waste by writ of partition, but till the statute of Henry the Eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points. 1. They always claim by descent; whereas joint-tenants always claim by purchase. Therefore, if two sisters purchased lands to hold to them and their heirs, they are not parceners, but joint-tenants; and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man had two daughters, to whom his estate descends in coparcenary, and one dies before the other; the surviving daughter and the heir of the other, or when both are dead, their two heirs are still parceners; the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have a unity, have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety; and of course there is no jus accrescendi, or survivorship between them; for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parceners. But if the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common.

4 KENT. COM., 367. By the New York Revised Statutes,1 persons who take by descent under the statute, if there be more than one person entitled, take as tenants in common, in proportion to their respective rights; and it is only in very remote cases, which can scarcely ever arise, that the rules of

12 R. S., 753, sec. 17.

the common law doctrine of descent can apply. As estates descend in every State to all the children equally, there is no substantial difference left between coparceners and tenants in common. The title inherited by more persons than one, is, in some of the States, expressly declared to be tenancy in common, as in New York and New Jersey; and where it is not so declared the effect is the same; and the technical distinction between coparcenary and estates in common may be considered as essentially extinguished in the United States.

CHAPTER IV.

TENANCY BY ENTIRETIES.

2 BL. COM. 182. If an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.

ID., 182, n. According to Mr. Preston's definition, tenancy by entireties is where husband and wife take an estate to themselves jointly by grant, or devise, or limitation of use made to them, during coverture, or by a grant, etc., which is in fieri at the time of the marriage, and completed by livery of seisin or attornment during the coverture. I Preston on Estates, 131. So if an estate be conveyed to husband and wife and a stranger, the husband and wife will only take one moiety between them, and the stranger will take the other moiety. Litt., s. 291; Johnson v. Hart, 6 W. & S. 319. This estate has several peculiarities. Says C. J. Montague, in Plowd. 58: "The husband has the entire use and the wife the entire use; for there are no moieties between husband and wife." Hence it is termed tenancy by entireties. The husband cannot forfeit or alien so as to sever the tenancy. They are seised per tout and not per my. Neither can sever the jointure, but the whole must accrue to the survivor. As the husband and wife cannot sue each other, they are not compellable to make partition. But where an estate is conveyed to a man and woman who are not married together, and who afterwards intermarry, as

they took originally by moieties, they will continue to hold by moieties after the marriage. There is nothing, therefore, in the relation of husband and wife which prevents them from being tenants in common. There are great opinions in favour of the position that husband and wife may by express words be made tenants in common by a gift to them during coverture. 2 Prest. on Abstr. 41; I Prest. on Estates, 132; 4 Kent, 363; 1 Reed's Blackst. 470. The case of Stuckey v. Keefe's Exrs., 2 Casey, 397, holds a contrary doctrine. The acts of the legislatures of the various States abolishing joint-tenancies and converting them into tenancies in common have been construed not to extend to tenancies by entireties. Shaw et al. v. Hearney et al., 5 Mass. 521; Jackson v. Stevens, 16 Johns. 110; Den d. Hardenbergh v. Hardenbergh, 5 Halst. 42; Thornton v. Thornton, 3 Rand. 179.-Sharswood's note.

WILLIAMS, REAL PROP. (17th ed.), 376. Tenancy by the entirety has been generally recognized in the United States as one of the common-law incidents of marriage, and still exists wherever it has not been expressly or impliedly abrogated by statute. In several States it has been held that the married women's acts have destroyed the common law unity of husband and wife, and that these acts, either alone or in connection with the statutes changing joint-tenancies into tenancies in common have practically abolished the estate by entirety.1 For a like reason the Supreme Court of Iowa has decided that a conveyance to a husband and wife creates a tenancy in common, unless a contrary intention is expressed. And in Kentucky and Massachusetts the same result is secured by an express statutory provision.3 In Connecticut and Ohio, where the doctrine of survivorship has

'See Clark v. Clark, 56 N. H. 105; Walthall v. Goree, 36 Ala. 728; Cooper v. Cooper, 76 Ill. 57.

'Hoffman v. Stigers, 28 Iowa, 302.

Mass. Stat. of 1885, chap. 237, § 1; Gen. Stat. of Ky. 1888, chap. 52, art. 4, § 13.

never been recognized, tenancy by the entirety does not exist. However, by the great weight of authority the common-law rule prevails, notwithstanding both the joint-tenancy statutes and the married women's acts. Such is the holding in the following States: Arkansas, Indiana, Kansas, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Pennsylvania and Vermont. Even in these States the husband and wife may hold as tenants in common or as joint-tenants, if such an intention is clearly indicated in the instrument creating the estate. And the better opinion is that an absolute divorce terminates the estate by the entirety and reduces it to a tenancy in common.*-Hutchins' note.

1 Whittlesey v. Fuller, 11 Conn. 337; Sergeant v. Steinberger, 2 Ohio, 305.

2 See Robinson v. Eagle, 29 Ark. 202; Dodge v. Kinzy, 101 Ind. 102; Baker v. Stewart, 40 Kans. 442; Marburg v. Cole, 49 Md. 402; Lewis' Appeal, 85 Mich. 340; McDuff v. Beauchamp, 50 Miss. 531; Garner v. Jones, 52 Mo. 68; Buttlar v. Rosenblath, 42 N. J. Eq. 651; Bertles v. Nunan, 92 N. Y. 152; Long v. Barnes, 87 N. C. 329; Diver v. Diver, 56 Pa. St. 106; Corinth v. Emery, 63 Vt. 505. See, also, Pray v. Stebbins, 141 Mass. 219.

3 Jooss v. Fey, 129 N. Y. 17; Miner v. Brown, 133 N. Y. 308; McDermott v. French, 15 N. J. Eq. 78.

Stelz v. Schreck, 128 N. Y. 263; Harrer v. Wallner, 80 Ill. 197; Ames v. Norman, 4 Sneed (Tenn.), 683; contra, Lewis' Appeal, 85 Mich. 340.