Joint Tenancy with Right of Survivorship: a Legacy from Thirteenth Century England

TEXAS TECH LAW REVIEW

VOLUME XVI 1985 NUMBER 3

JOINT TENANCY WITH RIGHT OF SURVIVORSHIP: A LEGACY FROM THIRTEENTH CENTURY ENGLAND

by Anne L. Spitzer*

"Great legal decisions are rare; but great consequences often follow from measures taken to meet immediate problems."' Legal institutions are forged in the endless struggle between soci- etally entrenched structures and the needs of individuals to avoid the concomitant rigidity. The role of the lawyer in this dialectical process is to provide the advocacy and expertise to enable change to occur without tearing the fabric of society. Failure to allow change produces stasis and stagnation. Radical transformation produces disori- entation and dysfunction. Modest accretions of successful lawyers,

* Associate Professor of Law, University of Florida College of Law; B.A. Swarthmore, 1950; M.A., Ph.D. Harvard, 1966; J.D. Iowa, 1975. 1. S. MILSOM, THE LEGAL FRAMEWORK OF ENGLISH FEUDALISM 178 (Cambridge 1979) [hereinafter cited as MILSOM, FRAMEWORK]. Expanding on this theme is P. Hyams, "Trial by Ordeal" ON THE LAWS AND CUSTOMS OF ENGLAND, ESSAYS IN HONOR OF SA- MUEL E. THORNE 103-05 (Arnold, Green, Scully & White, eds. Chapel Hill 1981): • . .received opinion relies on ... [an] assumption that the initial stimulus toward change [in this case the discrediting and abandonment of trial by ordeal] originated with writers of the time, men with some distant resemblance to modern academics like ourselves! On reflection, thinkers and intellectuals are rather unlikely to have given the lead. In any age they usually explain with the benefit of hindsight change already initiated elsewhere. . . the prime movers were men of affairs and doers - who seldom get to tell their own tales . . . In retrospect the apparently deliberate general policy of change was merely the cumulative effect of many individual acts that arose from actual cases. The same theme appears in a work on modern practice skills: HEGLAND, TRIAL AND PRAC- TICE SKILLS IN A NUTSHELL 171 (St. Paul 1978): "Realize that the history of the common law is written by creative lawyer's who are able to leap the chasms that separate legal categories. . . .The need is to remain flexible and spry." Professor Hegland's advice in the quoted passage is to look beyond contract to tort, an interesting reversal of the history of the Common Law, where contract actions emerged from Assumpsit, which was essentially a tort-like action.

629 630 TEXAS TECH LAW REVIEW [Vol. 16:629 largely unnoticed and unrecorded in history, provide a series of mini- The cumu- dramas which are the raw material of the legal historian. 2 lative effect of these skirmishes appears as legal change over time. The focus of this paper is the legal institution of joint tenancy with right of survivorship. The temporal focus concentrates on the thirteenth century. Consideration of this topic will, however, lead the student back to Republican Rome3 and provide parallels to present- day tax and estate planning problems.4 The social pressures operating on thirteenth and twentieth-century lawyers seeking to effectuate the wishes of their clients will emerge as strikingly similar. The perhaps undramatic yet central thesis of this paper is that family-oriented considerations can, and will, erode and change the most adamantine of legal frameworks. Subsumed in, and complementary to, this central thesis are the following mini-theses: 1) The thirteenth century saw a flurry of creative legal experi-

2. As an eminent present-day trial lawyer and former ATLA governor, Stanley E. Prieser, views it: "[T]he majesty and the magnificence of the common law is that it can mold and fit and fashion a remedy, a control, for a social and economic condition. . . . The law is nothing more than a reflection of the monetary socio-economic condition of the time." NA- TIONAL LAW JOURNAL 27 (Aug. 17, 1981). Modern american legal historians may watch highly publicized incremental shifts in the position of the United States Supreme Court with reference to specific national issues, or (at the other extreme) search local courthouse archives for the glacial movement from fault to no- fault divorce actions through collusive suits. In either endeavor the questions posed and the solutions found are the product of litigation initiated by lawyers on behalf of their clients. The historian of medieval England is more restricted in his sources: uninformative rote pleadings, general verdicts, formalized fines, inconclusive records of litigation, opaque legislation, sparse and contradictory commentary. Intractable as these materials are, they have and will continue to yield rich data. 3. See infra text accompanying notes 62-78. 4. Recent literature illustrating this point includes e.g., Barton, Jointly Owned Spousal Properties: Reassessment Under ERTA, 41 N.Y.U. INST. OF FED. TAX 41 (1983); Harris, Allo- cating Basis for Jointly Owned Property Still Presents Unresolved Questions, 58 J. TAX'N 234 (1983); Note, Florida Tenancy by the Entireties: Federal Gift and Estate Tax Consequences Under the Economic Recovery Tax Act of 1981, 56 FLA. BAR J. 268 (1982); Note, Inheritance Taxation of Jointly Held Property in Tennessee: The Beat of a Different Drummer, 11 MEM. ST. U.L. REV. 583 (1981); Note, Estate Planning-JointTenancy: Illinois Destroys the Unity of Interest Requirementfor Joint Tenancy, 1980 S. ILL. U.L.J. 355 (1980); Gabrielson, Estate and Gift Planning for Jointly Owned Properties in the 1980's, 38 N.Y.U. INST. OF FED. TAX. 41.1.28 (1980); Mills, Community/Joint Tenancy-Avoid a Tax Double-Play; Touch the Basis, 31 S. CAL. TAX INSTITUTE 951 (1979); Note, Federal Estate and Gift Taxation of Joint Es- tates; Planningand Policy Perspectives, 32 VAND. L. REV. 1419 (1979); Lowe, Federal Transfer Taxes on Property Owned Jointly with Right of Survivorship, 44 Mo. L. REV. 371 (1979); Stu- art, Joint Ownership Before and After the Tax Return Reform Act, 21 ARIZ. L. REV. 659 (1979); Brown, Handling Tax Consequences of Joint Tenancies, 40 ALA. L. REV. 585 (1979). 1985] JOINT TENANCY mentation in conveyancing practice, triggered by the realization by tenants and their lawyers that their landholdings were becoming, or had become, "theirs" in a sense more approximating our notions of ownership than twelfth-century feudal theory would have allowed. 2) In an attempt to effectuate the family oriented designs of their clients, medieval lawyer-conveyancers drew upon commonly known and understood Roman Law language and forms as well as Anglo- Norman feudal models. 3) Some of these attempts foundered, most noticeably the revo- lutionary attempt to make real property devisable by will. Some of these attempts prospered and grew, for example, the modest effort to create a tenancy which would not "descend" by normal rules of inheritance, but "shift" among donees: the joint tenancy with right of survivorship. 4) The modest success of creating a viable joint tenancy with right of survivorship, to some extent the result of an effort to provide for illegitimate or irregular families, produced an institution which, in its turn, came to control most of the landed property in late medieval England.5 The grant in joint tenancy provided the mechanism by which the medieval use, the ancestor of the modern trust, became viable. And, ironically, such a grant succeeded in making real property de facto devisable by will,6 when more direct conveyancing efforts failed.7 5) The end result was serendipitous. The lawyers who produced joint tenancy were concerned to avoid the feudal incidents triggered by the death of a tenant, much as today's lawyers seek to avoid estate and inheritance taxes.8 Neither set of lawyers intended creation of a major new legal institution, only the avoidance of unnecessary stress on propertied individuals.

5. See infra text accompanying notes 231-32, 240. 6. See infra text accompanying notes 120-28. 7. See infra text accompanying notes 87-90. 8. Present-day use of joint tenancy to avoid death duties ultimately pushed Congress in 1976 to enact legislation equating joint tenancy with tenancy in common for purposes of the Federal Estate Tax. 26 U.S.C. § 2040 (1976). Subsequent tax acts have provided incremental changes: Revenue Act of 1978, Pub. L. No. 95-600 § 511, 92 Stat. 2763, 2881 (1978); Techni- cal Corrections Act of 1979, Pub. L. No. 96-222 § 106 (a)(3)(A) & (B), 94 Stat. 194 (1980); Economic Recovery Tax Act of "981, Pub. L. No. 97-34 § 403 (c)(1)(2) & (3)(a), 95 Stat. 172, 301-02 (1981). For the House Committee's explanation and legislative history of the 1981 act, see Economic Recovery Tax Act of 1981, Pub. L. No. 96-222, 1981 U.S. CODE CONG. & AD. NEWS (94 Stat.) (No. 733 & 403). 632 TEXAS TECH LAW REVIEW [Vol. 16:629

I. JOINT TENANCY TODAY There exist today three kinds of concurrent interests in property by which each co-tenant is entitled to the possession and enjoyment of the entire property: tenancy in common, joint tenancy with right of survivorship, and tenancy by the entireties. The last is, in effect, a sub-species of joint tenancy narrowly confined to married couples as co-tenants, and it includes the right of survivorship.9 For purposes of this analysis, thus, comparison of tenancy in common with joint tenancy will suffice. In tenancy in common, each co-owner has a separate and distinct claim to a share of the ownership, but all co-tenants share equally the right to possession of the whole. In joint tenancy each co-owner has a claim to the whole of the ownership as well as sharing equally the right to possession. Statutes in more than half of the United States create a presumption of tenancy in common absent other clear indicia of intent to create some other form of co-tenancy, and tenancy in common is the legally preferred form of co-ownership in this coun- try. 0 The relationship among cotenants during the tenancy's existence is not markedly different in the two kinds: all co-tenants have an equal right to the possession of the whole, economic benefits of possession accrue to all, and actual possession by one co-tenant impresses a fiduciary role on the possessor in favor of those out of possession."I It is in the creation of the co-tenancy, and in its destruction, where differences appear between the two kinds. Tenancy in common, being the preferred form of co-tenancy, can be created by almost any transfer of property rights to more than one person. A conveyance creating a joint tenancy must be deliberately and technically worded to produce the requires result, and much confusion and litigation has resulted from imprecise draftsmanship in this

9. POWELL & ROHAN, POWELL ON REAL PROPERTY 611 (1968) (one volume editon). As of 1968 ownership by the entireties was recognized in less than half of the states. Id. at 619 & n.3. In at least one state, Florida, tenancy by the entireties is the presumptive form of ownership of property acquired by a married couple either by conveyance or devise. Par- ramore v. Parramore, 368 So.2d 1306 (Fla. App. 1978); Farris v. Farris, 304 So.2d 526 (Fla. App. 1974); Wilburn v. Wilburn, 143 So.2d 518 (Fla. App. 1962). 10. POWELL ON REAL PROPERTY, supra note 9, No. 602 n.3 lists 29 such jurisdictions. Taken in conjunction with 17 states which have severely curtailed or abrogated the right of survivorship by statute, and the three states which have done so by judicial action the strong modern tendancy for tenancy in common over other forms of ownership is clear. Id. See also Hines, Real Property, Joint Tenancies: Law, Fact, and Fancy, 51 IOWA L. REV. 582, 585 (1966) (charting the use of joint tenancy since the early middle ages). 11. For all this see POWELL ON REAL PROPERTY, supra note 9, Nos. 603-08, 617. 1985] JOINT TENANCY 633 area. 12 In addition to the difficulties impressed by the modem disap- proval of joint tenancies, creation of a joint tenancy is hampered by holdovers from its common-law history. Principle among these is the requirement that a valid transfer into joint tenancy must demonstrate the "four unities" of interest, title, time, and possession. 13 That is to say, to hold validly in joint tenancy, the co-owners must have identical interests, accruing from one conveyance, commencing at the same moment in time, and held in identical and undivided possession. As a corollary of the rule of the four unities, conveyance into joint tenancy still often requires the use of a straw man for validity. 4 Creation of a joint tenancy is thus beset by many difficulties. None of these stric- tures hamper creation of a tenancy in common. The method and consequences of terminating co-ownership also differ markedly between joint and common tenancy. Co-tenants in common can alter the relationship among themselves by contract. A single cotenant in common may sell, lease, or mortgage his fractional share to an outsider, without impact on the basic co-tenancy in common.I5 Should joint tenants engage in any such activity, the tenancy may irretrievably collapse into a tenancy in common. 16 A tenancy in

12. Id. No. 618. See also Comment, Muddy Waters: Concurrent Ownership with Rights of Survivorship in Alabama after Durant v. Harwick, 24 ALA. L. REv. 147 (1983) (discussing a veritable historical comedy of errors which has produced tenancy in common with right of survivorship); Denniston, Joint Tenancy and Tenancy in Common Law Technicalities v. the Grantor'sIntent, 82 W. VA. L. REv. 335 (1979) (discussing whether the common-law requirement of the four unities must still be satisfied in West Virginia to create a joint tenancy). 13. POWELL ON REAL PROPERTY, supra note 9, No. 615. The four unities reached our shores in the eighteenth century from 2 W. BLACKSTONE COMMENTARIES 180, accepted un- critically in the Colonies, and assumed as a common law "given" in the receptions of that law by the states as they entered the Union. The four unities are not universally required. See Note, Estate Planning-Joint Tenancy.- Illinois Destroys the Unity of Interest Requirementfor Joint Tenancy, 1980 S. ILL. L.J. 355 (1980). 14. A grant from A to A and B jointly will fail since A's interest patently predates B's, thus flawing the unity of time. To effect the grant A must convey to X, who then reconveys to A and B in conformity with the requirements. The practice is at least as old as the 13th century, see the discussion of Thomas of Weyland's case infra note 131. All of Thomas' grants to himself and his wife were through strawmen. The need for a strawman persisted in Illinois at least until 1932. Crow v. Crow, 348 Inl. 241, 180 N.E. 877 (1932). See Jackson, Voluntary Termination of Joint Tenancies Illinois Eliminates the Strawman, 17 J. MAR. L. REV. 765 (1984). 15. POWELL ON REAL PROPERTY, supra note 9, No. 608. 16. Id. No. 618. For a discussion of the fragile and confusing line between joint and common tenancy, see Cocks, Co-ownership rights of Occupation and Obscurity, The Convey- ancer and Property Law 198 (Great Britain] (N.S.) (1984); Preece, Effect of PartialAlienation by a Co-owner of Land, 55 L. INST. J. 115 (1981); Note, Concurrent Estates in Land: Joint Tenancy Between Two Married Couples, or a Married Couple and Another Person--JointTen- 634 TEXAS TECH LAW REVIEW [Vol. 16:629

common is terminated by partition, with or without a judicial pro- 18 ceeding.' 7 A joint tenancy can be partitioned only after judgment, or after the tenancy has become a tenancy in common through some other means. Upon the death of one co-tenant in common, his right, title, and interest descends to his heirs, assigns, or legatees. Upon the death of a cotenant in joint tenancy the right of survivorship is triggered: the decedent's right, title, and interest accrues to his surviving joint tenant or joint tenants. Thus the consequence of the demise of a cotenant is strikingly different depending on whether the tenancy is joint or in common. It is this aspect of joint tenancy which has led to its use as a substitute for testamentary devise, creating problems in the areas of estate planning and taxation. 9 It is this effect of the right of survivorship which probably accounts for the continued existence, in fact resurgence, of joint tenancy in the face of consistent official resistance.20 Outside the realm of real property, marital personalty is often held jointly. The pattern has flown in the face of the advice of estate planners and tax lawyers who have warned that a decision to hold in joint tenancy does not adequately replace testamentary disposition.2 ' Fiduciaries also often hold in joint tenancy, especially where family members act as trustees. Perhaps not surprisingly the present-day af-

ancy By the Entirety Within the Married Couple, 46 Mo. L. REV. 439 (1981); Uchtman & Hartwell, Qualified Disclaimer of Joint Tenancies: A Policy and Property Law Analysis, 22 ARIZ. L. REV. 987 (1980); Severance of Joint Tenancy, [Great Britain] 100 LAW QUARTERLY REVIEW 161 (1984); Wegner and Boehje, Consequences of Joint Tenancy Ownership of Prop- erty, 6 J. AGRIC. TAX. AND LAW 429 (1984); How NOT to Sever Joint Tenancy, [Great Britain] The Conveyancer and Property Law (N.S.) 148 (1984). 17. POWELL ON REAL PROPERTY, supra note 9, Nos. 610-11. 18. Id. No. 618. 19. In addition to the material cited supra note 4, see Harris, Will Substitutes, 4 ALA. L. REV. 235 (1980). 20. Supra note 10. The resurgence of popularity of joint tenancy noted by Hines, supra note 10, at 585, rests on statistics showing that in some areas in the United States over fifty percent of real estate purchased by married couples is owned in joint tenancy. Id. Where tenancy by the entireties is the presumptive form of co-tenancy, the percentage is even higher. See supra note 9. The reasons, public and private for the resurgence of joint tenancy in the modern United States are not within the immediate purview of this paper. What is clear is that social, economic, and probably emotional factors have led a significant percentage of the American popu- lation to choose this form of concurrent ownership over others. See Hines, supra note 10, at 582. Similar forces no doubt govern the tenancy at its emergence. See infra text accompanying note 145. 21. Hines, supra note 10, at 485-95. 19851 JOINT TENANCY filiation of joint tenancy and the right of survivorship with family settlements, avoidance of death duties, and fiduciary responsibilities mirrors that of the tenancy in the thirteenth century when it first sur- faced in English legal history.2 2 The purpose of this paper is to ex- plore the circumstances surrounding that emergence. Before attempting that exploration it is necessary to define the subject under consideration and provide a brief retrospective view of its history prior to the nineteenth century. The distinguishing feature of joint tenancy, as opposed to other forms of co-ownership, is the right of survivorship. On the death of one joint tenant, his right to the 24 entire property accrues 23 to his surviving joint tenant or tenants. Heirs and legatees of a deceased joint tenant are barred from asserting any right to the property against a surviving joint tenant. Any severance of the tenancy must be done during the lifetime of the severing tenant; his right cannot survive him. This fact has governed most academic commentary and appellate opinion on the tenancy, but is not very illuminating as to the motives which have led people to choose this form of co-ownership over others. Nor does the history of modes of severance assist in the discovery of the origins of joint tenancy.

II. RETROSPECTIVE HISTORY OF JOINT TENANCY To THE FIFTEENTH CENTURY The legal definition of joint tenancy has not changed significantly since the eighteenth century. Blackstone defined the tenure by reference to the four unities of interest, title, time, and possession. 25 That definition is still considered sufficiently relevant for mention in modem property hornbooks to the mystification of first-year law students.26 In the fifteenth century Littleton gave us the earliest articulated

22. See infra text accompanying note 145. 23. For the meaning of the term of art "to accrue" see infra text accompanying notes 46, 145. 24. An American court's alternative mode of expressing this concept is that "Death ter- minates the interest in the estate." Fleming v. Fleming, 194 Iowa 71, 88-89, 174 N.W. 943, 953 (1921). 25. 2 W. BLACKSTONE, COMMENTARIES § 180. 26. See AISLER, SMITH & TEFFT, CASES ON PROPERTY 693 (1960); CHUSED, A MOD- ERN APPROACH TO PROPERTY 223-24 (1978); DONOHUE, KAUPER & MARTIN, CASES AND MATERIALS ON PROPERTY 566 (1974); MOYNIHAN, INTRODUCTION TO THE LAW OF REAL PROPERTY 217 (1962); POWELL ON REAL PROPERTY §§ 615-19 (abridged ed. 1968); 4 J. THOMPSON, REAL PROPERTY § 1777 (replacement ed. 1961). To qualify as joint tenants, co- 636 TEXAS TECH LAW REVIEW [Vol. 16:629 discussion of the tenancy.27 According to Littleton joint tenancy had necessarily to arise out of purchase: inheritance could not create a joint tenancy. 28 A grant to two or more persons was presumed to create a joint life tenancy. 29 A grant to two or more and the heirs of their bodies was presumed to create a joint life tenancy with several inheritance in tail.30 A grant to two or more persons in fee simple was presumed to create a joint fee simple. Such a grant served ultimately to vest the entire fee in the heir of the last surviving joint tenant, the fee having accrued 3' to his ancestor from the other feoffees by right of 3 2 survivorship. In Littleton's time, a joint tenancy was subject to partition by the consent of all tenants, but partition could not be forced on an unwill- ing joint tenant.33 Such compulsion was not available until provided by statute in 1539.34 Much of Littleton's discussion concerns the means of severing the tenancy to produce tenancy in common, and charging the survivorship in favor of a joint tenant's creditors. Littleton does not discuss what was perhaps the chief purpose for which joint tenancy was employed in his time: the grant to joint feoffees to hold to the use of whomsoever the donor chose. 35 The ancestor of the modern trust, this form of holding property familiar to us as the medieval "use," rested in large part on the unique right of survivor- tenants must have identical interests in the property, hold by identical titles covering the same period, and take possession simultaneously. 27. LITTLETON, His TREATISE ON TENURES §§ 277-91 (1841) [hereinafter cited as LITTLETON] 28. Id. § 280. This would provide the necessary Blackstonian "unities." The thirteenth century was less clear about excluding coheirs from the operation of the right of accrual. 29. Id. § 283. Note that by the fifteenth century the presumption in favor of joint tenancy was firmly established. Id. § 280. 30. Id. at § 283. In this case the right of survivorship acted to postpone the rights of the donees' heirs until all joint feoffees died, after which all the heirs held in common rather than jointly. The common tenure of the heirs permitted unilateral severance. The donor was barred from any reversion of the life estate, and his reversion of the portion of a deceased joint tenant who died without issue was postponed. 31. For accrual as a term of art, see infra text accompanying notes 56, 145. 32. LITTLETON, supra note 27, § 280. This was clearly the case in the fifteenth century and later. See 7 Letters & Papers, Foreign and Domestic of the Reign of Henry VIII, ed. J.S. Brewer; J. Gairdner, and R. Brodie (22 vols. in 35 London, 1864-1932); 384, No. 1099. This result caused some problems to thirteenth century commentators, see infra text accompanying notes 185-224. 33. LITTLEON, supra note 27, § 283. 34. 31 Hen. VIII c.1 (1539). 35. Perhaps Littleton felt the topic so familiar as not to be worth discussing. Perhaps he felt the subject not relevant to a treatise confined to tenures. Given the pervasiveness of the use in the fourteenth century, however, the omission is odd. 1985] JOINT TENANCY ship and impartibility characteristics of joint tenure. As Milsom notes, By granting to a plurality of third parties in joint tenancy the grantor ensured that the land would stay in the hands he had chosen, because at the death of one of his feoffees his title would accrue to the others . . . As the title of third parties ceased to be merely a temporary thing, it thus developed into an unassailable mortmain 36 By granting the trust res to joint feoffees in fee simple, the donor was ensured that the res would not pass to the heirs and creditors of the feoffees, at least until the last feeoffee died. The impossibility of forc- ing partition upon the feoffees protected the integrity of the res. In an era before equity took up the protection of the beneficiaries of uses, and before corporate trustees were available, the usefulness of joint tenancy for such purposes is obvious. Littleton does mention a related function found for joint tenancy in the fifteenth century: property owners routinely granted to joint feoffees to follow the instructions to be found in their last wills. 37 Lit- tleton himself left a will disposing of lands held by his feoffees, as did most men of means of his day. 38 As with the use, the right of survivorship and impartibility served to protect the testator and his property from problems with the feoffees. The pervasiveness of this form of circumvention of the common-law prohibition of the devise of real property, together with the equally prevalent feoffment to use, would eventually lead to the sixteenth-century Henrician statutes of Uses and Wills.39 But in the fifteenth century, that consequence lay in the future, unseen by Littleton. According to Littleton, fifteenth-century lawyers recognized four kinds of estates held in co-ownership: joint tenancy (the presumptive favorite); coparcenary (tenancy by co-heiresses and occasionally by co-heirs male); tenancy by the entirety; and tenancy in common.' Holdsworth notes that all four were prevalent if not precisely distinguished in terminology in the fourteenth century by the reign of Ed- ward III."I Holdsworth further suggests that Bracton, writing in the

36. S. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW 211 (2d ed. 1981) (hereinafter cited as MILsoM, FOUNDATIONS]. 37. Lrl-LETON, supra note 27, § 287. 38. M1LsOM, FOUNDATIONS, supra note 36, at 184. 39. 27 Hen. VIII c.10 (1535); 32 Hen. VIII c.1 (1540); 34-35 Hen. VIII c.5 (1542). 40. LITTLETON, supra note 27, at §§ 277-324. 41. 3 W. HOLDSWORTH, HISTORY OF ENGLISH LAW (1942) [hereinafter cited as HOLDS- 638 TEXAS TECH LAW REVIEW [Vol. 16:629 thirteenth century," recognized at least coparcenary and joint tenancy, and perhaps even tenancy by the entirety.43 A close reading of Bracton demonstrates that he distinguished joint tenure, coparcenary, tenure in common, and a whole category of interspousal rights including aspects of tenure by the entirety, joint tenure, and conditional tenure which may be loosely subsumed under the general category of maritagium." In the following section, some preliminary matters necessary for full understanding of thirteenth-century developments will be considered.

III. PRELIMINARY MATTERS A. Terminology At the outset some problems of thirteenth century terminology must be faced because the Latin and Norman French texts seldom distinguish among the possible kinds of co-tenancy under consideration. The Latin treatises, such as Bracton and Thornton,45 use tenure "in commune" indiscriminately to cover the tenure of coheirs and coheiresses, copurchasers, intercommoners, and spouses. Britton, a

WORTH]. This is presumably the same period which Maitland calls the "later middle ages" in which he distinguishes the same four. 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF THE ENGLISH LAW BEFORE THE TIME OF EDWARD I 245-46 (2d ed. 1952) [hereinafter cited as POLLOCK & MAITLAND]. 42. Our dating of Bracton's treatise has been set back into the early thirteenth century by Professor Thorne's recent contributions. S.E. THORNE, 3 BRACTON, De Legibus et Consue- tudinbus Anglie xiiii-li (1977) (Introduction) [hereinafter cited as BRACTON]. 43. 3 HOLDSWORTH, supra note 41, at 126-27. Maitland, referring to "the later middle ages," agrees in 2 POLLOCK & MAITLAND, supra note 41, at 245. He also notes that in the thirteenth century the right of accruer might have applied in the case of coparcenary, but distinguishes that heritable tenure from true joint tenancy on the grounds that severance was possible without the acquiescence of all. See infra text accompanying notes 150-69. 44. Bracton's distinction between joint tenure and coparcenary is possibly a shift from Glanvill's twelfth-century treatment of coparcenary. Glanvill attributed the ius accrescendi,or right of survivorship, to coparceners. GLANVILL, TREATISE ON THE LAWS AND CUSTOMS OF ENGLAND vii, 3 (G.D.G. Hall ed. 1965) [hereinafter cited as GLANVILL]. Bracton seems to follow, but certainly by the mid-thirteenth century coparceners were often seen as heirs of each other, rather than as taking by survivorship. See infra notes 160-79. 45. GILBERT OF THORNTON, Summa de legibus et consuetudinibus Anglie [hereinafter cited as THORNTON]. The work is an abridgment and update of Bracton done in the years immediately preceding and following 1290. Thornton was Chief Justice of the King's Bench 1290-1295. The Summa exists in two manuscripts, Lincoln's Inn Ms. Hale 135 and Harvard Law Library Ms. 77. A transcript of a major part of the work, together with Introduction, comprise this writer's Ph.D. thesis submitted to the Department of History of Harvard Uni- versity in 1966, and are on file at Harvard. Citations to Thornton are by folio to the Harvard manuscript. 1985] JOINT TENANCY 639

French epitome of Bracton, uses "commun" throughout his treatise.46 Without additional data from contemporary record, an historian might be tempted to conclude that the thirteenth century made no distinction among co-tenancies. 47 However, the Yearbook reports, in French, even those contemporary with Britton, distinguish jont feffe,a joint feefe,4 9 and joynt tenant50 from tenure en commun possession.51 The record of cases printed in the modem editions of the Yearbooks usually give the latin adverb coniunctim for the reporter's French joint feoffment.5 z Precise distinction, however, is by no means universal particularly when coheirs53 and coexecutors54 are involved.

46. 1 BRrrTON 231, 284, 285 (F.M. Nichols ed. 1865) [hereinafter cited as BRITrON]. 47. Both HOLDSWORTH, supra note 41, at 126-27, and 2 POLLOCK & MAITLAND, supra note 41, at 20, perpetuate this confusion. Maitland's view, given without benefit of citation, is that joint tenancy with right of survivorship (ius accrescendi) predates tenancy in common historically. 2 POLLOCK & MAITLAND, supra note 41, at 20. He further distinguishes, for the "later middle ages," tenancy in common, joint tenancy with right of survivorship (unsever- able), coparcenary (perhaps with right of survivorship but subject to partition), and by the entireties (confined to spousal cotenancy). Compare this view with Holdsworth's assessment of thirteenth century co-tenancies. See HOLDSWORTH, supra note 41, at 126-27. 48. Y.B. 20 Ed. I 97 (1292), Rolls Series (1866). 49. 2 Eyre of Kent 97 (1313), 27 Selden Society (1912). 50. Y.B. 20 Ed. 1 181 (1292), Rolls Series (1866). 51. Id. at 106. See also Casus Placitorum 39, No. 162, 69 Selden Society (1950), a case noted in Ms. "C" probably datable to the early fourteenth century: man and wife purchase land "ensemble a eus e lur heirs e sunt joint amedeus en la chartre e sunt feffe." Cf Brevia Placitata, 66 Selden Society 121 n.4 (1947) and Casus Placitorum 41, No. 82, 69 Seldon Soci- ety (1950) (Ms. D.) in which mother and daughter purchased land 'joyntment a eus e lur heirs." 52. Y.B. 22 Ed. I 551 (1294), Rolls Series (1873). One case recorded on the De Banco Roll of 4 Edward I (Easter 1276) seems to place coniunctim in the area of spousal cotenancy: Robert le Vavassour enfeoffed his daughter, Matilda, "separatim et per se... et non coniunctim con aliquo alio nomine maritagii vel alio modo." Casus Placitorum 118, 69 Selden Society (1950). Bracton also uses the adjective coniuncti to apply to spouses: husband and wife described as coniuncti by marriage or in the bona fide belief that they are married. 2 BRACTON, supra note 42, at 185. Bracton is here following Raymond de Penafort's SUMMA DE CASIBUS iv. 24.1. See also H. RICHARDSON, BRACTON 96-97 (Selden Society Supplemental Series II 1965). Coniunctimfeoffati also appears in the Thomas of Waylands case discussed infra notes 132-43. At several points Bracton introduces the term "adjunct" in an attempt to distinguish the rights of a wife with respect to lands held with her husband, and those of coparceners with respect to the common property. Compare 3 BRACTON, supra note 42, at 129, with 3 BRACTON, supra note 42, at 113, 124, in which a free woman marries a villein. Apparently the term adjunct did not become common. 53. For example, in 1309 two separate French reports of the same case concerning coheiresses speak of their tenure variously as en common andjontfeffe. The ladies appear to be coparceners and the confusion may reflect contemporary indecision as to nomenclature. Y.B. 2-3 Ed. II 143-44 (1309), 19 Rolls Society (1904). Similarly, in 1313 two brothers in Kent are said to hold lands coniunctim, and although it is possible that the land was purchased 640 TEXAS TECH LAW REVIEW [Vol. 16:629

Purchase "ensemble," whether by husbands and wives or other copurchasers, seems to have created a joint tenancy. 5 There is, however, one term which is unvaryingly clear, and when applied to any co-tenancy almost always identifies it as a joint tenancy: the ius accrescendi or right of accruer,the Latin and French ancestral names of the right of survivorship. When there was a grant in joint tenancy, the right of any joint tenant who died would accrue to his surviving joint tenant or tenants by the ius accrescendi5 6 The ius accrescendi was sometimes held to operate between coheirs, at least for some period in the late twelfth and thirteenth centuries. 7 Britton, writing at the end of the thirteenth century, seems to say that jointly, it is more probable that the brothers inherited in gavelkind. 2 Eyre of Kent 13 (1313), 27 Selden Society (1912). There is considerable support for the proposition that in the late twelfth through the thirteenth century coparceners, male and female, were considered to hold jointly until the inheritance was partitioned, and that the right of survivorship operated when one died without heir of the body. GLANVILL, supra note 44, at 76; 2 BRITTrON, supra note 46, at 73, 315-16. For a more in depth consideration of the position of coheirs see infra text accompanying note 142. 54. In 1292, four executors held a leasehold en common possession where one would ex- pect to find joint tenancy. Y.B. 20 Ed. I 102-06 (1292), Rolls Series (1866). 55. Casus Placitorum 39, No. 162, 69 Selden Society (1950) (probably early fourteenth century). See supra note 51. 56. The term still appears in hornbooks, see MOYNIHAN, supra note 26, at 220. The clearest, and perhaps earliest, case appears in Casus Placitorum 39, No. 162, 69 Selden Society (1950). The law instructor poses the hypothetical: A man and his wife purchase land together [ensemble] to themselves and their heirs and are "'jointamedeus en la chartre e sunt feffe." No issue of the marriage. H dies leaving a brother. W survives then dies leaving a sister. Who inherits? Answer: the wife's sister, the wife having died in demesne as of fee pursuant to the ius accrescendi. Id. No precise date can be assigned to this pedogogical exercise. Some of the cases in the series can be dated as early to 1272, others may be as late as the early fourteenth century. In any event we can at least learn that law teachers and students in the late thirteenth or early fourteenth centuries were concerned over the ultimate devolution of property held jointly where the heirs of the tenants might not be identical. 57. See GLANVILL, supra note 44, vii, 3: "It should be noted, however, that if one of the brothers or sisters between whom an inheritance is divided dies without heirs of his or her body, then his or her portion accrues [accrescet] to the remaining brothers or sisters." Glanvill's text is presumed to have been written between 1187 and 1189. Id. at xi (Introduc- tion). Bracton, writing in the first third of the thirteenth century, follows Glanvill, although somewhat equivocally, nowhere saying that the ius accrescendiis the only operative method of devolution among coparceners. Maitland was of the opinion that the ius accrescendi could operate between coparceners, but only prior to compelled partition. See supra note 43. This seems to run contrary to Bracton's discussion of hotchpot, by which coheirs were required to redistribute the inheritance in the event to disproportion. 2 BRACTON, supra note 42, at 226 (fol. 78). 19851 JOINT TENANCY

it would so operate.5" Recorded thirteenth-century cases, however, show that devolution of property rights among coheirs went according to the ius successionis (right of succession) rather than by the ius accrescendi (right of accruer).59 By the fifteenth century Littleton could assert that inherited land was never held jointly so as to be subject to the right of survivorship. 6 The ius accrescendi may be perceived as an anomaly in an era emerging, or recently emerged, from an age peculiarly dedicated to the protection of the rights of heirs and lords or donors. 6' Con- versely, it may be perceived as one of a number of possible mechanisms available to knowledgeable lawyer-conveyancers to avoid the cumbersome vestiges of an increasingly anachronistic system of devolution of property. The essential impact of the ius accrescendi served to postpone all reversionary and hereditary claims to property until the last of the tenants holding pursuant to the ius died. What hap- pened then was not entirely clear during the thirteenth century, but proved worth experimenting with, pending clarification. At best the rights of heirs and donors were postponed; at worst they were subject to being defeated altogether. The provenance of this anomalous ius accrescendi will next be examined. The term came to twelfth-century England from Roman Law.

B. Roman Law Antecedents As a term of art the ius accrescendi antedates the Common Law by probably a thousand years. Pre-Republican Rome knew the ius accrescendi as the vehicle by which coheirs acquired a lapsed legacy.62

58. 2 BRITTON, supra note 46, at 73, 315-16. Britton is here following Bracton who is not quite as categorical as Britton. 59. See infra notes 160-79. 60. LITrLETON, supra note 27, § 280. 61. For the transition from feudal "tenure" with its concomitant concerns with the rights of heirs and lords, to a system more nearly approaching modern concepts of ownership vested in the tenant, see MILSOM, FRAMEWORK, supra note 1; Thome, English Feudalism and Estates in Land, 1959 CAMBRIDGE L. J. 193. Thorne's work suggests that during the very late twelfth century or the early thirteenth century, tenants of land came to realize that constraints on their exercise of control over their real property, previously operating in favor of their lords and heirs, were no longer strictly binding. 1959 CAMBRIDGE L. J. at 207. Milsom has developed Thorne's theme into the major thesis that legal theory, nurtured by Roman notions of property, and royal legislation aimed at making twelfth-century feudalism work, transformed de facto customs governing the devolution of property into an intractable doctrine of ownership. 62. F. SCHULZ, CLASSICAL ROMAN LAW 296 (Oxford 1951). Whether such heirs were sui, strangers instituted under a will, or agnates in intestacy, the ius accrescendi would operate TEXAS TECH LAW REVIEW [Vol. 16:629

Abrogated under the Lex Julia et Papia, the ius accrescendi was re- vived by Justinian63 and duly appears in the Digest defining the rights of heirs.6' When a colegatee either could not or would not accept his portion of the legacy, that portion accrued (accrescit) to his coheirs. This aspect of the ius accrescendi is reflected in Glanvill in the late twelfth century. Glanvill uses the verb accrescere to explain how property was acquired by coparceners (coheirs) upon the death of one of them without heirs of the body.65 Bracton, writing in the early thirteenth century, expands on Glanvill's treatment 66 but by the mid- thirteenth century, inheritance came to replace accruer as the term descriptive of acquisition in coparcenary.67 In Roman Law, this mode of acquisition among coheirs had, by the second century A.D., when Ulpian was writing, faded into the background. 68 The Institutes note only a remnant of the ius accrescendi, where one of several legatees of a slave sought to manumit him. As Ulpian noted, and the Institutes follow, the manumitter's 69 portion of the slave accrued to his co-owner (adcrescit socio SUO). Under Justinian, the force of this was changed from vesting lordship of the slave in the co-owner to liberating the slave and placing the manumitter under obligation to compensate the co-owner or owners. 70 This remnant of the ius accrescendi seems unlikely to have at- tracted the attention of thirteenth-century English lawyers, and indeed seems to have been ignored. 7' to augment the shares of those heirs capable of sharing the whole legacy in case of a lapse. 2 Gaius 199, 223; Ulpian § 24, No. 12, 26.5; Digest 28.5.17.1, 28.5.15, 28.5.60.3, 28.5.64, 32.80, 37.4.12, 28.16, 9, 50.16.14; Code Theodocious. 5.1.4; Novella. 6.1.3. 63. SCHULZ, supra note 62, at 296. 64. Digest 28.5.17.1, 28.5.15, 28.5.60.3, 28.5.64, 32.80, 37.4.12, 28.16, 9, 50.16.14; Y.B. 20 Ed.I 181 (1292), Rolls Series (1866). 65. GLANVILL, supra note 44, at 76: "It should be noted, however, that if one of the brothers or sisters between whom an inheritance is divided dies without heir of his or her body, then his or her portion accrues (accrescet) to the remaining brothers or sisters." Glanvill is presumed to have been written between 1187 and 1189. Id. at xi (Introduction) (for a full discussion of this usage of the ius accrescendi and common-law coparcenary, see infra notes 150-69 and accompanying text). 66. 4 BRACTON, supra note 42, at 83 (fol. 341b), 172-73 (fol. 374), 176 (fol. 375) (citing to cases of 9 and 10 Hen. III). 67. Casus Placitorum, 70 Selden Society 39/162 (1950). For a full discussion of the ius accrescendi and common-law coparcenary, see infra text accompanying notes 150-69. 68. Ulpian 1.17 (noting the statutory abrogation). 69. Institutes 2.7.4. 70. R. LEAGUE, ROMAN PRIVATE LAW 176 (1961). 71. League terms the ius accrescendi a "minor mode of acquisition" basing his remarks only on the Institutes, confined to accruer of colegatees of slaves. Id. at note 60. 1985] JOINT TENANCY

Turning from the Institutes to the Digest we find similar concerns with coheirs and slaves. In its discussion of usufructs, the Digest notes that "whenever there is a bequest of a usufruct, if it is bequeathed jointly (coniunctim), the ius accrescendi operates among the legatees." 72 The Digest proceeds to discuss the problem of the manumitted slave, and, indeed, much of the late Roman Law of usufructs seems to concern itself with slaves.73 But this concern was not exclusive, and the life interest of a usufructuary could pertain to other forms of property, including land. The Digest introduces us to the situation in which a usufruct is bequeathed to a woman "with her children."74 If she loses her children she retains the usufruct. If, on the other hand, she predeceases them they shall have the usufruct by the ius accrescendi. There are strong parallels in Bracton to this section of the Digest.75 This is not to suggest that Bracton imposed Roman law directly to the English experience. As Maitland has taught us, the early cleri- cal-administrative common lawyers tended to use Romanesque terminology available to them through their university education or through commonplace use of quotations from the Sext maxims to analogous English situations.7 6 Roman and Common Law differences between usufructs and tenures, the rules of inheritance, and the position of women made exact analogy impossible. When, however, the language of the Roman law was useful, it was used. For example, the term ius accrescendi was useful and while its application to the position of slaves was inappropriate, we shall see that the twelfth and thirteenth centuries applied the term both to the case of inheritance lapsing among coheirs and to grants closely approximating the Di- gest's gift to a woman "with her children."77 It also came to be used in connection with other sorts of grants to multiple parties.78 But before we turn to the medieval adoption of the term ius ac-

72. Digest 7.2.1. This seems analogous to the situation of coheirs, and may account for the early rule that coparceners held jointly, subject to the ius accrescendi. 73. See LEAGUE, supra note 70, at Index sub. verbum Usutructus. 74. Digest. 7.2.8. 75. 2 BRACTON, supra note 42, at 54 (fol. 13), 21 (fol. 21), 95 (fol. 28), 3 BRACTON, supra note 42, at 271-72 (fol. 262); 4 BRACTON, supra note 42, at 176 (fol. 375). See infra text accompanying notes 173-82. 76. 2 POLLOCK & MAITLAND, supra note 41, at 218. 77. See infra notes 150-69. 78. See infra text following note 169. TEXAS TECH LAW REVIEW [Vol. 16:629 crescendi, we must first examine a variety of other "experimental" novelties introduced in the late twelfth and thirteenth centuries.

C. Medieval Experimentation in Conveyancing Recent work on the development of the law of real property in the middle ages discerns a critical period in the late twelfth century when feudal tenure made a quantum leap into something resembling modern ownership.7 9 The personal bonds of lordship and the military requirements of theoretically indivisible knights fees, inherent in An- glo-Norman feudalism, required that both lord and heir be able to exercise a post-mortem veto on alienations by a feudal tenant. By the end of the twelfth century, such a veto no longer had any force. The social forces and mechanisms by which this was accomplished need not concern us here. What is of importance to the theme and focus of this article is that the shift ushered in what Van Caenegem has char- acterized as the "miraculous" thirteenth century,80 a period of experimentation aimed at expanding the perimeters which were to define freedom of alienation. The motives behind these attempts were various. One was to avoid the feudal incidents due the lord on the death of a tenant.8, Another was to provide for younger sons, daughters, and bastard children. Another motive may have been to acquire liquidity for payment of debts, in vita orpost mortem. The vehicle used was the conveyance, whether by charter or fine, the wording of which would stamp the character of the land transferred. Bracton in several passages enunciates the proposition that a private covenant may bind the law, conventio, or modus, vincit legem. s2 "For the modus imposes a law on a gift; the modus must be observed even if counter to common right and to what the law would provide, for modus and agreement (conventio) defeat law (vincunt legem)." 3 Bracton could see very few limitations to this rule. He felt that no private agreement could render real property devisable, but his handling of this exception leaves some doubt as to whether he was con-

79. See supra note 61. 80. R. VAN CAENEGEM, ROYAL WRITS IN ENGLAND FOR THE CONQUEST TO GLANVILLE, 77 Selden Society (1958-59) (Intro. 1). 81. Much as a modem estate planner attempts to avoid estate and inheritance taxes. 82. 2 BRACTON, supra note 42, at 70 (fol. 18b), 106 (fol. 32b), 118 (fol. 37b); 4 BRACTON, supra note 42, at 283 (fol. 412). 83. 2 BRACTON, supra note 42, at 70 (fol. 18b). 1985] JOINT TENANCY vinced of its validity.84 Further he felt that no private agreement could defeat jurisdiction of the royal courts.85 Otherwise he could discern no limitation, and the rule itself flourished in the mid-thirteenth century. Bracton is almost lighthearted about the variety of modes of conveyance current during the first third of the thirteenth century. He cites to a school-boy mnemonic of Roman law origin: ut marks a modus, si a condicio quia, a causa.8 6 The end of the century saw the end of observable experiment. As Bordwell suggests,87 the statute De Donis,88 in 1285, converted the form of the gift to the name of an action, eliminating the creative force of experimentation with conveyance and replacing it with a law of fixed formal categories.8 9 His reference is, of course, to the legally visible estates in land. Creative lawyers succeeded in obscuring the ongoing development in real property law from the legal historian by shifting their practice to the legally invisible use. 9° The early thirteenth century saw a variety of attempts launched by proprietors and their lawyer-conveyancers to eipaid newfound "ownership" principles to get around customary and feudal road- blocks: remnants of the rights of lords and heirs to control the propri- etor's dealing with his property. One perennial favorite, repeatedly deplored and forbidden, was to grant a tenement to a religious foundation which would in turn regrant to the donor or his designee. The interposition of a perpetual

84. Id. at 149 (fol. 49); 4 BRACTON, supra note 42, at 283 (fol. 412b). 85. 4 BRACTON, supra note 42, at 282-83 (fol. 412). There were other limitations. For example a private charter, even with royal confirmation, could not change the status of land from Gavelkind to Freehold. Y.B. 21 Ed. I 70, Rolls Series (1873). 86. 2 BRACTON, supra note 42, at 70 (fol. 19). Cf Digest 19.55.5 (Azo Sum Cod 6.44 No. 1-2) (Bracton closely parallels the Digest here, with some variation). 87. P. Bordwell, The Common-Law Scheme of Estates and the "English Justinian," 33 IOWA L. REV. 449, 458 (1947). 88. 18 Ed. I c.l (1290). 89. See also MILSOM, FOUNDATIONS, supra note 36, at 266. Where he too discerns the rigid "forms of action" displacing analysis of facts of the case. The parallel which is suggested here between the end of experimentation in conveyancing and forms of writs may be fortui- tous, but they suggest that the conservatism of the new breed of common lawyers was gaining the upper hand. 90. What transpired in the area of fiduciary law and the use between the early fourteenth century and the sixteenth century is probably irrecoverable. Chancery records do not begin until the sixteenth century, and by that time the whole area had become solidified. When uses were vested by statute in 1539, some visibility was restored, only to disappear again with the development of the use on the use. See infra note 227. 646 TEXAS TECH LAW REVIEW [Vol. 16:629 corporation between previous lord and tenant avoided all feudal incidents - the lord's new tenant never died. The 1217 edition of the Magna Carta9 forbade such alienation into mortmain, whose prohibition had to be repeated in 1279 in the Statute of Mortmain. 92 Neither statute succeeded in eliminating the practice because licenses were always available from the crown for a fee.9 3 Another practice current in the thirteenth century was for a tenant to surrender his tenement to the crown, for regrant under new conditions, or possibly for regrant to nominees. 94 Whether this conveyancing practice was to avoid incidents to intermediate lords is not clear. It could easily have been motivated by the swiftness of the pro- cedure and the resultant royal imprimatur on the transaction." How- ever, it is clear that others besides tenants in chief were using this method of conveyancing which was seen as valuable in creating marriage settlements. 96 The method dried up, however, in the fourteenth century after the Statute de Finibus Levatis of 1299. 9' Another ingenious method aimed at getting around the feudal incidents was a collusive feoffment. A Bractonian addicio addresses the problem as follows: A gift may be pretended (imaginaria)whether made to a minor or one of age, or feigned (colorata) between donor and curator, which may be ascertained in many ways, by what follows after and the use made [of the thing given], and from reasons outside the gift, 9as8 where the gift is held to defraud creditors, donees, or purchasers. The most egregious of these collusive "gifts" was aimed primarily at avoiding wardship. The tenant would lease to "feoffees" 99 the terms of the lease providing that payments had been satisfied up until a certain date, by coincidence the date on which the lessor's heir

91. MAGNA CARTA 1217 c.39, 43. See J. BEAN, The Decline of English Feudalism, 1215- 1540, 66 (Manchester 1968). 92. 7 Ed. 1 1279. 93. For a recent discussion, see BEAN, supra note 91, at 48-65. 94. Bailey, Thirteenth Century Conveyancing From the CharterRolls, 19 CAMBRIDGE L. J. 211. Bailey notes that by the second half of Henry III's reign the practice is obvious, but suggests that it was at least known earlier. An example is found in I Excerpta e Rotulis Finium, 158-59: A surrenders his lands to the crown, which regrants to B, for whose use the grant was made. Livery is made to B, the crown retaining a small fee, of course (20 shillings). 95. Bailey, supra note 94, at 216-17. 96. Id. at 216. 97. 27 Ed. I c.l (1299). 98. 2 BRACTON, supra note 42, at 95 (fol. 28). The addicio appears in the context of grants to multiple donees. 99. The practice is outlined in the Statute of Marlborough, 52 Hen. III c.6 (1267). The 1985] JOINT TENANCY 647

would reach majority. On the date of majority a huge payment, equal to or greater than the value of the land, would come due. The device was simple and all but foolproof. By means of a joint tenancy in the feoffees the "lessor" ensured that the property would remain intact in chosen hands until the majority of his heir, at which time the heir would enter as lessor, not heir."co The baronial opposition to Henry III complained of the practice, and a solution found its way into the Statute of Marlborough' which settled many of the issues of that conflict in 1267. The statute provided that the lord should have his 0 2 wardship provided he could prove collusion.1 But Bracton's concern over collusive or feigned "gifts" certainly covers more than the practice curbed by the Statute of Marlborough: the loss by lords of wardships. Bracton is also concerned with "pretended" grants to donees and "feigned" grants between donors and curators. Both may be seen primarily as methods of family settlement, incidentally achieving some protection from feudal incidents. The feigned grant between donor and curator was a grant of property to a custodian or bailiff to manage for the use of the donor or

lease to plural feoffees is both reminiscent of the concern of the Bractonian addicio and possibly anticipatory of the later plurality of feoffees to uses. Bean, in his Decline of English Feudalism, supra note 91, at 153, is of the opinion that this practice was only useful for paying debts and financing testamentary bequests, and he dis- counts its use in family settlement. It is difficult to follow his argument. The statute clearly contemplates avoidance of feudal dues, and the standard form of lease he posits: to A for 10 years, at the end of which time he owes XL to my heir (B), failing which to C seems to open the possibility of what Milsom calls creating an heir. Id. A testator's concern with debts and bequests, matters for the executor of his will, was of some contemporary concern. Thornton, writing in the years immediately prior and subsequent to 1290, expressed concern as to whether a lease should be considered real or personal property, subject to the laws of inheritance and therefore justiciable at common law, or to testamentary direction, justiciable in the ecclesiastical forum by the executor. THORNTON, supra, note 45, at fol. 17b, Bk I, Ch. 30. The executor was a late thirteenth century development. Bean, supra note 91, at 129. 100. 2 POLLOCK & MAITLAND, supra note 41, at 347-48. Since the practice is described in the statute as aimed at avoiding wardship, it may be assumed that the "lessor" was contem- plating proximate death. For the advantages of joint tenancy among multiple feoffees as pre- serving the res intact, see supra text accompanying note 36. The statute clearly envisions multiple feoffees, which at least raises the presumption of joint tenancy. 101. 52 Hen. III c.6 (1267). 102. The statute protected the feoffees by providing them an action against the heir in case the lease proved to be bona fide. This sensitive handling of an issue which exacerbated the baronage may reflect a perception, as early as 1267, that the "feoffees" might be holding the land to use, and a disinclination to upset already accepted practice. It is equally possible that it was felt that the modus of the grant should be honored, absent patent abuse. 648 TEXAS TECH LAW REVIEW [Vol. 16:629 his nominee."' Early examples of this practice have been viewed as forerunners of the medieval use, and indeed the language "ad opus" or "ad oeps" appears in some of the records."° Recent opinion seems to discredit this view, viewing in these early thirteenth-century curator- ships as attempts by travellers, chiefly crusaders, to provide for man- agement of their affairs during their absence. Thus curatorship is not viewed as an attempt to avoid incidents or make family settlements but rather as temporary guardianship.° 5 Whether there was a con- scious effort by donors to create a kind of trusteeship by these means is perhaps irrelevant. The language later applied in the medieval use was at hand and, as the placement of the Bractonian addicio shows, the ideas of "curatorship" and multiple donees or feoffees were some- how related in the writer's mind in the early thirteenth century.0 6 The archetypical "pretended" grant was an attempt to settle property prior to the demise of the tenant."0 7 Whether the chosen donee was the one who would normally inherit (the eldest son) or not (a younger son or a bastard), the tenant would grant his land to the "heir" of his choice. The problem, of course, was that if the donor did not completely divest himself of the attributes of seisin, the gift, under late twelfth and early thirteenth century law, was not valid. Examples appear in Bracton's Notebook, 0 transcribed from the early Plea Rolls, in which an attempt by a father to withdraw himself (se demittere) in favor of one of his issue failed because he had not sufficiently removed himself from control of the property. The cases often arose when the heir had ejected the donee and the donee had sued in novel disseisin. The defense would be that the donee had never been seised, the donor never having relinquished seisin. A do- nor's plea of "custodianship" on behalf of his donee was given strict

103. For a discussion of these custodial arrangements, see MILsoM, FRAMEWORK, supra note 1, at 148. 104. Examples of custodianship "ad opus" or "ad oeps" can be found in BRACTON'S NOTEBOOK (F.W. Maitland ed. 1887) No. 999 (1224), No. 1683 (1225), No. 1856 (1226), No. 754 (1233). See also SOMERSET RECORD SOCIETY, SOMERSET PLEAS 1897 (Healy ed.) No. 1491 (428) (mid-thirteenth century: 1254-1256); No. 1497 (38 Hen. III). For other custodial arrangements see 3 PLEAS BEFORE THE KING OR His JusTicEs, 83 Selden Society 126, 164 (1966) (Lady M. Stenton ed.). 105. BEAN, supra note 91, at 105, 110-11. 106. See supra note 91. 107. See 2 POLLOCK & MAITLAND, supra note 41, at 92; MILSoM, FRAMEWORK, supra note 1, at 147-53. Milsom uses the term "se demisit" to cover a number of such generic trans- fers, and generally denominates such practice as "creating an heir". Id. at 108-10. 108. BRAcToN's NoTEBOOK, supra note 104, at No. 780, No. 871, No. 1209, No. 1240, No. 1247, No. 1294. 19851 JOINT TENANCY

scrutiny, and usually failed if any indicia of seisin remained.109 Such "pretended" grants were risky if not perfected. They were perhaps even more risky if perfected. Once seisin was relinquished, the donor had no right against his donee and was precluded from attacking his title by the bar of warranty, or even of homage. 110 Me- dieval property holders, like their modem counterparts, were under- standably wary of releasing full control of their property. The heir, once created, might prove ungrateful. The motivation behind the practice of se demisit111 would vary. When the donee was the donor's eldest son, the motive was clearly to avoid feudal incidents. If the donor placed his eldest son in seisin, he was merely alienating by substitution, and there would be no feudal consequences upon his death because the heir was already in seisin. When the donee was some other child, younger son, marriageable daughter or bastard, the motive was clearly family settlement. All these practices have been referred to by Milsom as "creating an heir,"1'12 and the clearest case is where the tenant granted land to his bastard. The problem of the bastard child, or children, has left its stamp on our modem law in a number of ways, or rather the attempted solutions of the problem have. The problem inhered in the fact that bastards could neither inherit from their parents, nor could they inherit from their bastard siblings. A bastard wasfilius nulius (no-one's child) and could have no heirs except heirs of the body. His illegitimate brothers and sisters were strangers to him with respect to succession. 113 Under the medieval law of warranties this created an additional problem. A bastard having no heirs of the body could not effectively alienate property he had because on his death the purchaser would be left without a warrantor for his purchase. 14 Thus any grant to a bastard who died without heirs of the body would inevitably escheat to the donor or his heirs, or failing that, to the donor's lord, none of whom were bound to warrant the grant. The convey-

109. Id. See also 2 BRACTON, supra note 42, at 135-36 (fol. 43b). 110. 2 BRACTON, supra note 42, at 53 (fol. 12b). Bailey, Warranties of Land in the Thir- teenth Century [Part I], 8 CAMBRIDGE L. J. 82 (1944); Bailey, Warranties of Land in the Thirteenth Century [Part II], 9 CAMBRIDGE L. J. 274 (1947). 111. So denominated by MILsoM, FRAMEWORK, supra note 1, at 108-10. 112. Id. 113. 2 BRACTON, supra note 42, at 185 (fol. 63). 114. Bailey, Warrantiesof Land in the Thirteenth Century [Part I],8 CAMBRIDGE L.J. 82, 88 (1944). 650 TEXAS TECH LAW REVIEW [Vol. 16:629 ancers of the thirteenth century found a way out: the assign, who thus makes his first appearance in the common law. Maitland tells us that the term "assign" appears in grants soon after 1200, where there seems to be a failure of expected heirs joining in the grant.1" Bracton, writing in the first third of the thirteenth century, tells us that the term was discovered (inventus) for the benefit of bastards.' 6 The introduction of the assignee into a grant to a bastard and his heirs enabled the bastard without heirs of the body to alienate the property so acquired. His assignee assumed the obligation of warranty which would otherwise fall upon his heir. The conveyance would read: "to A and his heirs and assigns." This took care 7 of the warranty problem and gave the bastard a fully alienable title." But of course, once "discovered," the assign could not be confined to the area of grants to bastards; he appears broadly elsewhere." 8 The modus had begun to control the devolution of land in spite of feudal and common-law custom. It did not stop there. It will be remembered that Bracton was concerned with the ability of the modus to make lands devisable, apparently deciding against it.' 9 His concern was not idle, and his conclusion, if such it was, was not wrong. The devolution of landed property in thirteenth-century England was relatively fixed. Bracton tells us that only God can make an heir.'2° That is to say that the heir to a tenement was only determina- ble on the death of the tenant.' 2' Until the solution to the problem of the Casus Regis was worked out, there might be some uncertainty as to how the heir was to be determined, 22 but in any event the heir

115. 2 POLLOCK & MAITLAND, supra note 41, at 14 n.4 (giving no specific citation, but referring to "collections of charters"). 116. 2 BRACTON, supra note 42, at 75 (fol. 206). 117. Bailey, Warranties of Land in the Thirteenth Century [Part I], 8 CAMBRIDGE L.J. 82 (1944); Warrantiesof Land in the Thirteenth Century [Part II], 9 CAMBRIDGE L.J. 274 (1947). 118. See, e.g., the conveyancing precedents collected by Luffield Priory, Cambridge MSS Ee 1.1 (fol. 225), cited in F. Maitland, A Conveyancer of the Thirteenth Century, 7 LAW QUAR- TERLY REVIEW 63-69 (1891) for a number of examples which Maitland dates as late thirteenth century, especially numbers 2, 8, and 12. MILSOM, FRAMEWORK, supra note 1, at 104, calls the introduction of the assign another novel way of creating an heir. See 2 POLLOCK & MAITLAND, supra note 41, at 11-14. 119. 2 BRACTON, supra note 42, at 70 (fol. 18b); 149 (fol. 49); 4 BRACTON, supra note 42, at 282 (fol. 412b). See Thorne's introduction to 3 BRACTON, supra note 42, at xiii-xviii. 120. 2 BRACTON, supra note 42, at 184 (fol. 62b); GLANVILL, supra note 44, at vii, 1. 121. 2 BRACTON, supra 42, at 184 (fol. 62b). 122. This may be the origin of the discomfort exhibited by the Bractonian addicio, supra note 98, concerning attempts to create an heir prior to death, which are considered "feigned." 1985] JOINT TENANCY could not be determined until the tenant died. We have seen that tenants and their lawyers were working on eroding that principle, particularly through attempts to place a chosen "heir" in seisin prior to the tenant's death. But another inviting avenue presented itself in the early thirteenth century. By use of a modus, land could be made devisable. One could pick an heir without the problems attendant upon a se demisit, either defeasance because of incomplete abandonment of seisin, or financial pressure due to the ingratitude of donees. The process normally involved a grant and regrant. The tenant conveyed his property to a straw man who reconveyed to him and his heirs, assigns, and legatees. 23 Such a regrant gave the donor regrantee the most complete control over the devolution of his property, and allowed him to retain possession until he died. Several such charters are cited in cases copied into Bracton's Notebook from early thirteenth-century rolls and were upheld by the courts. 24 In Maitland's opinion, the movement to make land devisable in the thirteenth century was well on the way to becoming successful.125 Bean has followed a few cases which reached national attention and concludes that the crown decided to put a stop to it. 126 Apparently, Bracton's final conclusion that a modus could not render undevisable land devisable was correct. 127 By the late thirteenth century the attempt had foundered. As Maitland noted, by the time of Edward I "our law would have none of it."128 Before we turn to another important thirteenth-century experiment in conveyancing and the joint tenancy with right of survivorship, it may be useful to look at some lesser and more outrd experiments. These will serve to underline the freedom with which the conveyancers felt they could deal with the newly-perceived property rights. The first mode is an example of how a man might attempt to

For the Casus Regis, see 2 POLLOCK & MAITLAND, supra note 41, at 285; MILSOM, FRAME- WORK, supra note 1, at 124 n.4, 148-49, 171, 175-76. 123. 2 POLLOCK & MAITLAND, supra note 41, at 27 & n.I. 124. The language usually read "and to whom the donee wishes to leave [legare]." See Maitland, supra note 118, at 64; 4 BRACTON, supra note 42, at 28. 125. 2 POLLOCK & MAITLAND, supra note 41, at 27-28, 326-29. 126. BEAN, supra note 91, at 29-31. 127. 4 BRACTON, supra note 42, 282 (fol. 412b). 128. 2 POLLOCK & MAITLAND, supra note 41, at 28. TEXAS TECH LAW REVIEW [Vol. 16:629 provide for his sisters. 129 A final agreement enshrines the proposition that A grants land to B so that whichever of A's sisters survives to marriageable age shall have it as maritagium when she marries whichever of B's sons is then the eldest surviving son of B. This arrangement goes one step beyond the normal maritagium, in which land was given to the husband together with the woman. Here B may be considered as holding in a fiduciary capacity lands which will eventually go to two members of different classes: his sons and the donor's sisters. The second mode seems to indicate that not only a tenant could "create an heir," but that a presumptive heir could tinker with the principles of inheritance. Milsom cites a case in which an elder brother passes his right of inheritance to a younger brother. 3 ° In another case, two brothers enroll a fine in which they agree to assist each other in acquiring their separate inheritances and to halve both costs and proceeds. 13 1 Both examples suggest that strict primogeniture could be circumvented with the consent of the heir apparent. Finally, let us consider the case of Thomas de Weyland whose land transactions reached national attention. Thomas was a successful lawyer who rose in time to be Chief Justice of the Court of Com- mon Pleas. Caught in the judicial scandal prosecutions of 1289, he was convicted of felony and forced to abjure the realm. 32 His holdings thus ought to have been forfeited, but his wife, Margery, continued to hold them due to Thomas' foresight. Prior to his conviction, Thomas had entered into a series of transactions through strawmen which were enrolled as final concords in Common Pleas. 33 The habendum clause recited that the various parcels were to be held by Thomas, Margery his wife, and Richard their son. Remainders were established for Richard's issue, failing which to Thomas' male heirs, failing which to Thomas' right heirs. The feoffments were by substi-

129. 3 PLEAS BEFORE THE KING AND His JusTIcEs 151, No. 968, 83 Selden Society (1966). It also serves of course as an example of how landholders subordinated dynastic and property concerns to individual preference. 130. MILSoM, FRAMEWORK, supra note 1, at 110. 131. ROLL AND WRIT FILE OF THE BERKSHIRE EYRE 166-67, No. 392, 90 Selden Society (1973). Presumably they were half-brothers, each expecting inheritance from a different parent. 132. For this whole episode see BEAN, supra note 91, at 86. 133. 1 Rotuli Parliamentorum66-67. Calendar of Close Rolls 1288-1296, 93, 95-96, 106- 1985] JOINT TENANCY 653 tution, the tenants to hold directly of the chief lords of the various properties. On Thomas' disgrace and abjuration, his holdings were taken into the king's hands to satisfy the royal right to year and waste of a felon's lands. Margery and Richard, suing on a writ which they seem to have had invented for the purpose, 34 complained that the freehold lay with them. The lands were returned to them, pursuant to an agreement with the crown. At this point one of the chief lords, the Earl of Gloucester, son-in-law of the King and one of the great magnates of the realm, intervened complaining that if Thomas' manipula- tion1 35 of the law of the land were to stand, great prejudice to the crown and magnates of the realm would result: Since thus anyone proposing or wishing to commit a felony could have himself enfeoffed jointly with his wife ... with the intended purpose that his lands and tenements should remain to his wife after he commits his felony and abjures the realm, so that her felo-36 nious husband may be supported by the profits from these lands. 1 The Earl pointed out that the crown would thereby lose its year and waste, and the magnates their escheats. 37 He alleged that such a thing had never before been seen in the realm and suggested that even some judges who had been associated with Thomas felt that he had 38 perverted the law of the land.'

134. 1 Rotuli Parliamentorum67. The earl of Gloucester challenged the writ as "quod- dam Breve super sua suggestioneformatum absque Brevi originali etplacitablili." Id. (a certain writ created upon his suggestion without an original and pleadable writ). The Parliament Rolls, id., contain the entire record of the case. See also Spitzer, The Legal Careers of Gilbert of Thornton and Thomas de Weyland, 5 Journal of Legal History. (forthcoming Spring 1985). 135. This is my translation of what seems to be "perfurmavit"-which I take to be an alternate spelling for "performavit." If the Record Office typesetter substituted an "f" for an "s," the word may be "persurmavit"-which would seem to mean "sewed up"-perhaps in the sense of "basted" or "patched up." The thrust of the earl's complaint is clear: he felt Thomas was tampering with the law of England. (idem Thomas Legem terre perfurmavit). Id. See infra note 137. 136. The original complaint reads as follows: quia sic quilibetfeloniamfacere proponens seu Volens possetfacerefeoffareconiunctim Uxorem suam de terris et tenementis suis, tam de hereditate sua quam de perquisito, tali intentione, quod terre et tenementa sua, postquam feloniam fecerat et Regnum abjuraverat, uxori sue remanerentper consimilem finem in Curia levatum, ut ipsum virum suum felonem de proficuo earundem terrarum et tenementorum sustineret. I Rotuli Parliamentorumat 66. 137. Id. The record does not mention other feudal incidents, but we may assume that concern for them was a motivating factor in the earl's complaint. 138. "prefatus etiam Comes monstrauit Domino Regi quod quia quidam Justiciari,quifu- erunt socii predicti Thome, aliquos fecerunt intendentes quod idem Thomas Legem terre perfurmavit." Id. See supra note 134. 654 TEXAS TECH LAW REVIEW [Vol. 16:629

It was a case of first impression. The rolls were ordered searched back to the time of Pateshull.13 9 An impressive panel of legal experts were called to attend the Parliament at which the case was to be considered."4 The answer given in 1291 was clear: Margery and Rich- ard prevailed, Thomas' settlements could not be faulted. Within the year, Margery and Richard were suing other parcels out of the King's hands in various counties. 14 Thomas, though legally dead, retained effective control over his English lands. The modus of a grant by a strawman in joint tenancy had triumphed over what the earl of Gloucester claimed to be the law. 142 Did the grants to Thomas, Margery, and Richard create a classic joint feoffment with right of survivorship? There is no technical language in the habendum clause of the fine recorded in the Parliament Rolls: "to have and to hold to Thomas and Margery his wife and Richard their son." Margery and Richard in their unusual writ claimed to have been "coniunctim feoffati" in this case, and the Close Rolls show they claimed as joint feoffees in the subsequent cases.1 43 It may be that a grant to multiple donees, without more, was presumed to create a joint tenancy with right of survivorship as early as the 1270s. Yet there is no mention of accruer in the record of Weyland's settlements. A case appearing in the Yearbook of 1293, two years after Wey- land's case was considered by Parliament, supports the suggestion that a grant to two or more was presumptively joint and created a right of accruer.'44 Again the grant was by a strawman this time to a man and his wife "to hold to them and their heirs." The wife survived the husband, "by whose death all the right accured [acrot] to Maud [the wife] because they were joint [joint] feofees." The lord lost his wardship. The right of accruer, implicit in the multiple feoffment, defeated feudal right. These cases serve as examples of creative conveyancing in the late thirteenth century, and as an introduction to the primary focus of this article.

139. 1 Rotuli Parliamentorumat 66. 140. "tam Justiciariisui de utroque Banco, quam ceteri de regno suo, tam milites quam Servientes, in Legibus et Consuetudinibus Regni experti mandarentur . . . ad certiorandum ipsum Dominum Regem qualiter et quo modo in causa ista fuerit procedendum .... Id. 141. CALENDAR OF CLOSE ROLLS 1288-1296, 92, 95-96, 106-07. 142. For modus, see supra text accompanying notes 82-85. 143. CALENDAR OF CLOSE ROLLS 1288-1296, 93, 95-96, 106-07. 144. Y.B. 21-22 Ed. I 272-77 (1293), Rolls Series (1893). 1985] JOINT TENANCY 655

IV. JOINT TENANCY WITH RIGHT OF SURVIVORSHIP IN THE THIRTEENTH CENTURY In the thirteenth century, the right of accruer (ius accrescendi) was held to apply in two major areas: (1) among coparceners by inheritance,'45 and (2) among a variety of persons, including strangers, by purchase.146 It will be convenient to consider each area separately. It is here suggested that to the extent accruer applied to coparceners, it tended to be supplanted by right of inheritance (ius successionis). We have seen that by Littleton's time, in the fifteenth century, joint tenancy and the right of accruer were obtainable only by purchase.147 The record seems to indicate that a tendency in this direction was marked in the thirteenth century. 148 It is also here suggested that the Roman-Law language of the ius accrescendi was stretched to cover land acquired by purchase, either by analogy from coparcenary practice, or by direct application from Roman Law sources traceable to the Digest.'49

A. Accruer and Coparcenary The general term used to cover acquisition of property in the late twelfth and thirteenth centuries was adquisitio.15° We occasionally see accessio and, even less frequently adcretio, or accrescere (accruer).'51 Glanvill seems to have been the first to introduce "accruer"

145. See supra text accompanying notes 57-58. 146. See supra text accompanying notes 59-60, and infra text accompanying notes 168- 214. 147. See supra notes 29, 60. 148. See supra text accompanying notes 57-60. 149. See infra text accompanying notes 152-70. 150. The prime example is, of course, Bracton's section De Adquisitio Rerum Dominium, which extends over 90 folios or 240 pages of the Woodbine/Thome edition of Bracton. 2 BRACTON, supra note 42, at 42-282 (fols. 8b-98b). 151. The background of the verb accrescere as a mode of acquisition needs some exposi- tion. In classical Roman law many forms of acquisition of property were described in terms of accretion, adcretio. However, the exemplars of Roman law available to Bracton, such as Azo and Tancred, usually had accessio where classical writers had adcretio. Bracton follows his medieval authorities in using accessio in discussing the acquisition by increase to landed property by alluvion (2 BRACTON, supra note 42, at 44 (fols. 99-96). See Bracton and Azo, 8 Selden Society 104-09 (1894) (F.W. Maitland ed.)), and by the merging of inseparable substances. 2 BRACTON, supra note 42, at 45 (fol. 96). See also 8 Selden Society 112-15, 117-21 (1894). These would have been considered accrual in classical Roman law. Glanvill uses accrescere only with reference to coparceners. GLANVILL, supra note 44, vii, 3. Bracton uses it with reference to coparceners and to joint tenants by purchase. See infra note 155. TEXAS TECH LAW REVIEW [Vol. 16:629 into the language of the Common Law. This is in the context of coparcenary: "It should be noted, however, that if one of the brothers or sisters between whom an inheritance is divided dies without heir of his or her body, then his or her portion accrues (accrescat) to the remaining brothers or sisters." 5 2 From what source Glanvill derived the term cannot be traced, but the analogy between his use of accruer and the language of the Corpus Iuris with reference to lapsed inheritance is obvious.153 The narrow case contemplated by Glanvill is that in which coheirs have divided the property and one dies without heir of the body. His substitution of the ius accrescendi for the ius successionis seems unnecessary. The decedent's heirs, failing issue, would of course be his coparceners in either event. If, however, each coheir had separately done homage to the lord for the aliquot parcel, there might have been some point in relying on accruer rather than succession. There is support in the record for accruer operating between 54 coparceners, male and female, in the early thirteenth century. Bracton, writing before 1236, follows Glanvill in applying the ius accrescendi to coparceners.' 55 His handling of the topic is somewhat ambiguous. 5 6 It has been suggested that Bracton only meant accruer to apply prior to partition. 5 7 However, his remarks concerning hotchpot of divided inheritance seem to negate that theory.'58 It would seem that Bracton felt that joint tenancy and accruer were applicable to coheirs in general. However nowhere does he say that the rules of inheritance did not apply among coheirs. Britton, writing in the late thirteenth century, followed Bracton and went a step further, asserting that between coheirs, accruer operated exclusively and that the ius successionis was inapplicable.' 59 He seems to have been in error.

152. GLANVILL, supra note 44, at vii, 3. Glanvill's text is presumed to have been written between 1187 and 1189. Id. xi (Introduction). 153. See supra notes 62-67. 154. 3 BRACTON'S NOTEBOOK, supra note 104, at No. 959 (1224), No. 1708 (1226). The termiontfeffe is used with reference to coheiresses in Yearbook 2-3, Ed. 11 143-44 (1309), 19 Selden Society (1904). See also Select Civil Pleas, No. 85 (1201) (for another example). However, in the main, devolution of property amongst co-heirs seems to have been by right of succession rather than by accruer. See infra notes 159-63. 155. 2 BRACTON, supra note 42, at 226 (fol. 78); 3 BRACTON, supra note 42, at 272 (fol. 262b); id.at 306 (fol. 27b); 4 BRACTON, supra note 42 at 83 (fo 341b), 173 (fol. 374), 176 (fol. 375). 156. Id. He uses "descent" and "right" as well as accruer in these discussions. 157. 2 POLLOCK & MAITLAND, supra note 41, at 246-47. 158. See supra note 155. 159. 2 BRIrrTON, supra note 46, at 73 (and note "h"), 315 (and note "b"). 1985] JOINT TENANCY 657

In spite of the treatises, and a few early court rolls,"6 the records indicate that the normal devolution of property held by coparceners was by right of inheritance, ius successionis, rather than ius accrescendi. Milsom's recent essay on female inheritance in the late 161 twelfth and thirteenth centuries makes no reference to accruer. The entire discussion of parage and coparcenary turns on descent and inheritance, not on accruer. A case posed in Casus Placitorum, an instructional work for law students collected in the thirteenth century, presents what was probably the normal approach to the devolution of property among coheirs. 62 The relationship of the parties is most clearly presented schematically:

I I I I W (M) I (F) B (F) Joan (F) O.S.p. O.s.p. I H Margery Agnes William

At W's death both I & B were already dead. Margery and Joan partitioned the estate. Agnes brought a Writ of Right against Joan. The actual legal problem presented to the student concerns the legitimacy of H, and Joan's waiver of that defense in a prior action, which apparently acted as estoppel. For our purposes the count in the right is what is important: The right "should have descended" from W to I & B & J, and on I's death to B & J. There is no mention of accruer. The right "should descend" by normal canons of succession. There is not even a hint of a right of aecruer which would bar B's issue in favor of Joan. 163 The treatises, if not the records, seem to apply the right of ac-

160. See supra note 154. 161. Milsom, "Inheritance by Women in the Twelfth and Early Thirteenth Centuries," ON THE LAWS AND CUSTOMS OF ENGLAND, ESSAYS IN HONOR OF SAMUEL E. THORNE (Arnold, Green, Seelly and White, eds. Chapel Hill 1981). Maitland discerned some "doubt" as to whether inheritance or "accruer by survivorship" controlled among coheirs. 2 POLLOCK & MAITLAND, supra note 41, at 246. 162. CASUS PLACITORUM, 69 Selden Society 141 (1950). 163. It may be objected that since partition had been had, accruer no longer applied. But Bracton seems to say that partition had no effect upon accruer. 4 BRACTON, supra note 42, at 173 (fol. 374). It may further be objected that the only appropriate count in a Writ of Right TEXAS TECH LAW REVIEW [Vol. 16:629 cruer to coheirs, at least when a coheir died without heir of the body. '6 When a coheir died with issue, that issue seems to have taken his ancestor's share, both before and after partition.1 65 Whether this negates true accruer may remain a question. But at least it distinguishes co-tenancy by inheritance from later joint tenancy by feoffees. There is another characteristic which distinguished coparcenary from joint feoffment. Although joint feoffees were denied a right of unilateral partition, coparceners had that right. Maitland noted that fact as an anomaly.166 A law student's workbook, datable to the reign of Edward I, sharply distinguishes the two tenancies in this way: parceners can partition, joint tenants cannot, as this would be against the form of the gift.' 67 To the extent that coparceners were joint tenants subject to accruer at all, they were clearly distinguishable from joint feoffees. By the fourteenth century these distinguishing characteristics had come to mark two distincly different forms of tenancy. By 1314, the Yearbooks made clear distinctions between parceners, joint ten- 1 6 ius ants, and joint tenants in parcenary. At about the 6same9 time the accrescendi ceased to be applicable to coparceners .

B. Accruer and Joint Feoffees With the foregoing background, let us turn to joint feoffments during the thirteenth century. We shall see that the questions of partibility and devolution plagued the commentators. Until these questions were settled, the creation of a use through joint feoffment could not have become viable. We must start with Bracton who gives us the first extensive treat- was by descent, but had accruer applied, the writ itself might have been quashed. No hint of any such problem appears in the case. Another instructional manual, BREVIA PLACITATA, 66 Selden Society 71, 179 (1947), supports the view that a parcener's heir takes the place of the parcener upon death, a practice at odds with a true right of accruer. See also 4 BRACTON, supra note 42, at 176 (fol. 375). 164. GLANVILL, supra note 44, at vii, 3; 4 BRACTON, supra note 42, at 83 (fol. 341b). 165. 4 BRACTON, supra note 42, at 173 (fol. 374). Brevia Placitata, 66 Selden Society 71, 179 (1947); Casus Placitorum, 69 Selden Society, 141 (1950). 166. 2 POLLOCK AND MAITLAND, supra note 41, at 246 n.2. 167. CASUS PLACITORUM Xxxvi, 14, 69 Selden Society (1950). This may reflect the import of the Statute De Donis of 1285. A similar echo is expressed by Thornton at about the same time. See infra note 201. 168. 2 Eyre of Kent 84 (1313-1314), 27 Selden Society (1912); Y.B. 5 Ed. I 116 (1312), 33 Selden Society (1916); Y.B. 14-15 Ed. III 34 (1340) Rolls Series (1889). 169. See supra notes 159-63. 19851 JOINT TENANCY 659 ment of accruer, the ius accrescendi, in a treatise on English law. How Bracton came to his learning on the subject, whether directly from the Corpus Iuris or through Romanesque commentators, is beyond the scope of this paper. He handles the topic with some ambigu- ity, but his extended treatment suggests that the ius accrescendi was not unfamiliar to his early thirteenth-century lawyer contemporaries. Litigation in many of the areas touched by the ius accrescendi took place in ecclesiastical courts: marriage, testamentary matters, and bastardy. Perhaps the Romanesque ius accrescendi reached the common law through canon lawyers. However the ius accrescendi came to Bracton, it had its roots, as we have seen, in Roman Law.17 ° The foregoing discussion of accruer and coparcenary referred to the analogy between Roman testamentary heirs and common-law coheirs. 17 1 We turn now to another strain to be found in the Digest, one which is strongly echoed in Bracton. The Digest introduces us to the situation in which a usufruct, which could pertain to many forms of property, including land, is bequeathed to a woman "with her children."'' 72 If she loses her children she may yet retain the usufruct. If, on the other hand, she predeceases them they shall have the usufruct by the ius accrescendi. There are very strong parallels in Bracton to 173 this section. One of the situations to which Bracton most clearly applies the ius accrescendi is the case when one grants property to a concubine and her children, named or unnamed, born or unborn.' 74 The position of such an irregular family was analogous to that of a Roman woman and her children. Thirteenth-century English wives were protected by the rules of dower and tied to their husbands and properties by grants in maritagium. Their children were subject to the laws of inheritance, tempered by the flexibility of the modus.' 75 But a concu-

170. See supra text accompanying notes 62-78. The hue and cry after Bracton's sources has continued unabated over the years, only intensified by the publication of Woodbine's edition. Thorne's meticulous tracking down of citations in his edition and transalation promise to add fuel to the fire. Thorne's own pronouncements are anxiously awaited by the scholarly world. 171. See supra text accompanying notes 151-54. 172. Digest 7.2. 1. We are still in the area of testamentary bequests, but Bracton's treatise moves here out of wills and inheritance to grants. 173. 2 BRACTON, supra note 42, at 54 (fol. 13); id. at 76 (fol. 21); id. at 95 (fol. 28); 3 BRACrON, supra note 42, at 271-72 (fol. 262); 4 BRACrON, supra note 42, at 176 (fol. 375). 174. Id. 175. See supra note 74 and infra note 183. TEXAS TECH LAW REVIEW [Vol. 16:629 bine had no rights in the estate of her man, 176 and her bastard children could neither inherit from their father, nor could they inherit from each other. 177 A bastard could have no heir except heirs of his body. As far as succession was concerned, his brothers and sisters were strangers to him.1 7 Furthermore, the alienee of a bastard could not hold the alienated property with security, because should lineal heirs of the bastard fail, the purchaser would be left without a warrantor for his purchase. 179 Any grant to a bastard who died without heirs of the body must inevitably escheat to the donor or his right heirs. Thus a mere inter vivos grant to a bastard child would leave all other members of the irregular family, mother and siblings, in a precarious position.1 0 The Roman-law testamentary grant of a usufruct to a "woman and her children" provided a model by which to circumvent the problem. The situation was only one among many1 8' which elic- ited novel remedies from thirteenth-century lawyer-conveyancers. Bracton discusses the solution to the problem of illegitimates several times, most extensively in that portion of his treatise where he discusses who may be granted property: [A grant may be made] to a bastard as well as to one who is legitimate, to him and his heirs and assigns. Also not only to one but to several, to all together and at the same time, or successively, by the modus of the gift, . . . [and to those to be born as well as those born, for] one may make a gift to his concubine or another's "to the concubine and her children, of her born and to be born, and their heirs or assigns." Since all were enfeoffed together and hold in common (in commune) the children do not succeed one the other, and if one of them dies without heirs his portion will accrue by the ius accrescendi to the survivors and their heirs, from several such to one, and will not revert to the donor as long as one survi-

176. Thornton tells us that a priest's concubine might recover dower on the death of her paramour, but the case seems to be one in which the husband took orders after a canonical marriage, and may thus not be controlling in more usual cases. Thornton, Harvard Law Li- brary Ms. 77, fol. 89-89b, Lincoln's Inn. Ms. Hale 135, fol. 109. For the case see G. Wood- bine, 25 LAW QUARTERLY REVIEW 48-51 (1909). 177. 2 BRACTON, supra note 42, at 51 (fol. 1 lb); id. at 95 (fol. 28). 178. Id. See supra text accompanying notes 113-15. 179. Bailey, Warranties of Land in the Thirteenth Century, supra note 110, and text accompanying note 116; it is in this connection that Bracton declares the "assign" to have been "invented" for bastards. See supra note 116 and accompanying text. 180. For example, MILSOM, FRAMEWORK, supra note 1, at 151, posits the quandary of a father of two bastards. He se demisit, (see supra text accompanying note 111), to place one in, but is unable to provide for the other by this means. 181. See supra notes 79-144. 1985] JOINT TENANCY

vor remains or one has heirs. But if all die without heirs, the whole will revert to the donor . . . .If the mother, the concubine, who was in seisin in the name of all her children, dies first [and they are prevented from entering before they acquire seisin] the assize of novel disseisin lies for them in the name of their mother, whether they were in seisin before or not, not by the assize of mort d'ancestor, because she was in seisin in their name as procuratrix though they were never personally in seisin, since possession was acquired for them by their mother . . . or they may recover by a special writ drawn according to the modus of the gift .... "' A great many threads are drawn together in this passage. The role of the modus, or private arrangement, in settling property, the establishment by means of the modus of the right of assignment and the ius accrescendi, the operaiton of the ius to postpone the rights of reversioners and heirs, and, perhaps most astonishing, the creation of the one exception known to the common law where one who was 1 3 never himself in seisin could bring the assize of novel disseisin. 1 If a private covenant could bind and bend the law to this extent, the use of joint tenure to bypass feudal incidents, create trusts, and even trench upon the inviolable rule of nondevisability of real property, pales into insignificance. The device of joint tenure, together with its feature of the ius accrescendi, seems at first glance to answer the problems of the illegitimate family admirably. The group is provided by the ius accrescendi with what it could not have by the ius successionis: assurance that the rights of its individual members would accrue to the survivors. But an expedient tailored to the life interest of a Roman usufructuary created anomalies when applied to a potentially heritable interest. What of the bodily heirs, if any, of the illegitimate joint tenants? Bracton's contemplated grant is to "the concubine and her children . . . and their heirs and assigns." ' 4 Should some or all have heirs of the body,

182. 2 BRACTON, supra note 42, at 54 (fol. 13). The translation given here is Professor Thorne's. Professor Sutherland, who has kindly read a version of this article in typescript, has some difficulty with that portion of the quote which allows the children to bring the assize of novel disseisin to the name of their mother. He suggests that to construe "ex nomine matris" as "because of the character of their mother's seisin" (i.e., seised in their name as procuratrix as well as in her own name) would be closer to Bracton's meaning. It is difficult to quarrel with the leading authority on the assize of novel disseisin. See also 2 BRACTON, supra note 42, at 124 (fol. 39b) in which Bracton insists that a procurator is not in seisin so that the assize will lie for the beneficiary. For curatorship, see supra note 115. 183. Sutherland's emendation of Thorne's translation may minimize the anomalous force of providing novel disseisin to claimants who never had seisin themselves. 184. 2 BRACTON, supra note 42, at 76 (fol. 21). TEXAS TECH LAW REVIEW [Vol. 16:629 what effect would the ius accrescendi have on their rights to the property? Bracton's handling of this problem is somewhat uncertain and inconsistent. In one place he says that if two bastard brothers are enfeoffed in commune and one dies without heirs of the body his brother shall succeed, not as heir but by the ius accrescendi.1 5 How- if they both have heirs, "let them all hold together in commune ever 18 6 unless they wish to proceed to division or partition. This provides no clear answer to the problem posed. The position of the bodily heir of a predeceasing brother is left undiscussed, and the meaning of "let them all hold together in commune" is obscure. Is "all" meant to include all joint tenants, all tenants and heirs, or only all heirs? If tenants and heirs, or heirs only, when are "all" to begin holding together, as each feoffee with heir dies or on the death of the final surviving joint tenant? Does in commune applied to the original joint feoffees mean the same thing as in commune in which "all" will hold? There are suggestive clues from various sources, but of little decisive weight. Bracton may have contemplated the sort of situation which arose among coheirs when, prior to partition of an inheritance by the coparceners, one of them died: in this situation, his heirs and his brothers held in common. 8 ' Such an interpretation assumes "all" to cover feoffees and heirs who would begin to hold together in commune as the individual feoffees with heirs died. That this may have been Bracton's intended meaning suggests that the application of accruer among coheirs was transferred by analogy to accruer among joint feoffees. If coparceners were seen as holding jointly prior to partition, the system of inheritance appropriate to tenure in coparcenary could easily be seen as applicable to other joint tenures. Alternatively, Bracton may have contemplated a result closer to that presented by Littleton in the fifteenth century. 88 When a grant was made to A and B and the heirs of their bodies, the heirs' rights were postponed until all joint tenants had died, after which all heirs born to the joint tenants held in common rather than jointly. Under

185. Id. 186. Id. 187. Broomfield v. Broomfield, 2 Eyre of Kent 87 (1313-1314), 29 Selden Society (1913). See also the discussion of accruer and coheirs supra notes 145-69. The "special writ drawn according to the modus" is reminiscent of Margery's writ in the Weyland case, supra note 134. 188. LITLETON, supra note 27, § 283. Note that the grant is to A & B and the heirs of their bodies which under Littleton's scheme created joint life tenancy with several inheritance in tail. 19851 JOINT TENANCY

this interpretation, "all" means all heirs, the inception of their holding together postponed until the surviving feoffee died. Bracton's language surely admits of such an interpretation, but it is dangerous to assume that evidence from a later period is conclusive as to the earlier. In Littleton's scheme, the donor got the reversion of the aliquot share of the joint feoffee dying without an heir. Bracton does not here consider the rights of the donor, but elsewhere he states that there shall be no reversion to the donor "as long as one survivor remains or ' 8 9 one has heirs."' Possibly Bracton viewed a joint grant to bastards and their heirs as a subspecies of conditional gifts.' 90 In his day a grant to A and the heirs of his body was considered a grant in fee simple conditioned upon the birth of such heirs. The fee simple vested upon the fulfillment of the condition and the property was thereupon alienable by A.' 9' Since bastards could only have heirs of the body, a joint grant to several bastards and their heirs could be viewed as vesting the fee simple upon the birth of heirs to all. Upon the fulfillment of such condition, the property became divisible and alienable. That Bracton may have felt this to be the case is supported by his statement that if both bastard brothers had heirs, they might "wish to proceed to division or partition," '92 severance rendering the property alienable by the parties. This interpretation rests on construing "all" as covering the joint tenants only, and suggests that the vesting of the fee upon fulfillment of condition altered the nature of the tenancy from joint to common. This reading of Bracton's meaning does not meet the problem of the position of the bodily heirs of a predeceasing illegitimate when not all the jointly enfeoffed bastards had issue. For example, joint grant is made to A, B, and C and the heirs of their bodies. If C dies leaving two children, X and Y, A and B surviving childless, might not the unilateral fulfillment of the condition by C have vested his fee? Even without partition A and B might then hold two-thirds of the whole jointly, and C's heirs the remaining one-third in common with them

189. 2 BRACrON, supra note 42, at 54 (fol. 13). 190. This suggestion is reinforced by the fact that a bastard's heirs were ipsofacto heirs of the body, (see supra note 113), and that gifts to A and the heirs of his body were the archetypical conditional gifts. However the above-cited quote from Bracton, (supra text accompanying note 184), envisions a gift to bastards, singular or plural, and their heirs and assigns. 191. 2 BRACTON, supra note 42, at 68 (fol. 18). This of course was changed by De Donis in 1285. 192. Id. at 76 (fol. 21); 96 (fol. 28b). TEXAS TECH LAW REVIEW [Vol. 16:629

and with each other. This solution would construe "all" to include foeffees and heirs and "in commune" as covering both joint and common tenure indiscriminately. Further problems arise, however, as the scenario is projected over time. If A died childless the ius accrescendi would have vested his rights in B as survivor, B holding two-thirds in his own right in common with X and Y. When B died childless what would the rights of X and Y and the donor be? All the alternative interpretations of the passage cited are attrac- tive. No one interpretation seems necessarily the correct view. Bracton tackled the issue of the rights of heirs of joint tenants elsewhere, and came to the conclusion that "the common portion accrues by the ius accrescendi to the survivors, from person down to the last survivor, and when the last one dies then for the first time the assize of mort d'ancestor lies for the heirs, thus recourse is to be had to the last seisin. "193' The meaning of the last phrase is, to say the least, ambiguous. This author takes it to mean that the heir who sues must count, or plead, the seisin of the survivor, the last seisin. This interpretation is supported by Bracton's succeeding remarks concerning the problem of one who sues in the name of an ancestor who prede- ceased the ultimate survivor: he would not be received in mort d'ancestor.9' 4 However, Fleta, editing this passage in the late thirteenth century, seems to interpret it to mean that recourse should be had to the last seisin of whoever died first.m95 This is reminiscent of the first alternative discussed above, 96 in which the death of one coparcener with an heir changed the nature of the tenancy. If Fleta's view is correct, each heir of several joint tenants could bring mort d'ancestor, counting on his own ancestor's seisin. 197 Thornton, editing this same passage almost contemporaneously with Fleta, is ambiguous. He follows Bracton and then adds that "the assize of mort d'ancestor lies in the persons of the heirs of the last seised. And the heirs of the prior decedents shall recover nothing." 19 This seems directly counter to Fleta's view, and Thornton is uncom- fortable with his own reading of Bracton's meaning. He proceeds:

193. 3 BRACTON, supra note 42, at 272 (fol. 262b). 194. Id. 195. 3 FLETA 8, 89 Selden Society (1972). 196. Supra text accompanying note 187. 197. This has some resemblance also to Littleton's scheme of joint life tenancy with several inheritance in tail. Supra note 188. 198. THORNTON, supra note 45, at fol. 82v (see also THORNTON at fol. 18). 1985] JOINT TENANCY

Others say [Thornton's usual signal for the injection of a personal opinion] that the heir of one of the joint tenants (coniunctifeoffat) ought to succeed to his ancestor's portion, since the will of the donor ought to be interpreted thus: not that the heir of any one of his feoffees shall succeed to the whole, but that the heirs of his feoffees should each succeed to their proportionate share. 99 The basic reason, he says, is that "if the feoffees were to divide the purchased land in their lifetime, their heirs would succeed them. Yet such division attributes no right to the feoffee [or his heirs] which right is only attributed by the grant. '""'2 Thornton's point is eminently reasonable if we assume that this discussion is confined to the sort of family settlement in favor of the issue of irregular unions suggested by the context of Bracton's original remarks. And joint feoffment tends to appear most persistently in the context of concubines and bastards in Bracton and all his late abridg- ers. 20 The motivation for such a grant would arise from feelings of responsibility toward the irregular family, whether on the part of the paramour, the concubine's relative, or whoever. That the donor's intent would have been that the bodily heirs only of the survivor among a number of illegitimate children should succeed to the whole property seems unlikely. Dynastic considerations of patrimony, family name, or performance of feudal dues seem irrelevant in connection with such a grant. Far more likely is Thornton's assumption that the donor meant to establish an inheritance for the whole group, confined to the bodily heirs of the original feoffees. Bracton did not necessarily intend his remarks concerning succession to joint tenure to apply only to this narrowly-defined set of circumstances. He discusses grants to multiple donees and their heirs under three headings:2 °2 to legitimate children connected by ties of blood, to bastards, and to strangers, under which latter rubric he also discusses gifts to husband and wife jointly. When the joint tenants are connected by blood, as in the case of brothers or sisters, the ius accrescendi does not apply, because if one of them dies without an heir of the body his cotenants inherit by the ius successioni. 20 3 Succession

199. Id. 200. Id. 201. 3 BRACTON, supra note 42, at 272 (fol. 262b.); 3 Fleta 8, 89 Selden Society (1972); THORNTON, supra note 45. 202. 2 BRAcroN, supra note 42, at 94-96 (fols. 28-28b). 203. Id. at 95 (fol. 28). Why Bracton so clearly applies the ius successionis to blood-related joint feoffees and not to blood-related coparceners must remain a mystery. TEXAS TECH LAW REVIEW [Vol. 16:629 in the case of illegitimate joint tenants we have already considered. The ius accrescendi does apply to jointly enfeoffed strangers, but Bracton sees no problem of succession. He treats such a grant as creating a conditional gift. If all have heirs the condition is fulfilled, partition should be made, and the donees will hold severally in fee simple unless they decide to continue to hold together.z° If one dies without heirs, his share wil accrue to his cotenant whose heirs will succeed to the whole. If there are no heirs, the property will revert to the donor. Precisely the same questions are left hanging here as with bastard joint tenants: what of the heirs of predeceasing joint tenants?z°5 The basic question, of course, is whether the condition is viewed as affect- ing all the joint tenants together, or can be individually fulfilled by the several joint tenants. Bracton considers joint grants to husband and wife as a sub-cate- 2 6 gory of joint grants to strangers. 0 He first makes clear that he does not wish to consider, under this rubric, a variety of grants to husband and wife, including maritagium, but only a pure feoffment to husband and wife and their heirs. Such a gift, as a subclass of joint gifts to strangers, Bracton considered a conditional gift. 27 Normally of course the birth of an heir to one of the parties constituted the birth of an heir to the other. Upon such birth the condition was fulfilled and the fee vested. However, if husband and wife died without issue, Bracton says the succession would depend upon the terms of the grant. If heirs of the body were specified, the property would revert to the donor. If the type of heirs were not specified heirs generally could inherit, preference being given to any existing common heir, 20 8 failing which "their separate heirs [so it seems] are admitted. How this was interpreted during the thirteenth century may be seen from a hypothetical case posed in Casus Placitorum, a collection of instructional law materials datable between 1231 and 1278.2o Hus- band and wife purchase land together (ensemble) to themselves and their heirs. Husband has a brother; wife has a sister. Husband and wife have no heirs arising out of their union, and husband predeceases

204. 2 BRACTON, supra note 42, at 95 (fol. 28). This gives additional force to the third alternate interpretation of Bracton's treatment of grants to bastards jointly, supra notes 187-89. 205. See supra notes 186-94. 206. 2 BRACTON, supra note 42, at 96 (fol. 28b). 207. Supra text accompanying notes 201-02. 208. 2 BRACTON, supra note 42, at 96 (fol. 28b). 209. CAsus PLACrrORUM 39/162, 69 Selden Society (1950). For the text see supra notes 51, 55-56. 1985] JOINT TENANCY wife. Who inherits from the wife upon her death? The answer: the wife's sister. This result seems consistent with Bracton's view, expressed above, that mort d'ancestor would lie only for the heir of the last seised joint bastard tenant.21° It is, moreover, consistent with fifteenth and sixteenth-century practice involving joint feoffees to 2 1 uses. ' But, as we have seen, late thirteenth-century treatises show some concern with this result.21 2 Thornton's treatment is perhaps the ful- lest. His consideration of grants to multiple donees and their heirs lumps together all three of Bracton's distinct treatments. Whether he did this because the practice of joint feoffment had become sufficiently familiar to be considered in a general way or, on account of editorial policy, is impossible to say. He says, conflating three separate passages of Bracton, and interpreting them: Grants may be made to several bastards as to legitimate strangers who are not connected one to the other, and to two or more connected by ties of blood, to have and to hold to them and their heirs jointly (in communi). In which case some say that when any one of them dies whether or not he has heirs of his body the whole ought to remain to the survivor or survivors on account of the unity of right and the right of accruer. [He then adds his own observations.] Others, however, feel otherwise that where the decedent has heirs of the body that the decedent's portion ought to descend to his heirs, even though partition was not made in the lifetime of the feoffees . . . . However, in the case where one joint tenant dies without heir, the whole portion of the decedent ought to revert to the grantor, and the feoffor ought to take the place of the heir, since the will of the donor is more that all the feoffees and their heirs should have their portions than that one of them and his heirs should obtain the whole.2" 3 Thornton insisted that the intent of the donor should control the

210. 3 BRACTON, supra note 42, at 272 (fol. 262b). Why Bracton distinguished, if indeed he did, between jointly-enfeoffed strangers on the one hand, and jointly-enfeoffed bastards and husband and wife teams on the other, is far from clear. It is suggested below that this distinction did not, in fact, exist. 211. See supra note 32 and infra text accompanying note 212. 212. See supra notes 194-200. 213. THORNTON, supra note 45, at fol. 18. He is conflating material found in 2 BRACTON, supra note 42, at 94-96 (fols. 28-28b). The elipses in the Thornton passage cover discussion of the cases in which partition could be had among joint tenants, but there is no suggestion that the lord's right to reversion of a deceased joint tenants portion applied only after partition. In fact, Thornton again insists that partition has no effect upon the right. THORNTON, supra note 45, at fol. 82v (see also id. at fol. 668 TEXAS TECH LAW REVIEW [Vol. 16:629 succession to jointly held property, not the abstract rules of the ius acerescendi. The intention of the donor as an element in the construction of the modus or conventio which might defeat the law was a very lively issue in Thornton's day, the era which gave English law the statutes of Quia Emptoreszt 4 and De Donis Condicionalibus.215 Writs offormedon were issuing even before De Donis, and both Bracton and Thornton refer to special brevia formata which could be drawn to initiate action to enforce the terms of a modus.21 6 Thornton suggests that the heirs of joint tenants could resort to some such writ in order to recover their inheritance in accordance with the intentions of the donor." 7 Nor is Thornton's concern with the will of the donor merely a reflection of contemporary post-De Donis concern. Bracton's treatise itself advocates that attention be paid to the donor's intent in framing his modus. In discussing gifts subject to such a modus Bracton cites the Roman law maxim: "[n]ichil tam conveniens est naturaliequitati quam voluntatem domini volentis rem suam in alium transferre ratam haberi." [Nothing is more in accord with natural

18). Britton, in a parallel passage, says that reversion should occur only after partition. 2 BRiTTON, supra note 46, at 65-81. The entire cite from Thornton is as follows: Item fieri poterit donacio pluribus bastardissicut legitimis extraneis personis, qui sese non contingunt. Et duobus velpluribusparentelaconiunctis habenda et tenenda sibi et heredibus suis in CommunL Et quo casu quidam dicunt quod cum aliquis eoruma sive heredes de corpore suo habuerit sive non, quod totum remanere debet superstiti vel superstitibuspropter iuris unionem et ius accrescendi bAliic aliter senciunt quod ubi descedens heredes de corpore suo habuerit quod pars descendentis descendere debeat heredibus suis, licet particiofacta non fuerit in vita feoffatorum cum particio inter feoffatos nichil operatur quo ad ius veld successionem, immo ipsa donacio et forma donacioni Et de facili partiripotest interparticipes feoffatos et eorum heredes, ete per ius et racionem dividi potest. In casu autem ubi unus particepsfeoffatus sine herede decesserint, onmino pars descedentis ad donatorem debet reverti, et feoffator loco heredis debet accipi cum voluntas donatoris pociusf qoud omnes feoffati [f.18b] et eorum heredes optinerent proparte sua, quam unus eorum tantum et eius heredes to- turn optinerent, cum particio sive divisio ut supra dicitur nichil iuris attribuit, ut supra.g Thornton, Harvard Law Library Ms.77. a. obierit - probably needs to be inserted here. b-g. Thornton's addition to Bracton. c. autem (add Lincoln's Inn Ms. Hale 135). d. ad (Id.). e. quod (Id.). f. fuit (Id.). 214. Statutum Quia Emptores, 18 Ed. I (1290) 215. Statute of Westminister I, 13 Ed. I c.l (1285). 216. See supra note 133. 217. THORNTON, supra note 45, fol. 82. 1985] JOINT TENANCY equity than to make effective the will of an owner wishing to transfer his property to another].2"' This bias in favor of protecting the donor's intent culminated in the statute De Donis, and the effect of that statute may have produced Thornton's discomfort with the ius accrescendi as controlling succession to joint tenures. De Donis was framed precisely to get around the construction placed in Bracton's day on a gift to A and the heirs of his body. The framers of the statute sought the end of the practice of considering such a grant as conditional upon the birth of heirs, the fulfillment of such condition vesting the fee simple and rendering the property alienable.2"9 The pre-De Donis construction may have acted to render joint tenure partible upon the birth of heirs to all joint tenants.220 The statute put an end to this, and substituted a system by which succession to property was to be controlled by the terms of the grant, a system which gave us the entail and all its adhering problems. De Donis may, consequently, have been one source of Thornton's disquietude over the Bractonian formula that mort d'ancestor would only lie for the heir of the last surviving joint feoffee. 221 An under- standable concern with the bastards in whose favor a joint tenancy was created may surely have been another.222 The late thirteenth-century treatises all seem to favor a system in which each individual tenant and his particular heirs could claim his portion, either before or after partition. It is possible that the position of joint feoffees was moving closer to that of jointly-holding coparceners: partibility and several inheritance seemed possible for both in the late thirteenth century. But to the extent that such a development was under way in the late thirteenth century, it had been turned aside by the end of the fourteenth century.22 3

218. 2 BRACTON, supra note 42, at 67 (fol. 18). Institutes 2.1.40; Digest 41.1.9.3. 219. Statute of Westminister II, 13 Ed. I c.l (1285). 220. Supra note 204. 221. 3 BRACTON, supra note 42, at 272 (fol. 262b). Supra note 198-200. 222. Supra text following note 201. 223. A. W. SIMPSON, INTRODUCTION TO THE HISTORY OF THE LAND LAW 212 (2d ed. 1979), says the issue was settled in favor of the heir of the last survivor between 1450 and 1483. Bean, supra note 91, at 153, following 3 HOLDSWORTH, supra, note 41, says that joint tenancy was recognized by the mid-fourteenth century [and surely we can push that back a century]. He further says that by this time it was the presumptive tenure created by a grant to "several, their heirs and assigns" and that the heir of the last survivor took. He cites as authority for this a sixteenth-century document found in 7 Letters and Papers of Henry VIII, supra note 82, at 384, No. 1099. In the fifteenth century Littleton clearly states that a grant to two or more created a joint fee simple which ultimately vested in the heir of the last survivor. See supra notes 33-34. 670 TEXAS TECH LAW REVIEW [Vol. 16:629

Exactly when and how this came about is not precisely known at this time; but the middle of the fourteenth century seems to be the best present guess as to when.224 As to why the result was as it was, it would seem that inventive lawyers had found a new way around the problems of family settlements. Blocked by the developments which decreed a modus could not make land devisable by testament,2 25 and constrained under the Edwardian statutes henceforward to conveyances in fee simple and fee tail, 26 they nevertheless found a way out. That way was, of course, the feoffment to use.

V. JOINT TENANCY AND THE MEDIEVAL USE The early history of the use is still necessarily obscure.227 The classic form was a feoffment, usually to multiple feoffees, on the face of which no trace of the fiduciary role of the feoffees appears. The instructions were ancillary and oral, and enforcement of the terms was beyond the jurisdiction of the common-law courts. We have some ecclesiastical court records,228 but the systematic records of Chancery, where jurisdiction came to lie, do not begin until the sixteenth century. 229 As far as the record is concerned, the whole process of early development will probably remain invisible.2 3° But it is known that by the mid-fourteenth century, within fifty years of Thornton's death, the device of joint tenancy creating a trust to exe- cute the donor's last will was firmly entrenched. 23' The higher nobil-

224. Supra note 225. 225. See supra notes 87-90 and accompanying text. 226. Id. 227. The most important recent works are J. BAKER, SPELLMAN'S REPORTS, Vol. 11 (94 Selden Society, 1978) 192-203; BEAN, supra note 91, at 1215-1540 (1968) (ch. 3); and Helm- holz, The Earls Enforcement of Uses, 79 COLUM. L. REV., 1503-13 (1979). See also Barton, "The Medieval Use," 81 LAW QUARTERLY REVIEW 567-77 (1955). 228. Helmholz, supra note 227, at 1503-13. 229. Henderson, "Relief From Bonds in the English Chancery: Mid Sixteenth Century," 18 AMERICAN JOURNAL OF LEGAL HISTORY 298 (1974). Records of cases do exist, see Har- greaves, "Equity on the Latin Side of Chancery," 58 LAW QUARTERLY REVIEW 487-89 (1952). The earliest known case seems to be from 1409. 230. Possibly a study of thirteenth and fourteenth century conveyances to multiple donees might yield suggestive data, but the path would be frought with danger. Bean seems to have contemplated such a course but did not pursue it. Bean, supra note 91, at 155, concerning such feoffments gleam from 14th and 15th century Patent Rolls. A search of the numerous feet of fines which have been published might prove rewarding. Problems would inhere in trying to sort out which multiple feoffees could be considered feoffees to uses, and which repre- sented creditors or bona fide alienees. 231. See G. HOLMES, The Estates of the Higher Nobility in XIVth Century England 41-58 (1957). Bean, supra note 91, at ch. 3, suggests that the movement originated with the lower 1985] JOINT TENANCY ity was evading feudal incidents due the crown, with the crown's full cooperation. In 1376, upon the death of Richard, Earl of Arundel, "no Inquisition Post Mortem survives for the Earl, for he held nothing in fee simple. The heirs did not need to claim the inheritance in 232 the ordinary way, because it was in their hands already. The connection between joint tenancy with right of survivorship and the medieval use, actually and logically, has already been re- marked.233 What made it the viable vehicle for the use was impartibility and the unique descent to the heir of the last survivor.234 Unlike joint tenancy by inheritance, coparcenary, joint tenancy by purchase could only be partitioned by agreement of all the cotenants. 235 Bean suggests that the reason joint feoffees were chosen for the use was that the multiple feoffees would act as watchdogs one on the other: it would be difficult for any one feoffee to get away with anything.236 But without impartibility this might not have been sufficiently protec- tive of the res. Had joint feoffees had the right to partition ex parte, the integrity of the res might have been jeopardized. The joint feoffment to use was safe as long as one cotenant remained to resist partition. The ultimate resolution of the question which troubled the late thirteenth-century commentators: who would inherit from the feoffees, needed solution before joint tenancy could become an appropriate vehicle for fiduciary holding. The tenancy provided an unbreakable corporation only so long as all the original feoffees survived. If, on the death of the last survivor, all the heirs, creditors, and executors of all the feofees could lay claim to the res, the intent of the settlor could well be thwarted. Thornton, of course, argues that the intent of the donor should be effectuated,237 thus all heirs of all donees should share in the ultimate disposal of the property. Fleta seems to con- cur.238 Both were writing in the period immediately following De Do- nis. Their formulations contradict both Bracton and later practice.239 nobility and was only later taken up by the higher nobility. Holmes' work shows that the higher nobility were not behind-hand in taking advantage of the new development, and operated with the full cooperation of the crown. Id. 232. Holmes, supra note 231, at 50. 233. See supra note 36. 234. See supra note 91, at 223. 235. See supra notes 167-69. 236. The unique final heir was an easier target for litigation than multiple heirs. 237. See supra at note 213. 238. See supra notes 196-98. 239. See supra notes 187-88. 672 TEXAS TECH LAW REVIEW [Vol. 16:629

How the victory of the heir of the last surviving joint tenant came about we cannot, in the state of the record, tell. It may be that the implied intent of the donor, the charge which he placed upon his feoffees, was recognized in fora outside the common law courts; in ecclesiastical courts or by the Chancellor. If that were the case, De Donis carried weight outside the Common Law courts. However it came about, the indecision evidenced by the commentators did not long survive. Within fifty years the use, together with joint tenancy, had circumvented the doubts expressed by Fleta and Thornton. Iron- ically, what Bracton and the common law decided a modus could not do, make land devisable by testament, the humble joint tenancy did. Discerned by Glanvill in heritable coparcenary, expanded to ease the problems of illegitimacy, and thence to other areas, the ius accrescendi came to govern the way vast areas of English land was held. In spite of courts and legislators and lawyers, it exists today in the United States with illogical persistence. 2" Why? The answer in both milieux must be the same: the tenancy, and the right of survivorship, was and is useful in fulfilling the wishes of property owners. The lawyers who have molded the institution have been successful in responding to the wishes of their clients. In so doing they have stamped the law of real property with language stemming from pre-Republican Rome, and aspirations molded by an emerging post-feudal medieval England.

240. See supra notes 19-21.