terest, had purchased certain lands, to which purchase some of them had not contributed their proportion of funds. Here was a case, then, where the presumption of joint-tenancy was rebutted by the conceded fact that the subject-matter of the controversy had been acquired in the prosecution of a joint adventure, undertaken for the purpose of speculation or of common profit. Hence the Master of the Rolls "decreed that survivorship should not take place; for that payment of money created a trust for the parties advancing the same; and an undertaking upon the hazard of profit or loss was in the nature of merchandising, where the jus accrescendi is never allowed." A decision made at a more recent date than any of those referred to, seems to have necessarily involved this question. Two persons had certain stocks, part of which were acquired by equal and part by unequal advances. According to the very meagre and unsatisfactory report of the case, the Court determined that the stock paid for equally was held in joint-tenancy, and that there was no reason to infer that the other stock was held in any different manner.2

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21. Parol Evidence to Rebut Presumption of JointTenancy. Notwithstanding the Statute of Frauds, parol evidence is admissible to rebut the presumption of jointtenancy, by showing that the parties, though originally holding jointly, had contracted to deal with their property as if in trade. But whenever it is sought to show that the parties have turned their joint estate into a tenancy in common, it has been held that the parol evidence admissible for that purpose must be confined to the acts of the parties, showing the manner in which the property was treated and the purposes in which it was embarked, and can in no case include evidence of mere declarations of intention."

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22. Parol Evidence to establish Cotenancy.-Where, upon joint purchase of an estate, the conveyance is made to

1 Lake v. Craddock, 3 P. Wms. 159.

Harris v. Fergusson, 16 Sim. 308.

Jeffereys v. Small, 1 Vern. 217; Robinson v. Preston, 4 Kay and J. 505,
Harrison v. Barton, 1 Johnson & Hemming, 293.

but one of the purchasers, the trust in favor of the copurchaser may be proved by any evidence in writing made at or after the purchase.' But if the parties have advanced their money in pursuance of an agreement to make a joint purchase, a resulting trust arises which may be established by parol, and enforced against him in whose sole name the deed has been taken.2

23. Creation of Joint-Tenancy by Bequest or Devise. At an early day, it was sometimes questioned whether a legacy could be held in joint-tenancy. The rule, however, was soon established that bequests, as well as devises and conveyances, should be deemed to pass estates in joint-tenancy unless a contrary intent appeared. This contrary intent must be apparent from the will itself. No doubt the Courts always lean towards tenancy in common when the parties claim under a will, and are ever ready to give full effect to any language of the testator showing a design to create several interests. "It may be stated generally, that all expressions importing division by equal or unequal shares, or referring to the devisees as owners of respective or distinct interests and even words simply denoting equality, will have this effect." In wills, the Courts construe survivorship into some other word, if possible. Whenever a bequest or devise is to two or more "equally," or "to be equally divided," or "in equal shares,"

12 Sugd. on Vendors, 678 (7th Am. ed. 388.)

2 Dart on Vendors and Purchasers (4th Eng. ed.) 850; Sugden on Vendors (7th Am. ed.) 388; Scott v. McKinney, 98 Mass. 344.

3 Campbell v. Campbell, 4 Bro. 15; Armstrong v. Armstrong, L. R. 7 Eq. 518; Martin v. Smith, 5 Binn. 16; S. C. 6 Am. Dec. 395; Crooke v. De Vandes, 9 Ves. 204; Morgan v. Britten, L. R. 13 Eq. 28.

42 Powell on Dev. ch. 18, p. 370; quoted and approved in Gilpin v. Hollingsworth, 3 Md. 195; S. C. 56 Am. Dec. 737. See also Ettricke v. Ettricke, Amb. 656; Gordon v. Atkinson, 1 DeG. & S. 478; Griswold v. Johnson, 5 Conn. 365; Dunn v. Bryan, 38 Geo. 154; Allison v. Kurtz, 2 Watts, 185; Wescott v. Cady, 5 Johns. Ch. 334; 9 Am. Dec. 306; Vreeland v. Van Ryper, 17 N. J. Eq. 134; Ryves v. Ryves, L. R. 11 Eq. 541; Att'y Gen'l v. Fletcher, L. R. 13 Eq. 128.

54 Dane's Ab. 760.

Heron v. Walsh, 3 Grant's Ch. (Upper Canada) 606; Heathe v, Heathe, 2 Atk. 121; Torret v. Frampton, Style, 434; Bagley v. Cook, 3 Drew, 662.

7 Stewart v. Garnett, 3 Sim. 398; Briscoe v. McGee, 2 J. J. M. 370; Jensur v. Jenour, 10 Ves. 569; Esdale v. Wilshere, 9 Law J. Rep. Ch. 71; Hodges v. Grant, 36 Law J. Rep. (N. S.) Chanc. 395; Law R. Ex. 140.

Emerson v. Cutler, 14 Pick. 114; Hart v. Marks. 4 Bradf. 161.



or "equally among, or "to and amongst them," or to them "respectively," or according to quantity and quality, each to take his part when he comes of age, the devisees or legatees, as the case may be, will acquire the property as tenants in common. "It hardly seems," says Mr. Jickling, "desirable to accumulate authorities on this head: it may be sufficient to observe, that any words of severance, whether 'share and share alike,' 'between,' 'among,' 'equally to be divided,' 'videlicet," by and between," 'severally," and similar expressions, would probably at law, and certainly in equity, have that effect." So a devise to two persons to the longest liver of them, to be equally divided between them, creates a tenancy in common;" and a like result follows a devise "equally to my brother A's eldest son, and his heirs, and to my brother B's eldest son and his heirs jointly to be enjoyed by them, their heirs and assigns forever."2 A tenancy in common also arises from a devise to A and B, to be held and divided by them as they shall deem most equal. A devise was made to the children of J. B. equally, share and share alike, for and during the term of their joint natural lives, or the life of the survivor, or longer liver of them. It was held that the children took as tenants in common, without benefit of survivorship. A testator bequeathed to his grandchildren a legacy of one thousand pounds, payable to each of them on their attaining twenty-one years of age. The words, payable to each of them, were considered as equivalent to "to be divided between them," and the grandchildren were therefore

1 Denn v. Gaskin, Cowp, 657; Morley v. Bird, 3 Ves. 630.

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Lewen v. Cox, Cro. Eliz. 695; Moore's Settlement, 10 W. R. 315; 31 Law J. Rep. (N. S.) Ch. 364; Gordon v. Atkinson, 1 De G. & S. 478.

Harrison v. Botts, 4 Bibb, 420.

Jacques v. Collins, Cro. Car. 75.

* Perkins v. Baynton, 1 Bro. C. C. 118; Lashbrook v. Cock,-2 Mer. 70.

1 Kew v. Rowse, 1 Vern. 353.

Prince v. Heylyn, 1 Atk. 493.

9 See 2 Atk. 441.

10 Jickling on Legal and Equitable Estates, 237. See also Blewitt v. Roberts, 10 L

J. Rep. (N. S.) 342; 1 Cr. & P. 274; Paine v. Wagner, 12 Sim. 184.

Blissett v. Cranwell, 2 Lev. 373; Salk. 226.

Evans v. Brittain, 3 S. & R. 135.

is Ingalls v. Arnold, 14 Q. B. (Upper Canada) 296.

Bryan v. Twigg, 37 Law J. Rep. (N. S.) 249; S. C. Law Rep. 3 Chanc. 183,

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treated as tenants in common. But in New York, where a testator bequeathed a share of his estate to W. S. and F. S., "to be paid them when they come of age," the Court thought it "clear that the legacy in question was given to the donees as joint-tenants," because "the terms of the clause directing payment are joint in their effect, and not several: the share is to be paid to them when they come of age." A testator having made a will giving his residuary estate to A and B, subsequently, by a codicil, provided that such residuary interest should go to A, B, and C, "so that C should participate in such bequest free from legacy duty with A and B.” In determining what estate the legatees were entitled to under this will, the Lord Chancellor stated that he had no doubt that such words as "amongst," "alike," "respectively," "equally," and "anything which in the slightest degree indicates an intention to divide the property, must be held to abrogate the idea of a joint-tenancy, and to create a tenancy in common;" that "amongst" and "respectively" are not stronger words than "participate;" and he "had no doubt that the word 'participate' is sufficient to indicate an intention to divide, and to create a tenancy in common."

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24. Cases where Devises have been regarded as Joint.—Where a devise was to trustees "to pay certain rents, profits, etc., to three boys, or to the survivor or survivors of them, share and share alike," the Master of the Rolls said: "There is some difficulty in the construction, but, on the whole, I think the boys take equitable estates in fee, as joint-tenants." Real estate having been devised to A, B, and C, to be sold, and the money to be equally divided between them, this devise was construed as creating a jointtenancy in the land, but a tenancy in common of the produce of the land, when sold. A testator gave the residue of his estate to trustees, to pay the interest to his four grand


1 Stewart v. Garnett, 3 Sim. 398. See also Hand v, North, 83 Law J. Rep. (N. 8.) Chanc. 556.

* Putnam v. Putnam, 4 Bradf. 308.

Robertson v. Fraser, L. R. 6 Ch. App. 699.

Moore v. Cleghorn, 10 Beav. 425.

Goodtith on dem. of Roebuck v. Oxley, 7 D. & R. 535.

daughters "equally between them, share and share alike, for and during their several and respective lives, and from and after the decease of the survivor of them," to divide the principal among their children. Two of these four persons having died, the question arose whether the two still living were entitled to an interest as survivors. Lord Chancellor Thurlow said, that "though the words 'equally to be divided,' and 'share and share alike,' were in general construed in a will to create a tenancy in common, yet, where the context shows a joint-tenancy to be intended, the words shall be construed accordingly; and that, in this case, it was evident, that the interest was to be divided among four while four were alive; among three while three were alive; and nothing was to go to the children while any one of their mothers were living; and declared the whole interest to belong to the two living granddaughters, by survivorship." A devise was made to the testator's two nieces "equally between them, to take as joint-tenants, and to their several and respective heirs and assigns forever:" Held, "that due effect may be given to all the words in this devise, by deciding that the devisees, the nieces, took an estate for their joint lives and the life of the survivor; that is, as joint-tenants, with remainder to each of them as tenants in common in fee after the death of the surviving life: in other words, that they took as tenants in common in fee, subject to an estate for their joint lives and the life of the survivor."2 A testator directed that a sum of money be settled to the use of his two nephews, "and the survivors and survivor of them, and their heirs and assigns forever, equally to be divided between them, share and share alike." In order to give every word of the will effect, the Lord Chancellor construed it as making the two nephews joint-tenants for life, with several inheritances to them in common.3

25. Creation of, Joint-Tenancy by Deed.-In a preceding section, it has been shown that all joint acquisitions of

1 Armstrong & Eldridge, 3 Bro. C. C. 215.

* Doe on dem, of Littlewood v. Green, 8 Law J. Rep. (N. 8.) Exc. 95; S. C. 4 Mees. & W. 229.

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