they were to direct how the parties were to convey. He said, that the Court had taken much greater liberties in the construction of executory trusts, than where the trusts were actually executed; and directed a conveyance to the sons successively in tail, it being not a trust executed, but executory. Thus notwithstanding the reasoning of Lord Hardwicke in Bagshaw v. Spencer, he will be found in other cases decided by him both before and after that case, to have upheld by his authority the distinction taken by Lord Talbot in Lord Glenorchy. Bosville*, which may be considered as the great case upon the subject. The devise in that case was to trustees, and their heirs, in trust till the marriage, or death of the testator's grand-daughter, to receive the rents and profits, and pay her an annuity for her maintenance; and, as to the residue, to pay his debts and legacies, and after payment thereof, in trust for his granddaughter, and if she married a Protestant, after her coming of age, or with consent, then to convey the estate after such marriage, to the use of her for life, without impeachment of waste, remainder to her husband for life, remainder to the issue of her body with several remainders over; and one of the questions was, whether Lady Glenorchy, (the grand-daughter) under this will was tenant for life or in tail. Lord Talbot said he should have made no difficulty of determining this to be an estate tail had it been the case of an immediate devise. He thought, in cases of trusts executed, or immediate devises, the construction of the courts of law and equity ought to be the same, for there the testator did not suppose any other Of the opi nion of Mr. Fearne ; and the clarations of Lord Thurlow, Eldon. conveyance would be made. That the case of Papillon v. Voice' seemed a strong authority for executing the intent in executory trusts, as well as in marriage articles; and he accordingly decreed to Lady. Glenorchy only an estate for life with remainder to her first and other sons in tail male, &c. We It would be useless to cite more cases upon this subject. All of them which had taken place before and judicial de- during his time have been collected, and reasoned upon by Mr. Fearne in his Essay on Contingent Remainand Lord ders, whose opinion was strongly in favour, as well of the close analogy between trust estates executed and legal estates, as of the distinction between such executed trust estates, and such trusts as are executory, and which leave something to be done on which a court of equity may ground its special interference to carry the intent of a testator into full effect. may conclude with observing, that Lord Thurlow in Jones v. Morgan, adhered to the principle of applying the same rules to trust as to legal estates where the devise is immediate; and that Lord Eldon in the important case of the Countess of Lincoln v. the Duke of Newcastle, said, that there is a distinction between a will making a direct gift, and a covenant by articles to be executed, but none between a covenant in consideration of marriage, and an executory trust by will. 12 P. Wms. 471. 1 Bro. C. C. 206. * 12 Vez. Jun. 218. SECTION VII. What words create a Joint-Tenancy, and what a INDEPENDENTLY of all inference to be drawn from the contents of the will, it is well settled that a devise to two or more generally, or to two or more and their heirs, makes them joint-tenants. Courts of equity lean construc law and against the tion of a Courts both of law and equity are said now to lean against joint-tenancy; though formerly it was otherwise, upon the ground of the inconvenience of multiplying services under the old tenures. Any words joint-te therefore, importing an equality of benefit, will lead to the construction of a tenancy in common. Thus, nothing is better settled than that in a will, the words equally to be divided" will create a tenancy in 66 common. nancy. What has construc been the tion where words im But it sometimes happens that after such distributive words the testator adds an express limitation to the survivor, or directs that the estate may there are be enjoyed with benefit of survivorship; which has a tendency to embarrass the construction. It has been ́laid down in positive terms that where lands are devised to two or more persons, to hold to them and port equality of interest, and also a survivorslip among the devi the survivor of them, they will take an estate in joint- sees. 3 Atk. 524. Furse v. Weekes, 2 Roll. Ab. 90. an estate in joint-tenancy upon the express import of the last words. But this doctrine has not prevailed in later cases, in which the courts have been ingenious to give effect to the words of severance without sacrificing the words of survivorship. In some cases, however, the construction of words in a will, as importing a joint-tenancy, has been favoured as tending to effectuate and preserve the estates. As where a testator devised to Jane and Elizabeth all his estate, to be equally divided between them during their natural lives, and, after the deceases of the said Jane and Elizabeth, to the right heirs of Jane for ever; the only question was, whether this devise made Jane and Elizabeth joint-tenants for life, so as that, upon the death of Jane, the whole survived to Elizabeth for life; or whether, upon the words "equally to be divided between them," they were tenants in commond? Lord Chief Justice Holt pronounced the opinion of the Court that they were joint-tenants, notwithstanding the words "equally to be divided among them," and that the lands ought to survive to Elizabeth: 1st. Because, though upon such words, generally they would be tenants in common; yet if it should be ́so in this case, it would be expressly against the intent of the testator, and would defeat the heirs of Jane of part; for they were to take altogether, and not by moieties, one at one time, and one at another, but all at once; if they should be tenants in common, they must take by moieties at several times. 2dly, It d 1 Vent. 216. Tuckerman v. Jeffries, 3 Bac. Abr. 681. Holt, 370. was expressed that the heirs of Jane were not to take till after both their deceases. 3dly, If they should be tenants in common, then the heirs of Jane would be in danger to lose a moiety; for, as to that one moiety, it must be a contingent remainder; so that if Elizabeth had died during the life of Jane, the contingency for that moiety not happening [when the particular estate determined,] it must descend to the heirs at law of the testator, who were Elizabeth and the issue of Jane, as coparceners. 4thly, Jane and Elizabeth were heirs at law of the testator, and, as such, the whole would have descended to them in coparcenary, if no will had been made; but it was plain, the testator intended to prefer the heirs of Jane to the whole. It was therefore adjudged that Elizabeth and Jane took as joint-tenants. A. Haws devised all his estate in D. to his four younger children, A., B., C., and D., their heirs and assigns for ever, equally to be divided between them, share and share alike, as tenants in common, and not as joint-tenants, with benefit of survivorship. Lord Hardwicke said, that, in Chancery, joint-tenancies were not favoured; because they were a kind of estate that did not make provision for posterity: neither did courts of law at this day favour them, though Lord Coke says, that joint-tenancy is favoured, because the law was against the division of tenures: but, as tenures were abolished, that reason had ceased, and courts of law inclined the same way with the courts of equity. Another was, that where there were contradictory words in a will, the court made a reasonable and uniform construction, and would re Haws v. Haws, 3 Atk. 523. 1 Wils. R. 165. |