the relation of reversioner to the intended sub-tenant; or where the latter does not choose to take upon himself the responsibility of assignee of the original lease, it is [*341] common to demise the premises comprised in the term, to hold to *the sub-lessee for all the residue of the term wanting the last day or last two days thereof, the effect of which qualification is to preserve a reversion in the mesne lessor, and to prevent the sub-lessee from becoming tenant to the original lessor.

But in these, as in most other assurances, the law regards rather the substance than the form; and a deed purporting to be a demise or lease for a term as long as the subsisting residue of the original term out of which the demise

(x) Co. Litt. 143.

(y) Ib. 151, 152. But see ante, p. 52. (2) Cro. Eliz. 321.

(a) 3 Lev. 407; post, p. 373.

(b) 1 And. 23.

is intended to operate, will have the effect of an assignment, creating no tenancy between the parties, and leaving no reversion in the grantor (c).

appearance of

In order to assist such persons as have an estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their Remainderman's deaths, it is enacted by the statute 6 Ann. c. 18, that all persons right to compel on whose lives any lands or tenements are holden, shall (upon tenant for life. application to the court of chancery and order made thereupon), once in every year, if required, be produced to the court, or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living.

The order is made upon an ex parte application supported by evidence showing that the application of the act is necessary (d). The person upon whom the order is made is any person who is suspected of such concealment, such as the guardian of an infant, husband of a married woman, or any other person who, it is presumed, is interested in concealing the death. If the cestui que vie is beyond the seas, commissioners will, at the expense of the reversioner, be sent over to view him (e).

[* 342]

ESTATES IN SEVERALTY, JOINT TENANCY, COPARCENARY, AND TENANCY IN COMMON.

WE come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and ers of an estate. whether they be in actual possession or expectancy, may be held in four different ways: in severalty, in joint-tenancy, in coparcenary, and in

Number of own

common.

(c) Thorn v. Woolcombe, 3 B. & Ad. 586. Sub-demises, such as are here mentioned, are of daily occurrence in London, where the greater part of the houses have been built by lessees for long terms at a low ground rent. Beardman v. Wilson, L. R. 4 C. P. 57. (d) Ex parte Grant, 6 Ves. 512; Ex parte Whalley, 4 Russ. 561; Re Isaac, 4 M. & Cr. 11. (e) At common law, a person who has not been heard of for seven years was presumed to have died. Hopewell v. De Pinna, 2 Camp. 113; Rust v. Baker, 8 Sim. 443; and that period was adopted in the statutes 1 Jac. 1, c. 11; 9 Geo. 4, c. 31 against bigamy; and by the stat. 19 Car. 2, c. 6, it is enacted, that, in actions by grantors of copyholds for lives, and by other reversioners expectant on leases for lives, the death of any person on whose lives such grant or lease was made, shall be presumed, if such person shall remain beyond seas, or elsewhere absent himself in this realm, by the space of seven years together;

unless he is proved to be living. It is now the rule in most cases to presume the death of a person who has not been heard of during seven years. See Doe v. Jesson, 6 East, 81; Doe v. Deakin, 4 B. & Al. 433. But there is no presumption that the death took place at the beginning, in the middle, or at the end of the seven years. A presumption as to the exact time of death can only arise from special circumstances. Nepean v. Doe, 2 Mee. & W. 910; Sillick v. Booth, You. & C. N. C. 117. In re Benham's Trust, L. R. 4 Eq. 412.

Where a young sailor was last seen in the summer of 1840 going to Portsmouth to join his ship, it was presumed that he survived his grandfather, who died in March, 1841. Re Tindall, 30 Beav. 151. So a legatee was held to have survived a testator, who died three years after the former was last heard of. Dunn v. Snowden, 2 Dr. & S. 201. See also Lakin v. Lakin, 34 Beav. 443.

He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate In severalty. therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as distinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. We shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants.

In joint-tenancy.

An estate in joint-tenancy is where lands or * tenements are granted [*344] to two or more persons, to hold fee simple, fee tail, for life, for years, or at will. In consequence of such grants an estate is called an estate in joint-tenancy (a), and sometimes an estate in jointure, which word, as well as the other, signifies an union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint estate, which, by virtue of the statute 27 Hen. 8, c. 10, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower (b).

How created.

In unfolding this title, and the two remaining ones in the present chapter, we will first inquire how these estates may be created; next as to their properties and respective incidents; and lastly, how they may be severed or destroyed. The creation of an estate in joint-tenancy, depends on the wording of the deed or devise, by which the tenants claim title: for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if property, the nature of which is not incompatible with joint ownership (c), be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A. and B. and their heirs, this makes them immediately jointtenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects.

[* 345]

The properties of a joint estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.

Properties.

190 a. So, if lands be given to two bishops and their successors, they take in common,

because they are seised in several rights, for the one bishop is seised in the right of his bishopric of the one moiety, and the other in right of his bishopric of the other moiety, and so by several titles, and in sev eral capacities; whereas joint-tenants ought to have it in one and the same right and capacity, and by one and the same joint title." Id.

Unity of interest.

[* 346 ]

First, they must have one and the same interest. One joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for years; one cannot be tenant in fee, and the other in tail (d). But if land be limited to A. and B. for their lives, this makes them joint-tenants of the freehold; if to A. and B. and their heirs, it makes them jointtenants of the inheritance (e). If land be granted to A. and B. for their lives, and to the heirs of A.; here A. and B. are joint-tenants of the freehold during their respective lives, and A. has the remainder of the fee in severalty (f): or if land be given to A. and B. and the heirs of the body of A.; here they have a joint estate, A. having in addition a several remainder in tail (g). If the gift be to A. and B. and the heirs of their bodies, then since (if A. and B. be men) they cannot have both the same heirs of their bodies, the inheritances in tail are severed, but they have a joint estate for their lives (h). If A. and B. were one a man and the other a woman, then the gift would be in special tail, since they may marry and have heirs according to the gift; they take each a moiety of the land during their joint lifetime, and the survivor the whole in special tail. Secondly, joint-tenUnity of title. ants must also have an unity of title: their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseisin (i). Joint-tenancy cannot arise by descent or act of law; but merely by purchase, or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good and the other bad, which would absolutely destroy the jointure. Thirdly, Unity of time. there must also be an unity of time; their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A. and B.; or a remainder in fee to A. and B. after a particular estate; in either case, A. and B. are joint-tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A. and B.; and during the continuance of the particular estate A. dies, which vests the remainder of one moiety in his heir: and then B. dies, whereby the other moiety becomes vested in the heir of B.: now A.'s heir and B.'s heir are not joint-tenants of this remainder, but *tenants in common; for one moiety vested at one time, and the [* 347] other moiety vested at another (k). Under the Statute of Uses, however, a joint-tenancy may be created though the estates vest at different times.

(d) Co. Litt. 188.

(e) Litt. s. 277. Lord Coke says, that if a rent-charge of 107. be granted to A. and B. to have and to hold to them two, viz. to A. till he be married, and to B. till he be advanced to a benefice, they are joint-tenants in the meantime, notwithstanding the limitations; and if A. die before marriage, the rent shall survive to B., but if A. had married, the rent should have ceased for a moiety, et sic e converso, on the other side. Co. Litt. 180 b; 2 Cruise, Digest, 498.

(f) The passage in Littleton is, "If lands be given to two, and to the heirs of one of them, this is a good jointure, and the one hath a freehold and the other a fee-simple."

VOL. I. - 81

And in his commentary Coke says, that he who has the fee cannot grant it away as a remainder, distinct from his life estate; there. fore the effect seems to be as stated in the text, except that A's interest is looked upon as all one estate. See Wiscot's Case, 2 Rep. 60. (g) Litt. s. 285.

(h) In Wilkinson v. Spearman, 2 P. W. 530, in which the testator devised land to his two daughters, and the heirs of their two bodies, it was thought to be a hardship that the survivor should turn out the issue of her sister

during the period of her survivorship, nevertheless it was held to be law.

(i) Ib. s. 278.
(k) Co. Litt. 188.