1 For New York see the R. P. L. § 56. - Ed.
Spencer had become the assignee of Ward. The two estates, viz.: that of Stephen Spencer reserved in the lease, and that of Ward in
Stephen Spencer's moiety of the land, were united in Apollos Austin and he became the owner of the moiety of Stephen Spencer and a tenant in common with Gideon Spencer with all the right of property vested in him that was vested in Stephen Spencer at the date of the lease. The right of Austin to the rent in arrear was not satisfied by the union of the two estates; he still had a right to enjoy his moiety of the land, as well for the rent in arrear as for the accruing rent. Gideon Spencer, at the time of the execution of the lease by him and his co-tenant Stephen Spencer to Ward, had no title to or interest in Stephen Spencer's moiety of the premises; he derived none from the joint lease to Ward, nor from the subsequent assignment and conveyance by which Austin became the owner of Stephen Spencer's moiety of the premises; and it is clear that Austin is entitled to the free use and profits of his moiety of the lands, and to an equal lien and charge for the Stephen Spencer rents, upon the property in the same manner and to the same extent as the orators. We are entirely satisfied with the result, for it appears to be in accordance with the intention and understanding of the parties as disclosed by the testimony in the case. It is not reasonable to suppose that the Spencers, by uniting in the execution of the lease to Ward, intended to affect their separate rights in the estate, or the rights of their grantees, nor will equity allow the orators to extend their security over the whole land when so manifestly contrary to the intention of the parties. * * *
The decree of the chancellor, by which the orator's bill was dismissed, is affirmed with costs to the defendants. * * *
3. Estates in Coparcenary.
1 Conference Reports (N. C), 291. - 1801.
The will of Rufus Mersden gave to his wife the use of certain lands for life and after her death to the use of his "three daughters, namely, Hannah, Alice and Peggy, and to their heirs, executors, administrators and assigns forever, and to no other use or uses whatever." Hannah married and both she and her husband died before the widow, leaving a child, Alice, one of the complainants herein. The widow died in 1758, leaving her daughters, Alice and Peggy, and her grandaughter Alice surviving. Peggy married in 1785, and is now deceased, leaving her husband and a son, both of whom are defendants herein. The daughter Alice and John Lorden, husband of Peggy, are in possession of the land. Complainant claims one-third part of the premises and an account of the profits accrued since the death of the life tenant. Defendant demurred on the ground that the daughters were joint tenants and that therefore complainant has no claim to a share of the land. If they took as co-parceners or tenants in common, complainants could succeed.
By the Court. - It is not doubted but that if a person devises land to one who is his next heir, and his heirs, the devise is void, and the heir shall take by descent; or if a testator devise that his lands shall descend to his son, the devise is void, and the devisee shall be in by descent. Powell on Devises, 427, 428, and the authorities there cited. 1st. Because it was for the benefit of creditors. 2d. Because the lord would have been defrauded of the fruits of his seigniory, the consequence of descent. But wherever the devise makes an alteration of the limitation of the estate, from that which takes place in the case of descent, then the principle ceases to operate, and the heir takes by purchase. Pow. Dev. 439. In the present case, if the lands, etc., had descended to the three daughters, they would have taken as coparceners. Survivorship therefore never could have taken place between them. But the testator, after giving a life-estate to his wife in the premises, gives, grants, etc., the use of them to his three daughters, named Hannah, Alice and Peggy, and to no other use or uses whatsoever.
It is admitted that the words made use of in this devise, in feudal times, would have created an estate in joint tenancy - the reason assigned why joint tenancies were favored in those times is that it prevented a multiplication of tenures. But it is said that as the feudal tenures wore off this rule has been gradually departed from - that the intent, and not the words, should form the rule of decision. It is true that joint tenancies are less and tenancies in common are more favored than they anciently were, particularly where a father is making provision for his children, and makes use of any words, which a court can properly lay hold of and make instrumental for that purpose. 1 P. W. 14, 2 Atk. 122; Cowp. 660, 2 Ves. 252, 256; 3 Atk. 731. But every one of the cases proves that an estate created by the same words that arc made use of in the present instance must be a joint tenancy. The ground of decision in every one of them was particular words made use of, from which the court colletcted an intent in the devisor to create a tenancy in common; such as, "equally to be divided, etc.," "respectively, etc." But we know of no case even in a will, or in deeds which derive their operation from the statute of uses, where the same or similar words are not made use of, that a similar determination has taken place; so that these cases are rather exceptions to the general rule; and as no words are made use of here that can bring the case within any of the exceptions, it must be considered a joint tenancy.
Can it be presumed, in the case of Regden v. Valliers, as reported in 2 Ves. 252, and 3 Atk. 731, above cited, that Lord Hardwicke would have made the same determination, had the words "equally to be divided between them" not have been made use of in this deed? Or would his reasoning have been applicable to the case had these words been omitted? Although the reasons that formerly-favored joint tenancy do not hold now so strong as formerly, yet the rules to which they gave rise in many respects exist (Pow. Dev. 355), although frequently inconveniencies are felt from them. We therefore think that the words made use of in this devise create a joint tenancy, there being no particular circumstance or words in it from which an intent can be collected that the testator meant to convey a tenancy in common. Pow. Dev. 439; Cro. Eliz. 431; 2 Vern. 545; 3 Lev. 127, 128; Co. Litt. 189; 1 Lev. 112.