ties of the legal estate may exist between husband and wife under such circumstances that in equity they will be regarded as tenants in common. Thus, if a man and wife hold the equitable title to a tract of land as tenants in common, and a patent based upon such equitable title issue to them, they will thereafter hold the legal title as tenants by entireties, with the right of survivorship; yet her equitable estate will not be thereby defeated, but will descend to her heirs at her death.1

268. In Personal Property.-Mr. Bishop, in his recent work on the Law of Married Women, says "if real estate is conveyed by deed to a husband and wife, this creates in them a peculiar kind of tenancy, known as tenancy by the entirety; the consequence of which is, that, during the coverture, neither can alien the land to the prejudice of the rights of the other, and on the dissolution of the coverture by the death of one of them, the survivor takes the whole. Nothing of this sort is known in respect of personal property. Since the wife cannot own personal property in her possession in her own right, but whatever title she has to such property vests in the husband, if a chattel is given or sold to husband and wife jointly, the title passes wholly to him." The declaration that nothing in the nature of tenancy by entirety is known in respect to personal property is supported by a single citation. That it is so feebly supported is not attributable to omission to take advantage of whatever may have been available on that side of the question, but to the fact that there are certainly few cases, and in all probability no case, in accord with the one on which Mr. Bishop's assertion is based. On the other hand, the reports, English and American, new and old, abound in cases recognizing tenancy by entirety in all kinds of personal estate, and enforcing the right of the surviving husband or wife to the entire property." Thus, a legacy to a husband and wife of £100 per annum vests

Norman v. Cunningham, 5 Gratt. 70.

2 Bishop on the Law of Married Women, sec. 211.

Polk v. Allen, 19 Mo. 467. But in a later case in the same State; (Shields v. Stillman, 48 Mo. 86,) a husband and wife were regarded as tenants by entirety of a promissory note.

Bricker v. Whately, 1 Vern. 233; Cowper v. Scott, 3 P. Wms. 121; Atty. Genl. v. Bacchus, 9 Price, 30.

in them as tenants by the entirety, and the survivor is entitled to the whole.' The same is true of a joint judgment in favor of husband and wife; and of all choses in action taken by them in their joint names. And whenever a husband procures stocks in the name of himself and wife, or takes notes, mortgages, or other securities in his and her names, a tenancy by entirety is created in such stocks, notes, mortgages, or other securities. The husband is presumed to have meant something by the use of his wife's name, and that something is also presumed to have been intended for her advantage. Had he desired to be sole owner, he would have used no name other than his own. But having had her name inserted with his own, she in the event of his death, becomes sole owner of all which the two at the moment of his decease possessed as tenants by the entirety. So when a husband purchased a Walk in a Chase, and took the patent to himself and wife and B, and her right to the share of the patent was afterwards questioned, the Court said, "It shall be presumed to be intended as an advancement and provision for the wife;" and decreed that she should have the benefit of the patent during her life. The crops produced on land held by entireties have been adjudged to be held by the same tenure, and, therefore, not subject to sale under an execution against the husband.

2 69. Creation.-"The same words of conveyance which would make two other persons joint-tenants will make a husband and wife tenants of the entirety, so that neither can sever the jointure, but the whole must accrue to the survivor." Hence, a bequest to my daughter Catherine M., married to Samuel M., the one-eighth part to them, as it manifests by the use of the words "to them" an intent to give property to a husband and wife, gives rise to tenancy by en

ד

1 Cowper v. Scott, 3 P. Wms. 120.

2 Bond v. Simmons, 3 Atk. 21; Anon. 3 Atk. 726; Coppin v.

-, 2 P. Wms. 496.

Jickling's Analogy L. & Eq. Estates, 257, citing Temple v. Temple, Cro. Eliz. 791; Norton v. Glover, Noy, 149. As to promissory note, see Shields v. Stillman, 43 Mo. 86 4 In re Gadbury, 32 Law J. Rep. (N. S.) Ch. 780; Craig v. Craig, 3 Barb. Ch. 104; Draper v. Jackson, 16 Mass. 486; Christ's Hospital v. Rugdin, 2 Vern. 683; Rider v. Kidder, 10 Ves. 360.

5 Kingdon v. Bridges, 2 Vern. 67.

6 Patton v. Rankin, 68 Ind. 245; S. C. 34 Am. Rep. 254.

7 De Gray, C. J., in Green v. King, 2 Wm. Bl. 1213; Martin v. Jackson, 27 Pa. St. 504; Doe v. Parratt, 5 Term. Rep. 652; Farmer's Bank v. Gregory, 49 Barb. 155; Den v. Hardenbergh, 5 Halst. 45; S. C. 18 Am. Dec. 371.

tireties.1 But it seems to be essential that the spouses be jointly entitled, as well as jointly named in the deed. Hence, if the wife alone be entitled to a conveyance, and it is made to her and her husband jointly, the latter will not be allowed to retain the whole by survivorship. This is equally true where the conveyance is so made at her request, because, being a married woman, she is presumed by the common law to have acted under the power and by the coercion of her husband. Tenancy by entirety is not always created by purchase. In Pennsylvania, it has been determined that a husband and wife inheriting property as heirs of one of their children, acquire thereby an estate by entireties.3

5

2 70. Husband and Wife take as one Person.—The husband and wife not only take an entire estate as one person when it is granted to them, but they are also regarded as one person in any conveyance made to them and others, and therefore take but one moiety. Thus, if a deed be made to A and wife and B, here A and wife together take but one half. This is true whether the conveyance be intended to create a jointtenancy or a tenancy in common. A legacy was given to Captain R. G., his wife, and children. The Master of the Rolls, in construing the bequest said: "The testatrix has used no words from which it can be discovered what, if any, intention she had with respect to the proportions in which the legatees were to take and enjoy the legacy thus given to them jointly. Under such circumstances, the proportion must be determined by the ordinary rule applicable to such cases; and there being nothing to distinguish the present case from those in which the rule stated in Littleton, and applied in several cases cited at the bar, was acted upon, I am of the opinion that the legatees must take in thirds: viz., the husband and wife one, and the two children each of them one.'

1 Hamm v. Meisenhelter, 9 Watts, 350.

2 Moore v. Moore, 12 B. Mon. 664; Babbit v. Scroggin, 1 Duval, 273. Gillan v. Dixon, 65 Pa. St. 395.

Doe v. Wilson, 4 Barn. & Ala. 303; Barber v. Harris, 15 Wend. 615; Back v. Andrew, 2 Vern. 120; Bricker v. Whatley, 1 Vern. 233; Litt. sec. 291; In re Wylde, 2 D. M. & G. 724. Contra, see Warrington v. Warrington, 2 Hare, 56.

Johnson v. Hart, 6 Watts & S. 319.

6 Gordon v. Whieldon, 18 L. J. Rep. (N. S.) Chan. 5; 11 Beav. 170; Atcheson v. Atcheson, 18 L. J. Rep. (N. S.) Chan. 230; 11 Beav. 485.

871. That Husband and Wife cannot take by Moieties.— We have seen that the peculiar ground on which the tenancy by entireties rests is the legal identity of husband and wife. "Husband and wife being one person in law, they cannot, during the coverture, take separate estates; and therefore, upon a purchase by both, they cannot be seized by moieties, but both and each has the entirety." The language just quoted was used in support of the proposition that husband and wife take by entireties in all cases when there is no express limitation. But, going beyond the necessities of the case out of which it arose, it assumes, beyond mistake, that the inevitable consequence of the legal identity of husband and wife is, that they can receive, during coverture, no estate which does not vest in them by entireties. No doubt, there are a number of cases, both English and American, containing dicta which, like that quoted above, seem inconsistent with the possibility of husband and wife receiving an estate by moieties. But in addition to the dicta alluded to, there are cases directly in point affirming that the spouses cannot take estates as tenants in common, nor as joint-tenants. Thus, in New York, a deed was made to J. C. and his wife "as tenants in common, and in equality of estate, and not as joint-tenants. The Assistant Vice-Chancellor, after some discussion of the authorities, determined that this conveyance necessarily passed an estate by entireties, because there was "a legal incapacity to take in severalty, arising from a legal identity; and a grantor cannot remove that incapacity without the intervention of a trustee." In Pennsylvania, a deed to Wm. B. and his wife Rebecca, purported to convey to them "as tenants in common, and not as joint-tenants." After citing and approving the decision made by the Assistant Vice-Chancellor in New York, the Supreme Court of Pennsylvania, in an opinion in reference to the legal effect of this last deed, said: "If the doctrine to which we refer is not a mere rule for ascertaining the meaning of words, but a rule of law founded on the rights and incapacities of the matrimonial union, it

1 Green v. King, 2 W. Bl. 121.

2 Rogers v. Benson, 5 Johns. Ch. 437; Jackson v. Stevens, 16 Johns. 115; Barber v. Harris, 15 Wend. 617; Motley v. Whittemore, 2 D. & B. 537; Ketchum v. Walworth, 5 Wis. 95; S. C. 68 Am. Dec. 49.

Dias v. Glover, 1 Hoffm. Ch. 76.

must be obvious that the intention of the parties to the conveyance is entirely immaterial. If the husband and wife cannot take a conveyance by moieties, if they are absolutely incapable of receiving such a grant, it is clear that no words in the conveyance to them, however clearly expressed, can give them that capacity. How stands the argument on this question? Tenants in common may sell their respective shares. They are compellable to make partition. They are liable to reciprocal actions of waste and account; and if one turns the other out of possession, an action of ejectment will lie against him. These incidents cannot exist in an estate held by husband and wife. No action of partition or waste, or account or ejectment, can be maintained by one against the other. The husband could not sell his moiety free from the dower of his wife. The wife could not sell hers at all without the consent of her husband. It is evident, therefore, that the estate, during the lives of the grantees, or during the continuance of the marriage bond, would have none of the chief incidents of a tenancy in common. The existence of a tenancy in common, which cannot be so held or enjoyed during the lives of the holders, and which has none of the incidents of such an estate, is a legal impossibility. If they cannot hold in common during their lives, of course they cannot so hold after one of the parties is dead." So, in Ireland, when a conveyance was made to husband and wife, the Court was of opinion that the operation of that conveyance was to grant an estate by entireties; for to speak of a grant to a husband and wife as an estate of joint-tenancy is, properly speaking, a solecism."

"2

872. That Husband and Wife may take by Moieties.— The decisions, as we have seen in the preceding section, denying that husband and wife may take an estate other than by entireties, rest upon two grounds. The first and chief of these grounds is that the spouses cannot take any other estate; the second, as appears from the reasoning quoted from the opinion of the Supreme Court of Pennsylvania, is that the spouses cannot, during coverture, enjoy any other estate.