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severance, has been determined. It is very difficult to make a distinction between a joint-tenancy by will, by a gratuitous deed, or a purchase. The law of merchants, if it applies to one, must apply to all. If the effect of carrying on the trade is not a severance, it goes to this extent; that the trading, however *long, however numerous the acts, cannot of itself amount to evidence of severance; and unless a parol or other agreement can be shown, the jointtenancy never can be severed. That would deserve great consideration before it should be laid down as law. But this case goes beyond that. Considering these persons merely as agents, acting together by permission of the trustees, bound to account, if required, all the bulk of the property under an obligation to form an accumu. lative fund, to remain liable from time to time to the annuity and legacies, it was at least competent to them as between themselves to say, what their interests in the profits should be; and it is not improbable, they might agree to act as partners with respect to each other, subject to the demands under the will; and there is evidence enough either to sustain an inference, that there has been an agreement to enjoy in severalty, or at least to send it to a jury. Upon the whole will my opinion is clear, that it did constitute a joint-tenancy. As to the severance with respect to the profits, the profits are not expressly given to them : much less are they given to them as tenants in common. If they are given to them as part of the residue, and the residue is given to them as joint-tenants, so must the profits, given as part of that residue ; unless there has been an express dealing upon it, independent of dealing in partnership ; or as dealing in partnership; and if so, the effect must be the same upon the bulk of the property, which they had under their management; and held as partners. Considering all their transactions, it would be hazardous to say, no effect is to be given to them, because the parties were ignorant of the law; if from the nature of their dealings you ought to imply, that they did mean to transact as tenants in common.
Upon the whole I feel a strong inclination, that this decree must be altered; either by deciding, that the plaintiff is not entitled to the profits; or that under all the circumstances applying to partnership dealings, the parties having no interest to deal other. wise, and third persons not being implicated, the decree as to the profits ought to be extended to the bulk; and I think that the best construction.
THE LORD CHANCELLOR, after stating the will and the circum
stances in evidence very particularly, pronounced the following
judgment : The question arises upon the whole of this will, and the facts; which I have detailed at great length, as this is a very peculiar and special case, to be decided, not upon the result of the mere question, whether these profits are given by the will to these two brothers, independent of all the transactions that took place, but upon all the circumstances of the case. Supposing there were no special words in this residuary clause, it is clear, that, where a residue of personal estate, consisting of a great variety of particulars, and especially if none of them are property in trade, is left to two persons, their executors, administrators, and assigns, the effect is a joint-tenancy. But it is to be considered, what would be the case of a bequest, acted upon; the subject simply property in trade; and the testator having the power of giving the trade to them, to be carried on for a given time in the character, in which they originally took, as joint-tenants : so that, one dying before the expiration of that time, the other surviving would take *the bulk, and all the profits made in that given time by the application of the property, forming the bulk. Such an intention is not to be inferred, unless very clearly and unequivocally expressed; considering, that by the law of merchants they will have several interests, though in form a joint interest is given, if they act upon it, and turn partners in trade. If this had been a case, in which the testator had given personal property as capital in trade, the question would deserve great consideration, whether acting for twelve years as partners in trade would not sever the joint-tenancy, created by the will, subject to the intention ; if upon the face of the will it can be shown, that notwithstanding all considerations of convenience the testator had expressly and imperatively directed a joint-tenancy for twelve years. There is no case going to that, but Hall v. Digby ; in which case Vr. Fazakerley, Sir John Strange, and the other considerable persons, who signed the reasons upon the appeal, all agreed, that actual dealing in partnership with effects left to two jointly, with intent, that it should be a dealing in partnership, though they had taken under the will as joint-tenants, yet having once begun to act with the property as merchants, would sever the joint-tenancy, unless the will contained something, that would clothe the property, though engaged in trade, with the quality of joint-tenancy.
This general Law of Merchants, originally applicable to trade only, has been extended a good deal: Jeffries V. Small (1); approved, with some distinctions, in subsequent cases. It was held in that case, that if two take a lease of a farm jointly, the lease shall survive, but the stock on the farm, though occupied jointly, shall not survive. I have a note of my own of a *case of Elliot v. Brown, upon the 25th of July, 1791, in which another distinction was taken by Lord THURLOW ; that the law with reference to the stock would be the same as to the lease, provided the lease was taken only for the same purpose as the stock, and the lease was only the substratum ; and Lake v. Gibson (2) was referred to. The observation upon that was that the purchase of the land was made to the intent that they might become partners in the improvement; that it was only the substratum for an adventure, in the profits of which it was previously intended they should be concerned. In the 4th edition of Equity Cases *Abridged there is & note, referring to the case of executors (3), in which the LORD CHANCELLOR says, “the survivor must carry all; since the Judges will have it so." Whether that is right, or not, was a good deal considered in Perkins v. Baynton (4), in which case it was found very difficult to remove Lord Thurlow from the opinion, that, if executors take, particularly money, they are joint-tenants; and that there is a distinction between them and residuary legatees : but it was found to be well settled, that, whether the residue is taken by them as executors or as residuary legatees, they take as joint-tenants, and not as tenants in common: my note refers to Cray v. Willis (6), Hunt v. Barclay, Willing v. Bayne (6), in which executors were held joint-tenants of the residue : Shore v. Billingsly (7), Webster v. Webster (8), where residuary legatees were held joint-tenants; and proceeds to observe, that the rule of the Ecclesiastical Courts from all the cases, was to hold residuary legatees to be tenants in common; and courts of equity for a long time were reluctant to differ from them. Then they held, that if the executor assents, it becomes a legal debt; and therefore survives, according to the rule of the Common Law. In Sir T. Jones, 130, this was particularly discussed. Other doubts were subsequently raised ; that the assent could not be given while the residue was uncertain. (1) 1 Vern. 217.
(5) 2 P. Wms. 529. (2) 1 Eq. Ca. Ab. 290. Lake v. (6) 3 P. Wms. 113. Cradock, 3 P. Wms. 158.
(0) 1 Vern. 482. (3) Draper's case, 2 Ch. Ca. 64,
(8) 2 P. Wms. 347. (4) 1 Br. C. C. 118. R.R.-VOL. LIII.
In this case it is extremely clear upon the first point, that, unless there are specialties in this will, the residuary clause passed the property to these brothers as joint-tenants; and, attending both to the words of the residuary * clause, and all the passages in the will, having relation to equal division or survivorship in the various events, I am not satisfied, that I can hold upon the will itself, and independent of the nature of the property and the dealings of the parties, that this was a tenancy in common. The question then is, whether upon the face of the will there is sufficient to show an intention, that for the purposes of this will it should remain a joint-tenancy between the two brothers until the death of the wife; though that event might not take place for 20 years, and until the payment of the legacies to the daughters should have been actually made ; and it is contended, that was the intention. If it was, if the testator has imperatively said this property shall, till a definite and distant period after his death, be clothed with the nature and quality of joint-tenancy, I agree, as far as his intention is intimated, that it shall be held purely in that character and quality, independent of any acts between the parties, the Court must hold, that any acts done, or attempted by them, will not be sufficient to take away the character impressed upon the property by the will.
But has the will, either from the obvious intention, the purposes, to which the testator has devoted the property, or from any other consideration, gone this length ; that they should not have any power of destroying the joint-tenancy by any act or agreement ? If they had that power, have they exercised it, under all the circumstances? He was seised of a real estate, which he directs to be converted into personal immediately. He possessed personal estate, exclusive of his property in trade, to a very small amount. It is very difficult to understand his purpose in some particulars : it is clear, however, he meant there should be no disposition of *his property as between his two sons and his widow, that should disappoint her annuity, or his daughter's legacies, as between them and his sons. But has he manifested his belief and persuasion, that such intention could not be executed unless by tying up the residue of his property as between his sons, under all the inconvenience of a joint-tenancy, while a particle of those demands remained unsatisfied ? Notwithstanding the quantity of unintelligible words in this will, if it amounted only to a bequest to trustees, upon trust, to pay an annuity to his widow, and the legacies to his daughters, at a given period, with survivorship and interest, and then giving
the general residue, subject to the payment of his debts, annuities and legacies, the effect of the will would have been exactly the same; except that no question could have arisen, whether the trustees were authorized to withhold from the residuary legatees the possession; for if they had held the whole in their own hands, the residue must have been liable, both bulk and produce, to those demands. But, if that liability was sufficiently provided for, how is it material, whether they are joint-tenants or tenants in common of the residue, the whole they are entitled to, both as capital and and produce, being liable in both cases ? The question therefore would be, whether there was any purpose or scheme in the will, which should, as between themselves, not with reference to third persons, deprive them of the power of severing that which they had taken as joint-tenants.
If there is nothing requiring that in the simple case I have put, do the general contents of this will introduce more difficulty in holding that they might sever? By no means. He had two daughters and two sons to provide for; and the MASTER OF THE ROLLS upon the case *in Blackstone (1) thought the circumstance that the sons had no provision, decisive, that whatever intention he had as to the bulk, his intention could not be to create a jointtenancy as to the profits. That I think not capable of being supported upon that ground. But it is capable of support upon another ground; that, supposing the MASTER OF The Rolls right in saying he could not infer, that for that period, perhaps twenty years, the testator meant they should have no maintenance, but such an allowance as the trustees should think proper, upon the foot of quantum meruit, that circumstance is strong to show he did not intend to determine, ultra the necessity of holding the property liable to the annuity and the legacies, in what nature and quality they should hold as between themselves, or to shut out the possibility of the dealing with that property, as other persons might, for their own benefit; taking orginally as joint-tenants. Is this likely, where the testator makes no provision for his sons : but devests the trustees of the actual possession of real estates, if he had them, and of his leasehold property, all engaged in trades he was carrying on, and of the actual possession as trustees of the management of the trades? Upon my construction of this will the sons, having at all events finally the interest in the property, should be disengaged from the annuity and the legacies. The (1) Saunders v. Lowe, Black. 1014.