Thornton v. Thornton

• Citation: 24 Va. 179
• Parties: Thornton v. Thornton
• Decision Date: 19 February 1825
• Court: Supreme Court of Virginia

24 Va. 179

Thornton v. Thornton

Supreme Court of Virginia

February 19, 1825

[Syllabus Material]

This was an appeal from the Fredericksburg Chancery Court, where Frances and Ann F. Thornton, infants, filed a bill against Francis Thornton, by their next friend. The plaintiffs were children of the said Francis Thornton, the defendant, and Jane Thornton, his wife, who was then dead. The subject of the suit was this: John A. Thornton died, leaving a will, in which there is the following clause: " Item, I give devise and bequeath to my brother-in-law Francis and my sister Jane Thornton all the rest and residue of my estate real and personal, to them and their heirs forever, upon the terms and conditions following." These conditions are not material to the present report. Jane Thornton died in the life-time of her husband Francis. The complainants, as children of the said Jane, claimed the moiety of the said estate, which, they said, belonged to their mother; contending that their parents were joint devisees of the estate devised to them by John A. Thornton, and that by the law of Virginia, the interest of the said Jane, who died first, did not accrue to her husband, as the survivor, but descended to the complainants.

Francis Thornton answered, asserting his right to the absolute estate, in fee simple, in the lands devised by John A. Thornton to him and his wife.

The Chancellor decreed in favor of the defendant, and the complainants appealed to this Court.

For these reasons, the decree should be affirmed.

Leigh, for the appellants.

The question is, whether if lands be conveyed to husband and wife, and their heirs, during their coverture, the husband and wife be joint-tenants thereof, within the meaning of the statute of Virginia concerning partitions, joint-rights and obligations? 1 Rev. Code, 98.

It is certain the husband and wife, in such case, are not, as other joint-tenants are, seised per my et per tout. They take per tout, but not per my. There can be no moieties between them. They are both seised of the entirety; so that the alienation of either without consent of the other, and even a forfeiture by one, will in no wise affect the right of the other. The survivor takes the whole. Co. Litt. § 291. 187, b.; Ib. 133, a. Margery Moses's Case; Back v. AndrewVern. 120; Green v. KingW. Black. 1211; Glaister v. Hewer, 8 Ves. jr 199. Hence it would seem, that though husband and wife, in such case, be not joint-tenants, subject to all the incidents which attach to an ordinary estate in joint-tenancy, their estate is more emphatically a joint-estate than any other joint-tenancy whatever; since it can, by no possibility, be severed.

Are they joint-tenants within the meaning of our statute? 2 Black. Comm. 182, says, " 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." He does not say they are not joint-tenants in any sense; but only that they are not properly joint-tenants; because, unlike ordinary joint-tenants, they are seised per tout, but not per my. Their estate is more indefeasibly joint than any other joint-tenancy.

On these authorities, it has been held by the Supreme Court of New-York, in Jackson v. Stephens, 16 Johns. 110, and by Chancellor Kent, in Rogers v. Benson, 5 Johns. Ch. Ca. 437, that husband and wife, in such case, are not joint-tenants. On the other hand, Coke says expressly, that they are joint-tenants, notwithstanding the diversity between them and ordinary joint-tenants, in respect to the inseparability of their rights. Co. Litt. 299, b. And the Supreme Court of Massachusetts admits they are joint-tenants, though perfectly aware of the distinction. Shaw v. Hearsey, 5 Mass. 521.

As to the construction of our statute:

There is a statute in New-York, concerning joint-tenancy, under which it has been held, that husband and wife, in such case, are not joint-tenants within its meaning. Jackson v. Stephens, 16 Johns. 110; Rogers v. Benson, 5 Johns. Ch. Cas. 437. There is a similar statute in Massachusetts, under which there has been a similar determination. Shaw v. Hearsey, 5 Mass. 521. But these statutes are not like ours. They are by no means so strong or comprehensive. 1 Rev. Code, ch. 198, § 2.

By our statute, the jus accrescendi between joint-tenants, is abolished, " whether they be such as might be compelled to make partition or not." This is applicable to a joint-estate purchased to husband and wife, during coverture. All other joint-estates are capable of severance, either by writ of partitione facienda, or by alienation. The expression, " of whatever kind the estates or thing holden may be," extends to all sorts of joint-estates.

Stanard, for the appellee.

[The Court having entered fully into the argument on this side, it is deemed unnecessary to give the argument at the bar.]

Judge Carr. Judge Green. Judges Coalter, Cabell and the President, concurred.

OPINION

February 19. The Judges delivered their opinions.

CARR JUDGE:

The controversy in this case depends on that part of the will of John A. Thornton, by which he devises to his brother-in-law, Francis Thornton, and his sister Jane, (they being man and wife,) all the residue of his estate, real and personal, to them and their heirs, forever, on certain conditions, which it is not material to state. The wife, Jane, has since died, leaving two infant children, who, by their next friend, have filed this bill against their father, claiming their mother's moiety of the land and personal estate. The only question raised in the argument, was this; --when real estate is given to husband and wife, and their heirs, are they joint-tenants, and within the operation of our act of Assembly, which abolishes the right of survivorship?

Joint-tenants are said to be seised per my et per tout, by the half and by all; that is, (as Blackstone explains it,) they each of them have the entire possession, as well of every parcel, as of the whole. The most striking incident in joint-estates, is the right of survivorship; " the natural and regular consequence (says Blackstone) of the union and entirety of their interest." Joint-tenancy may be severed and destroyed by alienation, or any act which destroys either of its four constituent unities; and whenever, or by whatever means, the jointure ceases, or is severed, the jus accrescendi, at the same instant, ceases with it. But, though the jointure might be destroyed by various acts, yet, at the common law, there was no mode, by which a partition might be compelled; so that the joint-tenants might hold, each his moiety in severalty. To remedy this inconvenience, the statutes of 31st and 32d Hen. 8, gave the writ de partitione facienda, by which joint-tenants, and tenants in common, might be co-acted and compelled (as the statute expresses it,) to make partition. The first of these statutes applied to estates of inheritance only; the second took in estates for life or years; neither of them comprehended personal chattels. Now, although these laws use the broadest terms, " all joint-tenants that be, or hereafter shall be, of estates of inheritance," & c. may be compelled to make partition, & c.; yet it is most certain, that they have never been supposed to reach the case of lands given in fee, (or for any lesser estate,) to husband and wife; for all the books, from the oldest I have been able to examine, down to the present day, agree, una voce, in this; that husband and wife, not only cannot compel each other to make partition, but that even if they concur in the wish, they have not the power, to sever the tenancy. It is a sole, and not a joint-tenancy. They have no moities Each holds the entirety. They are one in law, and their estate one and indivisible. If the husband alien, if he suffer a recovery, if he be attainted; none of these will affect the right of the wife, if she survive him. Nor is this by the jus accrescendi. There is no such thing between them. That takes place, where, by the death of one joint-tenant, the survivor receives an accession, something which he had not before, the right of the deceased. But husband and wife have the whole, from the moment of the conveyance to them; and the death of either cannot give the survivor more.

To shew that the language I hold, is not too strong, I will quote two or three, out of the numerous cases, to be found on this subject. In Coke Littleton, 187, b. we have the following case. William Ocle and Joan his wife purchased lands to them two and their heirs. After, William was attainted of high treason for the murder of the King's father, Edward 2d and was executed. Joan his wife, survived him. Edward 3d, granted the lands to Stephen de Bitterly and his heirs. John Hawkins, the heir of Joan, in a petition to the King, discloseth this whole matter; and upon a scire facias against the patentee, hath judgment to recover the lands, for the reason (says my Lord Coke) here yielded by our author. This reason was, that husband and wife are one in law, and there are no moieties between them. In the same page it is said, " If an estate be made to a villein, and his wife being free, and to their heirs, albeit they have several capacities, viz. the villein to purchase for the benefit of his lord, and the wife for her own, yet if the lord of the villein enter, and the wife surviveth her husband, she shall enjoy the whole land, because there be no moieties between them." In 3 Rep. 5, a case is cited from Moor, which I have examined. It is a very strong one. The husband levied a fine; but this was decided to have no effect on the wife's interest. The reason given is, that there are no...