Opinion
August 8, 1794 (Adjourned).
Miller, Read and Fisher for the plaintiff. Ridgely and Bayard for defendant
Among other points which arose in this cause upon a special verdict found by the jury, a question was made whether the plaintiff could recover upon a several demise made by the lessors who claimed as heirs and representatives of an intestate.
It was contended by the defendant's counsel that the heirs took as parceners at common law; that parceners make but one heir and have but one estate among them, 2 Bl.Comm. 187, 1 Bac.Abr. 444, Litt.Ten. 241, Co.Litt. 164a; that the demise of coparceners and joint tenants ought to be joint, Bull.N.P. 107, 1 Ld.Raym. 726; that in all process joint tenants and equally parceners ought to join, Co.Litt. 180, 6 Litt.Ten. 311, 2 Bl.Comm. 482; and that a declaration in ejectment was to be considered as process, Str. 567, 1 Rich.C.P. 344, Barnes 172, 173, 186.
Upon the other side it was said that heirs claiming under the intestate laws took as tenants in common and not as coparceners, 1 Body Laws 51, and it was certainly not to be questioned that the several demise of tenants in common was regular; that the heirs in gavelkind were coparceners by special custom and so deemed in respect of the equality of partition, Litt.Ten. s. 265 ff., but that the male heirs did not take equally under the intestate laws.
The Court having taken time To consider of the several points argued on the special verdict, their opinion was delivered on the 15th of August by READ, C. J. The first point which has been submitted to us in this cause regards the demise, which is several, and which it is alleged ought to have been joint. The Court differ from the counsel for the defendants in the ground of their arguments. We do not consider the lessors as coparceners but as tenants in common. They cannot be coparceners because they have not a unity of interest. The eldest son is entitled to two shares. But we principally rely upon the provision of the intestate law, which expressly directs that the daughters shall take as coparceners and is silent as to the sons. This line could not have been drawn without an intention of leaving the sons upon a different footing. The Act of Assembly, [1 Body Laws] 51, though in some of its provisions purely retrospective, yet in others manifests a view of future operation. By that Act, sons take as tenants in common, and we apprehend the intestate law afterwards made did not mean to vary the principle. We therefore consider the objection to the present demise as without ground.