
    James Sergeant and Wife v. Peter H. Steinberger and others.
    No joint tenancy in Ohio.
    Devise to husband and wife, and their heirs, devisees take as tenants in common.
    This was a writ of error, brought to reverse a decree in chancery, dismissing the complainants’ bill, and was adjourned for decision from Pike county.
    The, bill was filed to obtain partition of certain lands, one-fifth, of which the complainants claimed in right of Mrs. Sergeant as heir at law to her mother.
    The bill charged that D. M’Neil by his last will and testament, dated June 17, 1806, made the following devise: “I give and bequeath unto my daughter, Sarah, and unto her husband, Charles Steinberger, and their heirs and assigns forever, three hundred acres of land,” etc. That Steinberger and wife took possession of the land. That Mrs. Steinberger died before her husband, leaving five children, of whom the complainant, Mrs. Sergeant, was one. That Charles Steinborger, after the death of his wife, made his will, and'devised the lands in question to the defendants, his three sons. The defendants demurred. The court of common pleas sustained the demurrer, and dismissed the bill. ■
    *King, for the defendants, insisted :
    That, the devise to Mrs. and Mr. Steinberger, vested each with an entirety of the interest, so that neither could separate it without the consent of the other, and consequently, by the death of the wife, the whole survived in the husband — that, therefore, the complainants showed no title. He cited 1 Co. Lit. 187, B; 2 Ver. 120; 2 Black. 1211; 6 Term, 652; 1 Ver. 233.
    Bond, for the complainants, maintained:
    That, admitting the estate to be of the character alleged by the defendants, yet the right of survivorship was claimed upon the principle of aj'oint tenancy, which was contrary to the genius of our institutions, and was, in effect, abrogated by the course of descents prescribed in the ordinance, by our subsequent laws, regulating descents, and by the law providing for the partition of real estates, which, in certain cases, authorized the executor or administi’ator of a deceased joint tenant to compel partition.
   By the Court :

It has more than once been decided, by the Supreme Court, on the circuit, that estates in joint tenancy do not exist under the laws of Ohio. The reasons which gave rise to this description of estate in England, never existed with us. The jus accreseendi is not founded in principles of natural justice, nor in any reasons of policy applicable to our society or institutions. But, on the contrary, it is adverse to the understandings, habits, and feelings of the people.

We have no statute recognizing the existence of any such principle as the right of suvivorship. But we have various statutory provisions inconsistent with it. The laws passed, both during the territorial government and since, authorize joint tenants, tenants in common, and coparceners, and, in some cases, the executors, administrators, or guardians of such persons, to demand and have partition. It is from this evident that the legislature have treated a joint tenancy as a tenancy in common.

*It is well settled that the joint tenancy of husband and wife varies in many principles from other joint tenancies. The estate could not be severed, which resulted, most probably, from the fact that the wife could do no act separate from her husband. The conviction of one of the parties of treason did not work a forfeiture of the other’s right. And this was, we may fairly infer, a principle introduced to lessen the number of forfeitures, which were always odious. But the right of survivorship was the same as in other cases of joint tenancy, and in the case of husband and wife, is as much at variance with our laws and usages, as in the common case. Upon the death of Mrs. Steinberger, her undivided half of the land devised, descended to her children, who became tenants in common with their father. The complainants show a good title to one-fifth of their mother’s part, constituting one-tenth of the whole tract, and appear to be entitled to have that tenth set off to them.

The decree of the court of common pleas is reversed, and the cause sent back to be further proceeded in. 
      
       Note by the Editob. — No joint tenancy in Ohio, x. 1.
     