6 Rutgers L. Rev. 550 (1951-1952)
The Effect of an Attempted Creation of an Estate by the Entirety in Unmarried Grantees

handle is hein.journals/rutlr6 and id is 620 raw text is: RUTGERS LAW REVIEWV

THE EFFECT OF AN ATTEMPTED CREATION              OF AN    ESTATE
BY THE ENTIRETY IN       UNMARRIED GRANTEES
Donald Kepner*
Surveying thirteenth century property law, Pollack and Maitland re-
counted that they had found conveyances to husband and wife, which
they observed would have made the grantees tenants by the entirety
under the interpretation placed upon these words at a later date.'
It will be recalled that this was the age of Bracton,2 who had been
credited by Holdsworth as perhaps recognizing this form of tenancy.8
There appears to have been a doubt on the part of both Holdsworth and
Maitland that estates by entirety were recognized before 13oo. What-
ever the date of its origin, estates by the entirety emerged no later
than by the fifteenth century;4 for it was in this era that Littleton pro-
duced his treatise on Tenures,5 in which he enumerates the four vari-
eties of co-ownership6 in the form recognized by Coke7 and Blackstone8
and received into American property law.9
Tenancy by the entirety in realty and in personalty remained in Eng-
land until abolished by the Married Woman's Property Act of 1882.10
Construing the aforementioned enactment, the English judges held
that the statute abolished this estate in conveyances executed subse-
quent to its effective date, but that it did not affect joint interests es-
tablished prior to the Act. Not until 1925 was legislation passed which
in terms converted tenancies by the entireties into joint tenancies, and
which provided that husband and wife were to be treated as two per-
sons with respect to their property.12
* Associate Professor, Rutgers University School of Law.
I. POLLACK & MAITLAND, THE HISTORY OF THE ENGLISH LAW 434 (2nd ed. 1923).
2. The year of Braction's birth is unknown. He is reported to have died in 1267.
WINFIELD, THE CHIEF SOURCES OF ENGLISH LEGAL HISTORY 259 (1925).
3. 3 HOLDSWORTH, A HISTORY OF ENGLISH LAW 127 (3rd ed. 1923).
4. HOLDSWORTFI, AN HISTORICAL INTRODUCTION TO THE LAND LAW 69 (1927).
5. LITTLETON'S TENURES was printed in 1481 or 1482. WINFIELD, THE CHIEF
SOURCES OF ENGLISH LEGAL HISTORY 309 (1925).
6. a. Joint tenancy.
b. Coparcenary
c. Tenancy by entirety.
d. Tenancy in common.
7. Joint Tenancy, 1 Co. INST. * 728; Coparcenary, ibid. at 677; Tenancy by the
entirety ibid. at 740; Tenancy in common, ibid. at 758.
8. Joint Tenancy, 2 BL. COMM. * 18o; coparcency, ibid. at 187; tenancy by the
entirety, ibid. at 182; tenancy in common, ibid. at 191.
9. Joint Tenancy, 4 KENT'S COMM. * 358, coparcenary, ibid. at 366; Tenancy by
the entirety, 2 KENT'S COMM. * 362; Tenancy in common, 4 KENT'S COMM. * 370.
1o. Married Woman's Property Act, 1882, 45 & 46 Vic'r., c. 75-
I I. Thornley v. Thornley (1893) 2 Ch. 229.
12. Law of Property Act, 1925, 15 & 16 GEO. 5, C. 20.

Vol. 6, No. 3

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