joint tenants had a bad opinion of their own lives, they might sever the joint tenancy, and destroy the right of survivorship, by a deed, granting their respective shares in trust for themselves; or might enter into covenants not to take advantage of each other by survivorship. But if the joint tenancy was not severed, it was an evidence of intention in the party, to submit to the chance of survivorship; or of that supineness and neglect, to which the law affords no assistance. On behalf of the respondent it was argued, that marriage articles were considered by the courts of equity as minutes of the intent of the several parties, to be afterwards carried into execution by a formal settlement; the intent, however, was the leading and capital rule: that in the present case there could not be the least doubt of the intent of the several parties to the articles. The portions thereby created for the children, were clearly meant as separate and distinct interests in each child, for the maintenance of each, and of the children he or she might have. But this very natural and rational intent was totally overturned by the notion of a joint tenancy, which let in a mischief never dreamt of by the parties; for if the younger children had died in the father's lifetime, leaving ever so many children, the eldest son, being heir of the father, and taking a considerable real estate as such, would, by the mere chance of survivorship, have carried off the whole of the father's real and personal estate; and the families of the younger brothers would have been left to beggary. That joint tenancy, originally applicable to land rights only, and derived from feudal principles, calculated for, the support of military tenures, long since abolished, was now constantly discountenanced in courts of law and equity. Every VOL. IV. A a What Words Tenancy in 1 P.Wms. 18. anté, c. 20. $86. Anon. 2Vent. 365. Hamell v. Hunt, parent, in providing for his children, whether by will by articles, or by settlement, was naturally supposed to have in view, not only his own immediate children, but their posterity also; and that the provision he was making for his children, was such as might enable them to marry, and provide for a wife and their issue. And if this held in wills, where even children were considered as volunteers; a fortiori must it do so in marriage settlements, under which they were considered as purchasers for the most valuable of all considerations. The decree was reversed, upon the principle that the children took as joint tenants. 52. Littleton says, if lands be given to two, to have and to hold them, scilicet the one moiety, to the one and to his heirs; and the other moiety to the other and to his heirs; they are tenants in common. Lord Coke, in his comment on this passage, says, the reason is, because they have several freeholds, and an occupation pro indiviso; and that the habendum severs the premises, that prima facie seemed to be joint: for an express estate controls an implied one. 53. A person covenanted to stand seised to the use of A, for life, and after to two, equally to be divided, and to their heirs and assigns for ever. Lord K. North declared, that the inheritance was in common. He said, it had been held, that where the words were to two, equally divided, that should be in common; otherwise if the words were, equally to be divided: but since taken to be all one. 54. A man assigned a term to trustees, in trust to Prec. in Cha. permit himself to receive the profits thereof during his life, and after his death, in trust to permit his two daughters B. and C., their executors and admi 164. nistrators, to receive the profits during the residue of the term, equally to be divided between them; they paying so much within two years to his two other daughters. The Master of the Rolls (Sir J. Trevor) held, that this being a trust of a personal thing, they were tenants in common; and that the father's intention appeared so in the consideration, which was to make several and distinct provisions for his two daughters; and the paying of the sums appointed to their two sisters, made them purchasers. 12 Mod. 296. 291. 55. A copyholder in fee had issue four sons, and Fisher v. Wigg, two daughters, and surrendered his copyhold to the 1P. Wms. use of his wife for life, and after her death, to the 14. use of his three younger sons and two daughters, 1 Ab. Eq. equally to be divided, and their respective heirs and assigns for ever, The question was, whether these words made a tenancy in common, or whether the sons and daughters took as joint tenants. The Judges delivered their opinions seriatim. Gould, Just.-The sons and daughters take as tenants in common, and not as joint tenants. In the construction of deeds this rule is to be observed, viz. to make all parts of them take effect, according to the intent of the parties, so as it be not contrary to the rules of law; and it will not be inconsistent with any rule of law, to construe this a tenancy in common; the words upon which we are to judge, being not words of limitation, or creation of an estate, but of qualification and correction. There are no precise words requisite to make a tenancy in common; the words equally to be divided, go to the quality of the estate, and not to the limitation of it. The intention of the surrenderor was to make provision for his younger children and their heirs; which will not take effect, if it be a joint estate. Surrenders of copyhold land to Vide Tit. 37. uses shall have the same favourable construction as wills, and are not to be tied up to the strict rules of common law, but expounded according to the intention of the party. The words equally divided, or equally to be divided, make a tenancy in common in a will, beyond dispute; and we are here in the case of an use, which bears the like construction with a will. Turton, Just. of the same opinion, and argued much to the same effect. Holt, Ch. Just. contra. Copyhold lands do not differ in construction of law from freehold lands; and surrenders of copyholds must be governed by the same rules as conveyances at common law. By this surrender the sons and daughters are joint tenants, and not tenants in common; for the words equally to be divided, signify no more than the law would have implied without them; and therefore they can have no operation. 1 Inst. 186 a. One joint tenant can only forfeit or dispose of his own part; and if both join in a feoffment, and one die, it must be pleaded as the feoffment of both, and not of the survivor only. The true difference between joint tenants and tenants in common, is put in Littleton, § 292. Joint tenants hold by one joint title, but tenants in common by several titles. In our case the title is joint, and all claim under the same conveyance. The word equally doth not alter the manner of taking the profits, there being no dif. ference in that respect between joint tenants and tenants in common. There is a difference between wills and conveyances at law, and words in the one shall have a different construction from what they would have in the other. It was after some time and debate that these words (equally to be divided) obtained to make a tenancy in common; and the doubt proceeded from hence, (scil.) because they did not make an estate a tenancy in common at law; for if they had, there could then have been no doubt upon a will. It has been hitherto the constant opinion, both at the bar and at the bench, that those words will not make a tenancy in common in a deed. Judgement was given that it was a tenancy in common. 56. George Everinden by deed-poll, in considera- Rigden v. Valier, tion of natural love and affection to his wife and MSS. Rep. children, did give, grant, and confirm, to his two 2 Ves. 252. daughters, all the rents and profits of two tenements, during the life of his wife, equally to be divided between them, paying the sum of 51. per annum to his wife; and after the decease of his wife, his twodaughters, to share, hold, and enjoy the said lands, to them and their heirs for ever, equally to be divided between them. One of the daughters died leaving children. The question was, whether the two daughters took as joint tenants, or tenants in common. Lord Hardwicke.-I have considered this case as well as I could; but after I have delivered my opinion, if the parties are not satisfied, I will put it into some other method of argument, considering the nature and nicety of the question, and the variety of dictums in the books. It is settled, that the words equally to be divided do in a will make a tenancy in common: nay, without the word divided, if it be only said equally, or share and share alike. But it was objected, that in a deed it must be taken otherwise now I know of no solemn determination that these words will not make a tenancy in common, even in a deed. The principal case in which the learning upon this question has been drawn together, is Fisher v. Wigg. ante, § 55. It was said indeed to be of doubtful authority. Lord Chief Justice Holt, differing from the other two Judges, and the judgement said to be reversed. But |