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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."
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.5 A testator gave the residue of his estate to trustees, to pay the interest to his four grand
Stewart v. Garnett, 3 Sim. 398. See also Hand v, North, 33 Law J. Rep. (N. S.) Chanc. 556.
* Putnam v. Putnam, 4 Bradf. 308.
Robertson v. Fraser, L. R. 6 Ch. App. 699.
4 Moore v. Cleghorn, 10 Beav. 425.
5 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. S.) Exc. 95; S. C. 4 Mees. & W. 229.
3 Barker v. Giles, 2 P. Wms. 281.
C. & P.--6
property by a common purchase, are, at common law, presumed to be acquired in joint-tenancy. This rule was applied to a patent from the State of Virginia to a father and his two sons, where part of the land had been held by the parties under separate patents, and they had surrendered these patents and taken another in their joint names, including a large tract of land not embraced in the surrendered patents. No doubt, any conveyance apportioning the property conveyed and designating the interests of each grantee, creates a tenancy in common. One instance of this apportionment is where "lands be given to two to have and to hold the one moity to the one and to his heires, and the other moity to the other and to his heires." "And the reason is, because they have severall freeholds and an occupation pro indovisos. Here it is to be observed, that the habendum doth sever the premises that prima facie seemed to be joint: for an express estate controlls an implyed estate." A deed to two of a tract of land without locating the share of each, but giving one about three-fifths and the other about two-fifths, makes them tenants in common.1 The effect of such words as "equally," "share and share alike," etc., in creating a tenancy in common, when used in wills, was, as long ago as the decision of Heathe v. Heathe," said to have been established for at least two hundred years. However this may be, it is certain that a similar effect was denied to such words at a much later date, and by very high authority. When the question arose in the case of Fisher v. Wigg, two of the Judges argued that all parts of a deed should be given effect, if possible, that the grantor's intent should be permitted to prevail, and that as no particular words were essential to the creation of a tenancy in common, any language indicating that the grantor intended to convey a several, rather than a joint estate, should be permitted to accomplish the purpose for which it was so manifestly designed. Against the opinion of these two Judges was that of Lord Holt; and such were
Jones v. Jones, 1 Call. 469.
* Litt. sec. 298.
3 Co. Litt. 190 b.
4 Taylor v. Craig, 6 B. Monr. 457.
52 Atk. 122.
61 Ld. Raym. 622.
the force of his great name and the deference felt for his judgment, that the conclusion thus disputed by him could scarcely be regarded as established by even a preponderance of authority, until about a half a century later, when Lord Hardwicke declared that, with all his respect for so eminent a man, still he felt compelled, on this question, to dissent from the opinion of Lord Holt, and assent to that of the two Judges. The words in the premises of a deed, "to them or any of them, their or any of their heirs," are equivalent to "to each of them, and each of their heirs," and vest an estate in the grantees as tenants in common, notwithstanding the habendum is "to them and their heirs and assigns forever."2 And though the premises of a deed be "to A and B and to their heirs and assigns," still these words may be controlled and a tenancy in common created by a habendum "to the said A and B, their and each of their heirs and assigns, to the only proper use and behoof of the said A and B, and their and each of their heirs and assigns forever."3
? 26. Deed to Woman and her Children.—A deed, devise, or bequest, to a man and his children, or to a woman and her children, without any additional words, must be regarded in the same manner as though made to any other class or number of persons. The grantees, therefore, take as jointtenants. A conveyance or gift to a woman and her heirs vests in her an estate in fee. But the other words in the deed may be such as to show that the children take a present interest. If so, the whole deed will be rendered effectual, by giving the children an estate as joint-tenants or as tenants in common with their mother, according to the intention of the grantor, as manifested by his deed. A bequest was made to A, and at her death "to the heirs of her body and their heirs
1 Rigden v. Vallier, 2 Ves. Sr. 252.
Galbraith v. Galbraith, 3 S. & R. 392.
3 Bambaugh v. Bambaugh, 11 Serg. & R. 191.
Mason v. Clarke, 17 Beav. 126; Newell v. Newell, L. R. 7 Ch. 253; Jackson v. Coggins, 29 Geo. 403; Hoyle v. Jones, 35 Geo. 40; Powell v. Powell, 5 Bush, 619; Bustard v. Saunders, 7 Beav. 92; Crockett v. Crockett, 2 Phill. 553; Webb v. Byng, 2 Kay & J. 669; De Witte v. De Witte, 11 Sim. 41; Morgan v. Britten, L. R. 13 Eq. 28; Eagles v. Le Breton, L. R. 15 Eq. 148; Utz's Estate, 43 Cal. 204; Oates v. Jackson. 2 Str. 1172. Gadsden v. Cappedeville, 3 Rich Law, 467.
and assigns forever;" and "if she should leave no issue, then to be disposed of as she should think proper." It was held to be clear that the testator intended to give the children an interest in the bequest beyond the control of their mother, otherwise he would not have mentioned that in case of her death without issue, she should have a disposing power.1
27. Executory Settlements.-In some instances, power has been given to a person, or to a number of persons, to settle or dispose of funds or other property for the benefit of children or others; and the power not having been executed by the original trustees, the proper manner of carrying it into effect has been considered and determined by the Courts. In the case of marriage settlements designed for the benefit of the issue of the marriage, the Courts direct such a disposition of the property as will entitle the children thereto as tenants in common. "Joint-tenancy," said Lord Redesdale, "as a provision for the children of a marriage, is an inconvenient mode of settlement, because, during their minority, no use can be made of their portions for their advancement, as the joint-tenancy cannot be severed." And so when a trustee, directed to use funds for the benefit of children as he thinks best, dies, the Court will execute the trust by disposing of the funds between the children as tenants in common.3
28. If a devise or bequest be made to several, and one or more die before the testator, then the surviving legatees or devisees will take the entire property so bequeathed or devised, unless the will contained words indicating that the testator intended a several rather than a joint estate; and this is true even where the will contains a clause providing for the disposal of lapsed legacies. The rule goes
Dott v. Willson, 1 Bay, 457.
2 Taggart v. Taggart, 1 Schoales & L. 88.
3 Phene's Trusts, L. R. 5 Eq. 346; Mayn v. Mayn, 5 L. R. 5 Eq. 150.
Morley v. Bird, 3 Ves, 628; Cowdin v. Perry, 11 Pick. 503; Ball v. Deas, 2 Strob. Eq. 24; Larkins v. Larkins, 3 Bos. & Pul. 16; Buffar v. Bradford, 2 Atk. 220; Frewen v. Relfe, 2 Bro. C. C. 220; Welling v. Baine, 3 P. Wms. 113; Miller v. Webster, 2 Vern. 207; Ledsome v. Hickman, 2 Vern. 611.
5 Gilbert v. Richards, 7 Vt. 203.