CH. 1, s. 3. real and personal estate equally between her brother, her Pr. II. T. 7, sister, her nephew W. and E. his wife, and E. was niece of the testatrix, so that husband and wife were equally of kin to the testatrix, the husband and wife each took a share, and not merely one share between them (n). 630. by the No alienation by either of the married couple will pre- Alienation judice the other, when they are tenants by entireties for husband. life, in tail, or in fee; but if the husband aliens and sur vives, the alienation will be heirs (o). 631. (n) Warrington v. Warrington, 2 Hare, 54. (0) 1 Pres. Shep. T. 131; Watk. binding upon him and his Conv. 3rd ed. by Prest. 249; 2 Jarm. CHAPTER II. OF AN ESTATE IN COPARCENARY. AN estate in coparcenary, by the common law, is an estate in fee or in tail, held by two or more females, to whom it Las descended, or by the representatives of such females in an uninterrupted course of descent from them, whether such representatives are male or female (1) 632. Parceners always claim by descent; and hence it follows, that if two sisters purchase land, to hold to them and their heirs, they are not parceners, but joint tenants; and that no estates can be held in coparcenary but estates of inheritance b. 633. Parceners have an unity, but not an entirety of interest. As between themselves, they are properly entitled each to the whole of a distinct moiety (e), and therefore there is no jus accrescendi or right of survivorship between them; for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the land continues in a course of descent, and united in possession, so long are the tenants thereof called coparceners, or for brevity parceners, and make but one heir, whether they be male or female, or whether lineally or collaterally related to the person from whom the estate first descended in coparcenary (d). 634. But, besides parceners by the common law, there are also parceners by particular custom, where lands descend, (a) See 2 Bl. Com. 187, 188; 2 b) 2 Bl. Com. 188; Litt. s. 254; 164 a; 2 Cruise T. 19, § 6; but see 6 Jarm. & Byth. by Sweet, 589. (d) 2 Bl. Com. 187-8; 2 Cruise T. 19, § 1, 6; Litt. s. 241-2; CoLitt. 163 b, 164 b; Watk. Conv. 3rd ed. by Prest. 58, 77. as in gavelkind, to all the males in equal degree, as sons, PART II. brothers, uncles, &c. (e). 635. dower. Curtesy and dower are incident to estates held in copar- Curtesy and cenary, as no survivorship takes place. But in such a case dower can only be assigned in common (f). 636. by one co another. Coparceners may, and always might, convey to each Conveyance other, either by release, in respect of their privity of estate, parcener to or by feoffment, in respect of their distinctness of interest as between themselves (g). And they may now convey to each other by a statutory grant (h). 637. tion; tion; An estate in coparcenary may be destroyed: 1. By par- Destruction. tition, which disunites the possession, converting the estate By parti into two or more estates in severalty. 2. By alienation, by alienawhich disunites the title and may disunite the interest, changing the estate into a tenancy in common. 3. By the by union. whole at last descending to and vesting in one single person, which brings it to an estate in severalty (i). 638. private There are four sorts of partitions by private agreement. Partition by 1. Where coparceners mutually agree as to their respective agreement, shares (k). If coparceners of full age and unmarried, and of sane mind, make such a partition of lands in fee simple, it is effectual for ever, though the values be unequal. But if it is of lands entailed, or if any of the parceners are of unsound mind, it will bind the parties themselves, but it will not bind their issues, unless it is equal. If any are covert, it will bind the husbands, but not the wives or their heirs. If any are within age, it will not bind the infants (). 2. Where coparceners agree to choose some (e) 2 Bl. Com. 187; 2 Cruise T. 19, § 2; Litt. s. 241. (f) 2 Cruise T. 19, § 10. (g) 6 Jarm. & Byth. by Sweet, 589; 4 Cruise T. 32, c. 6, § 22, 24; 2 Pres. Shep. T. 326-7; Co. Litt. 169 a; Watk. Conv. 3rd ed. by Prest. 77, 162. (h) See infra, Part III. T. 12, Ch. 3, s. 4. (i) 2 Bl. Com. 189, 191; 2 Cruise T. 19, § 11, 33. (k) 2 Cruise T. 19, § 12; Litt. s. 243. (1) 2 Cruise T. 19, § 13; Co. Litt. 166 a, 173 b; Litt. s. 255-8. PART II. T. 7, CH. 2. Partition by the Court of Chancery County Necessity for a deed friend to divide the lands; in which case the eldest daughter shall choose first, and the other daughters according to their seniority (m). 3. Where the eldest makes the division of the lands; in which case she shall choose last; for, to avoid partiality, cujus est divisio, alterius est electio (n). 4. Where the lands are divided, and then the sisters draw lots for their shares (o). 639. Coparceners may also obtain partition of the estate by an application to the Court of Chancery or the County Court (p). 640. In consequence of the Statute of Frauds, 29 Car. 2, c. 3, of partition. no legal partition could be made between coparceners without deed. And by the stat. 7 & 8 Vict. c. 76, s. 3, and 8 & 9 Vict. c. 106, s. 3, a deed is necessary to the partition of freehold or leasehold hereditaments. But an agreement in writing to make a partition will have the same effect in equity as an actual partition at law (q). 641. Rent for equality of partition. Special modes of partition. If two houses of unequal value descend to two coparceners, each upon a partition shall have a house; the one having the house of the highest value paying to the other and her heirs yearly a certain sum sufficient to make the partition equal in value, which sum is called a rent for owelty or equality of partition (r). 642. Partition may be made so that each one may annually have the property for a particular time of the year; or so that each may have it for a year or a certain number of years alternately to them and their heirs; or so that each may have the possession of different parts of the property alternately to them and their heirs (s). 643. (m) 2 Cruise T. 19, § 14; Litt. s. 244. (n) 2 Cruise T. 19, § 16; Litt. s. 245; Co. Litt. 166 b. (0) 2 Cruise T. 19, § 17; Litt. s. 246. (p) Co. Litt. 169 a, n. (1), VII. ; Story's Eq. Jur. § 646, et seq.; 31 & 32 Vict. c. 40, s. 12. (q) 2 Cruise T. 19, § 19. (r) 2 Cruise T. 19, § 31, 32. (s) 2 Cruise T. 19, § 18; Co. Litt. 165 a, 167 a, b. In the case of estovers, or a common without limit as to number, or a piscary, or right of fishing without limit, the eldest shall have it, and the rest shall have an allowance out of the rest of the inheritance; or, each shall enjoy it for a certain time; or, in the case of a piscary, one shall have one fish or draught, and the other the second fish or draught (t). 644. PART II. T. 7, CH. 2. If there are only two coparceners, and one of them Alienation. aliens, the estate in coparcenary is determined. But if there are more than two, and one alien, the others may still hold in coparcenary, as between or among themselves (u). 645. (t) Co. Litt. 165 a. (u) See Watk. Conv. 3rd ed. by Prest. 97. |