Chapter 7 - § 7.5 • TENANCY IN COPARCENARY

• Jurisdiction: Colorado

§ 7.5 • TENANCY IN COPARCENARY

At common law, a tenancy in coparcenary was created where lands of inheritance descended from the ancestor to two or more persons.¹⁶⁷ Because in most parts of England, the oldest one of the nearest male descendants of the deceased became the sole heir by primogeniture, the common law estate in coparcenary usually came into existence only where there were solely female heirs.¹⁶⁸

Beginning in 1861¹⁶⁹ and continuing¹⁷⁰ until 1973,¹⁷¹ Colorado recognized the descent of lands, to both females and males, in coparcenary.¹⁷² It may be conjectured that the provisions regarding the descent of lands in coparcenary were intended to avoid the suggestion that the common law of primogeniture was in effect in Colorado.

Colorado recognized tenancy in coparcenary in the partition statutes beginning in 1861¹⁷³ and continuing¹⁷⁴ until 1949.¹⁷⁵

Colorado also recognized tenancy in coparcenary in statutes regarding joint obligations beginning in 1861.¹⁷⁶ Before 1911, these provisions were applicable to property held in joint tenancy, tenancy in common, and coparcenary generally. The 1911 amendment added provisions specifically relating to such tenancies in mining property.¹⁷⁷ The 1923 amendment¹⁷⁸ repealed the former provisions and the new statute was limited to mining property. Nevertheless, it continued the use of the term "co-parcener,"¹⁷⁹ and that term is used in the current statute relating to tenants in common of mining property.¹⁸⁰ Because, as mentioned above, the descent of lands in parcenary ceased to be recognized in 1973, it would seem that a "coparcener" in mining property can only be one who took by intestate succession before the date of the 1973 amendment of the intestacy statute.

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Notes:

^[167] 2 Bl. Comm. *187.

^[168] Reeves, 2 Treatise on the Law of Real Property § 681 (1909). In the County of Kent, under its gavelkind custom, lands could descend to two or more male heirs in coparcenary. Id.

^[169] An Act Concerning Descents and Distributions, § 1, 1861 Colo. Sess. Laws, p. 246 ("[such estate] shall descend, and be distributed in parcenary, to his kindred, male and female, . . . in the following course and manner").

^[170] R.S. 1868, ch. 23, § 1, p. 258; G.S. 1877, ch. 26, § 1, p. 344; G.S. 1883, § 1039 [ch. 28, § 1], p. 384; R.S. 1908, § 7040 [ch. 157, § 1], p. 1633; C.L. 1921 § 5151 [ch. 111, § 1]; C.S.A. 1935, ch. 176, § 1; C.R.S. 1953 § 152-2-1; C.R.S. 1963 § 153-2-1(1)(a).

^[171] [1973] Colo. Sess. Laws, ch. 451, § 1, p. 1538.

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