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which the law has annexed to it, but leaves it in all other respects as it was. *** In short, since the statute, jointtenants seem to have an estate that is to all purposes joint, both in its inception and also in its continuance, until a destruction or severance thereof takes place; which latter, where an interest has become vested, is effectuated by the statute at the moment any of them dies, to the extent of his part; and henceforth that part is to be regarded as it would have been (though the statute had never been enacted) if the joint estate had been to the same extent dissevered by any of the means which theretofore existed. And, if this be the sum of its efficacy, the consequence seems to be, that in regard to the lapsing of devises and legacies, and also in regard to the vesting of estates created or transferred by conveyances inter vivos, it has been productive of no change whatever.”1
41. Property still held in Joint-Tenancy. The statutes of the several States in regard to joint-tenancy (most of which have already been cited) do not, as a rule, include all kinds of property. So far as there are any decisions upon this subject, they establish the general proposition that jointtenancy is only abolished as to the species of property necessarily included in the words of the statute. Thus, in Massachusetts, all conveyances and devises, made to two or more, were, except in certain cases, to be deemed tenancies in common. This statute, it was held, did not affect an estate acquired by disseisin, for the disseisors held neither by deed nor by devise. For a like reason, the statutes of Massachusetts, New York, and Vermont, did not affect personal estate. These statutes spoke of grants and devises; terms which apply to real estate, and to real estate only." The statute of Arkansas enacted that "all survivorships of real and personal estates are forever abolished." The Courts of that State con
'Wythe's Reports, 379, 380. The position here taken is no doubt inconsistent with Sawyer v. Trueblood's Exrs. 1 Murph. 190; but that case is apparently a misstatement rather than an interpretation of the statute under which it was made, and does not accord with the later case of Weir v. Humphries, 4 Ired. Eq. 277.
* Putney v. Dresser, 2 Met. 586.
Putnan . Putnan, 4 Bradf. 309; Decamp v. Hall, 42 Vt. 485; Emerson v. Cutler, 14 Pick. 116.
sidered that the sole object of this act was to avoid the incident of survivorship whereby the longest liver became sole owner of the entire estate; that the act was not intended to interfere with the legal right of the surviving owner of a joint chose in action to prosecute a suit thereon in his own name; and therefore such a construction was given to the act as allowed one of the payees of a promissory note to maintain an action thereon after the decease of the other payee.1
? 42. Mortgagees.-The statute of Massachusetts, passed in 1785, provided that all conveyances to two or more grantees shall be adjudged to convey estates in common, unless an intent to pass a joint estate appear from the conveyance. The question arose, at quite an early day, whether this statute abolished joint-tenancy in mortgages. Chief Justice Parsons delivered the opinion, holding that the mortgagees were joint-tenants, saying: "As upon the death of either mortgagee, the remedy to recover the debt would survive, we are of the opinion that it was the intent of the parties that the mortgage or collateral security should comport with that remedy; and, for this purpose, the mortgaged estate should survive. Upon any other construction, but one moiety of the mortgaged tenements would remain a collateral security for the joint debt; which would be clearly repugnant to the intention of the parties to the mortgage."2 Judge Story in deciding the same question, under a statute similar to the Massachusetts statute of 1785, dissented from the conclusion reached by Chief Justice Parsons, and denied the premises on which it was based. He said: "But with great deference to the learned Judge, the doctrine, that a conveyance in mortgage to two persons, as tenants in common, becomes by the death of either no security, except for a moiety, cannot, in my judgment, be maintained in point of law. No authority is cited for it, and it seems to me irreconcilable with established principles. It cannot be deduced from the fact, that the debt vests by survivorship in one party, while the estate
Trammell v. Harrell, 4 Ark. 602; Sessions v. Peay, 19 Ib. 269.
2 * Appleton v. Boyd, 7 Mass. 134; Burnett v. Pratt, 22 Pick. 556. In Massachusetts, mortgages are now excepted from the operation of the statute. Blake v. Sanborn, 8 Gray, 154.
would pass to another. For at the common law, upon the death of the mortgagee, the estate in the land vests in the heir, while the debt vests in the administrator. Upon the like argument, it ought to follow in such case, that by the death of the mortgagee, the whole security in the land should be gone; and yet it is well established that the heir takes the land by descent, subject to redemption, and that the debt belongs to the administrator." After proceeding, by additional illustrations, to show that by holding the mortgagees to be tenants in common of the mortgaged estate, no inconvenience would result in enforcing their remedy, and that no diminution or division of the security would ensue, Judge Story rejected the Massachusetts decision, and declared that the mortgagees did not hold as joint-tenants.'
2 43. Co-Trustees. Some of the statutes enacted in the various States for the purpose of abolishing or discouraging joint-tenancy, or of robbing it of its grand incident of survivorship, except from their operation estates granted or devised to two or more as trustees. But, independent of any express exception, it has been generally, but not universally, decided that these statutes do not apply to estates held in trust. The object of the statutes was to prevent the vesting of the whole estate in one of the cotenants to the exclusion of the heirs of the other. It was thought best to change the rule of the common law so that the cotenant's heirs, who were supposed to be dear as well as near to him, and who had the strongest claims to his protection and to such advancement as might be obtained from his estate, should not be, in effect, disinherited, in the absence of some express stipulation in the deed by which the estate was created, clearly indicating that it was taken subject to the hazard of survivorship. But when lands are granted to two or more persons to be by them held in trust, they have no beneficial interest in the grant. If either die, the vesting of the entire legal estate in the other as survivor has no tendency to operate to the prejudice of those interested as beneficiaries. No children are, in effect, disinherited for the advantage of a stranger. The party
Randall v. Phillips, 3 Mason C. C. 386.
creating the trust estate can hardly be supposed to have designed it to be held as a tenancy in common; for if so held, the death of either trustee, and the consequent descent of his legal estate to his heirs, would necessarily devolve, in part, the management of the trust upon persons who were strangers to the trustor, and upon whom he never thought of calling for its execution. The trustor, it may well be presumed, intended that all the trustees should join in effectuating the trust; but when, from death, one of them can no longer act, the trustor's designs will probably be better accomplished by regarding the remaining trustees as being exclusively charged with the administration of the trust, than by introducing the heirs of the deceased or an appointee of some Court to represent the late trustee and to participate in the management of the trust estate. Because the mischiefs which these statutes were intended to avoid never worked as mischiefs but rather as advantages in connection with estates held by trustees, these estates are regarded as beyond the scope and intent, and therefore beyond the operation of the statutes, and are liable to descend to the survivor or survivors, and in other respects to be treated as at common law.1 On the other hand, it has been contended that a person choosing two trustees does so because he wants more than one, and that on conveying to two and their heirs, he naturally supposes that the heir of the one who first dies will act with the survivor; that while the evil consequences of survivorship are less in connection with trust estates than with others, still this does not justify Courts in exempting them from the operation of those statutes which on their face fail to express any such exemption, and that "it is much better for Courts to be governed by the plain words of a statute than to aim at evading their effect, even for good ends; and in no case should they be overridden, except one of evident necessity to affect an intent plainly shown."2
1 Parsons v. Boyd, 20 Ala. 118; Powell v. Knox, 16 Ala. 364; Gray v. Lynch, 8 Gill. 423; P. R. R. R. Co. v. L. N. Co. 36 Pa. S. 204; Shartz v. Unangst, 3 Watts & S. 45; Stewart v. Pettus, 10 Mo. 755.
*The Boston Franklinite Co. v. Condit, 19 N. J. Eq. 398.
244. Joint-Tenancy of Trust Estates.-Having shown that trust estates, notwithstanding the various American statutes relating to joint-tenancy, are held as at common law, we may now, without departing from the general plan of this work, briefly consider when and how far a trust estate held by two or more was necessarily a joint-tenancy at common law. "Where more trustees than one are appointed, the trust property is almost invariably limited to them as joint-tenants; and even if the terms of the gift rendered this at all doubtful, the Court, for the sake of convenience, would doubtless endeavor, if possible, to affix this construction to it. Therefore, upon the death of one of the original trustees, the whole estate, whether real or personal, devolves upon the survivors, and so on continually to the last surviovor." "As co-trustees have an authority coupled with an interest, their office also must be impressed with the quality of survivorship: as if an estate be vested in two trustees upon trust to sell and one of them die, the other may sell; and if an advowson be conveyed to trustees upon trust to present a proper clerk, the survivor may present."2 That an estate vested in two or more as trustees survives in case of the death of one, is nowhere denied. The chief difficulty is to determine whether the instrument creating the alleged trust vests an estate in the trustees, or merely gives them a naked power to sell. "The general principle of the common law, as laid down by Lord Coke, (Co. Litt. 112 b,) and sanctioned by many judicial decisions, is, that when the power given to several persons is a mere naked power to sell, not coupled with an interest, it must be executed by all, and does not survive. But when the power is coupled with an interest, it may be executed by the survivor. But the difficulty arises in the application of the rule to particular cases. It may, perhaps, be considered as the better conclusion to be drawn from the English cases on this question, that a mere direction in a will to the executors to sell land, without any words vesting in them an interest in the land, or creating a trust, will only be a naked power
Hill on Trustees, 303.
Lewin on Trusts, 300; Lane v. Debenham, 17 Jur. 1005; Shook v. Shook, 19 Barb. 653; Wheatley v. Boyd, 7 Exc. 20; King v. Leach, 2 Hare, 59.