for the intended wife for life, with remainder in trust for CHAP. XXXII. all and every the child and children of the husband by the intended wife, and their heirs for ever. It was contended, that as the shares of children would vest at different times, they were tenants in common; but Lord Thurlow held, that a joint-tenancy was created; observing, that, whether the settlement was to be considered as the conveyance of a legal estate [qu. to the trustees?], or a deed to uses, would make no difference, and that the vesting at different times would not prevent its being a joint-tenancy.

In the passage cited from Lord Coke, the great commentator refers to a demise (s) at common law, and his doctrine has been usually considered as not applying to conveyances to uses or to wills; but both Lord Thurlow and Sir L. Shadwell, concurred (and this was their only point of agreement) in disregarding this distinction.

trusts.

It should be observed, that, in carrying into effect exe- Executory cutory trusts, the Courts will not make the objects jointtenants, without a positive and unequivocal expression of intention to that effect. Thus, where (t) trustees were directed, as soon as the testator's three daughters attained their respective ages of twenty-one, to convey to them, and the heirs of their bodies, and their heirs, as joint-tenants, and, for want of such issue, over; Lord Hardwicke decreed, that the conveyance should be made to the daughters as tenants in common, with cross-remainders, which he thought was the best mode of giving effect to these words.

II. The question next to be considered is, what words What words will operate to create a tenancy in common.

(s) For word "devised" in 17th line of last page, read demised.

create a te

It may

be

nancy in com

mon.

(t) Marryat v. Townly, 1 Ves.

sen. 102.

Expressions which create a tenancy in

common.

CHAP. XXXII. stated generally, that all expressions importing division by equal or unequal shares, or refering to the devisees as owners of respective or distinct interests, and even words simply denoting equality, will have this effect. Thus, it has been long settled that the words "equally to be divided" will create a tenancy in common (u); and so, of course, will a direction, that the subject of gift shall be distributed "in joint and equal proportions” (x).

"In joint and equal proportions."

"Equally."

ly."

46

Severally."

A devise or bequest to several persons, "equally amongst "Respective them" (y), or "equally" (z), or "respectively" (a), or with a limitation to their heirs, "as they shall severally die" (b), or to several "between them" (c), has been held, in contradiction of some of the very early cases (d), to make the objects tenants in common. And a similar construction

"Between them."

part alike," &c.

has been given (e) to a devise to several, their heirs and "All to have assigns, "all to have part alike, and every of them to have as much as the other." So where (g) the devise was to A. and B. of lands, to be enjoyed alike, Lord Mansfield held that they were tenants in common, considering that word as synonymous with equally.

Charge upon the legatees in moieties.

Again where (h) A. bequeathed a term of years to her two daughters, they paying yearly to her son £25 by

(u) 1 Salk. 226; 1 Vern. 65; 2 Vern. 430; 1 Eq. Ca. Ab. 292, pl. 6; Moore, 594; 1 P. W. 14; 1 Lord Raym. 622; 12 Mod. 296 ; 2 P. W. 280; 3 B. P. C. Toml. Ed. 104; 1 Wils. 165; 3 B. C. C. 25; Id. 215; 1 Dowl. & Ryl. 52; 5 Barn. & Ald. 464, 636.

(x) Ettricke v. Ettricke, Amb. 656. (y) Warner v. Hone, 1 Eq. Ca. Ab. 292, pl. 10.

(z) Lewin v. Dodd, Cro. El. 443. S. C. nom. Lewin v. Cox, 695. S. C. Moore, 558, pl. 759. Denn v. Gaskin, Cowp. 657.

(a) Torrett v. Frampton, Sty. 434. Folkes v. Western, 9 Ves. 456. See also Marryat v. Townly, 1 Ves. sen. 101.

(b) Sheppard v. Gibbons, 2 Atk. 441.

(c) Lashbrook v. Cock, 2 Mer. 70. (d) See Lowen v. Bedd, 2 And. 17. (e) Thorowgood v. Collins, Cro. Car. 75. See also Page v. Page, 2 P. W. 489.

(g) Loveacres d. Mudge v. Blight, Cowp. 352.

(h) Kew v. Rouse, 1 Vern. 353. S. C. 1 Eq. Ca. Ab. 292, pl. 7.

quarterly payments, viz. each of them 12l. 10s. yearly, out CHAP. XXXII. of the rents of the premises, during his life, if the term so long continued; Lord Chancellor Jefferies held this to be a tenancy in common, the £25 being to be paid by the daughters in moieties.

In another case (i), A. bequeathed his personal estate to his sons R. and J., and provided, that if J. should be desirous to be put out apprentice, a competent sum should be raised "in part of the SHARE," to which he would become entitled; and Macdonald, C. B., held that the latter words were decisive of the testator's intention to create a tenancy in common.

The preceding cases evince the anxiety of later judges to give effect to the slightest expressions affording an argument in favour of a tenancy in common; an anxiety which has been dictated by the conviction, that this species of interest is better adapted to answer the exigencies of families than a joint-tenancy, of which the best quality is, that the right of survivorship may, at the pleasure of the co-owners respectively (if personally competent), be defeated by a severance of the tenancy.

This leaning to a tenancy in common was acknowledged in a case (k), where a testator bequeathed to A. and B. £10,000, to be equally divided between them, when they should arrive at twenty-one years, and to carry interest until they should arrive at that age. It was contended that the fund was to be divided at twenty-one, the legatees in the mean time taking it jointly; and that, therefore, by the death of one under age, it survived to the other: but Lord Thurlow decided otherwise; observing, that the Court decrees a tenancy in common as much as it can. Of course expressions which, standing alone, would

(i) Gant v. Laurence, Wight. 395.

(k) Jolliffe v. East, 3 B. C. C. 25.

Direction in relegatee's

spect of one

"share."

Leaning in fa

vour of tenancy

in common.

CHAP. XXXII. create a tenancy in common, may be controlled and neutralised by the context: and such, it seems, is the effect of the testator's postponing the enjoyment of an ulterior devisee, or legatee, until the decease of the survivor of the several co-devisees or legatees for life, which, it is thought, demonstrates an intention that the property shall, in the mean time, devolve to the survivors, under the jus accrescendi which is incidental to a joint-tenancy.

Words creating a tenancy in

ed by force of context.

Thus, in Armstrong v. Eldridge (1) where a testator common reject devised the residue of his real and personal estate to trustees, in trust to sell, and apply the interest from time to time to the use of his grandchildren F., C., R., and M., equally between them share and share alike, for and during their several and respective natural lives, and after the decease of the survivor of them, in trust to apply the principal to and among the children of his grandchildren: Lord Thurlow said, that although 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 shewed a joint-tenancy to be intended, the words should be construed accordingly; and in this case the interest was to be divided among four while four were living, among three while three were alive, and nothing was to go to the children while any of the mothers were living.

And the same construction has prevailed even where the ulterior devise was not in terms, after the decease of the survivor, but after the decease or the deceases of the prior legatees; it being considered that the property is not to go over until the decease of all the legatees, though the words, especially in the latter case, might seem to admit of being construed after the "respective" deceases, if the Court

(1) 3 B. C. C. 215. See also Doe d. Calkin v. Tomkinson, 2 Mau. & Selw. 165.

had felt particularly anxious to avoid the rejection of the CHAP. XXXII. words creating a tenancy in common.

Thus in Tuckerman v. Jefferies (m), where the testator devised to A. and B., to be equally divided between them during their natural lives, and after the deceases of A. and B. to the right heirs of A. for ever: it was held, that they were joint tenants, notwithstanding the words "equally to be divided;" it being considered that the whole was to go over to the heirs of A. at once on the decease of the survivor, not that they should take by moieties at several times.

cease of E. and

G." read after

decease of sur

vicor.

So, in the case of Pearce v. Edmeades (n), where a testa- "After detor bequeathed the residue of his estate to trustees, in trust to pay the interest, dividends, and produce thereof to his daughter M. for life, and after her decease unto and between her two children E. G. and G. G., during their respective lives in equal shares; and from and after the decease of the said E. G. and G. G., upon further trust, to pay or transfer and divide the same unto and between all and every the child or children, if more than one, of the said Elizabeth Goldsmith and George Goldsmith, in equal shares; and if but one, then to such only child, and if there should be no child of the said E. G. and G. G., living at the time of their decease, or born in due time after the death of the said G. G., then upon further trust, for the testator's legal personal representatives. The testator and E. G. died, the latter leaving children, whereupon the entire income was claimed by G. G. as the only survivor; and Lord Abinger, C. B., held that he was entitled. has been settled," said bis Lordship, "by a series of decisions, that the words 'respectively,' and 'in equal shares,' when not controlled by other words in a will, shall be taken to indicate the nature of an estate or interest be(m) 3 Bac. Ab. 681, 6th Ed. (n) 3 You, & Coll. 246.

"It