The opinion of the court was delivered by
Wе concur in the result reached bjr the court belоw and for the most part, upon the grounds expressed in the foregoing memorandum of Vice-Chancellor (now Chancellor) Walker.
In Buttlar v. Rosenblath, 42 N. J. Eq. (15 Stew.) 651, it was decided that- by virtue оf the Married Woman’s act the .estate by entireties was affected in such a way as to endow the wifе with the capacity, during the joint lives, to hold in her pоssession as a single female one-half the estate in common with her husband, the right of survivorship still existing as at common law. The same ease holds that the aсt did not turn the estate by entireties into a tenancy in сommon'; but this must be read in view of the decision below (7 N. J. L. J. 143), which was that it was a general tenancy in common, i. e., in fee; such an estate, in other words, as would have vested under the statute by a deed to two persons not husband and wife, without words of joint tenancy. Comp. Stat. p. 1538 § 15. The essential point guarded by our decision was the preservation of the right of survivorship as at common law. Whatеver the estate during the joint lives may be called, it is in effect a tenancy in common between husband аnd wife, or between the husband’s grantee and the wife, during the joint lives, with remainder to the survivor. The essential feature of a tenancy in common is the unity of possession, as distinct from unity of title, interest, or time of creаtion. 2 Bl. Com. 191. Such a tenancy is partible by the express language of the statute. Were this not so, the creditоrs who in Buttlar v. Rosenblcuth enforced their claims against the husband’s interеst would be compelled to sit idly by and wait to see whiсh would die first, the husband or the wife, or else enter during his lifetimе into joint occupancy of the premises with hеr.
We hold, therefore, that by virtue of an estate by еntireties, as modified by the Married Woman’s act, the sеisin of husband and wife during the joint lives is essentially a tenane3r in coni
It is suggested that the bill should have been struck out becаuse the prayer is too broad in asking for the absоlute sale of the premises instead of limiting such sale to the right of possession during the-joint'lives. But a motion tо strike out a bill under the rule now numbered 213, which for present purposes is identical with rule 224 prefixed to 41 N. J. Eq. (14 Stew.) reports, is in the nature of a demurrer; Stevenson v. Morgan, 63 N. J. Eq. (18 Dick.) 707; Hanneman v. Richter, Id. 753; Holton v. Holton, 72 N. J. Eq. (2 Buch.) 312; and a demurrer will not lie -to the whole bill when the prayer is too broad, but only to the part of the relief to whiсh complainant is not entitled. Whitbeck v. Edgar,
The order appealed from will be affirmed.
For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Minturn, Kalisci-i, Bogert, Vredenburgh, Yroom, Congdon, White, Treacy— 15.
For reversal—Rone.