3 Maryland, 190. - 1852.
Ejectment to recover an undivided third part of certain lands. The question involved arises under the will of Henry Hollingsworth, the material part of which is set forth in the opinion. Hollingsworth left two children by his first and four by his second wife. These six children partitioned the land amongst themselves by mutual deeds and the parcel in question was allotted to Anne, one of the second wife's children. Anne died seised, intestate and without issue. Her half-sister, Mary, her sister of the whole blood, Elizabeth, and children of another sister of the whole blood survived her. The plaintiffs are the heirs-at-law of Mary, who died after Anne's decease, and they claim an undivided third as against Anne's relations of the whole blood, who are defendants.
Tuck, J., delivered the opinion of this court.
The will of Henry Hollingsworth contained the following clause: "All the rest and residue of my estate, real, personal or mixed, whatsoever or wheresoever, I give, devise and bequeath, to be divided amongst all my children, in equal shares and portions, to them, their heirs and assigns, forever." He left children of the whole and of the half blood. If his children took by descent, and not by purchase, the plaintiffs are entitled to recover, being of the half blood; if, on the contrary, the property passed by the will, the defendants, being of the whole blood, must succeed.
' Where the same quantity and quality of estate is devised, that the devisee would have acquired by descent, the title passes by the worthier title - by descent, and not by purchase." 7 Gill & Johns. 70; 2 Hilliard on Real Prop. 528, 529. The only inquiry, then, would seem to be whether these devisees took the same estate as if their father had died intestate? Estates in joint-tenancy, coparcenary, and in common, are different from each other. We need not mention the well-recognized distinctions. It may be conceded, as contended in argument, that for most practical purposes in this country, there is no real difference between coparceners and tenants in common, yet they are different as legal estates, and their qualities and incidents are not the same. Tenancies in common and joint tenancies are recognized by the act of 1822, ch. 162; and estates in coparcenary by the Court of Appeals in the case of Hoffar v. Dement, 5 Gill, 132, where it is said: "In Maryland the children of parents who die intestate, seized in fee in lands, etc., take as coparceners, and are so treated by the act of 1820, ch. 191, sec. 5." The same principle applies to persons inheriting in virtue of the act of 1786, ch. 45. They all constitute but one heir. Suppose, instead of the words employed in this clause, the will had devised this residue to the children, as tenants in common, can it be doubted that they would have taken as devisees, and not as heirs-at-law? 3 Anstr. 727. These words are not used, but terms of the same import are. In wills the expressions, "equally to be divided," "share and share alike," "respectively between and amongst them," have been held to create a tenancy in common. 2 Bl. Com., ch. 12, note by Chitty, and in 2 Powell on Devises, ch. 18, pages 370, 371, it is said: "It may be stated generally that all expressions importing division by equal or unequal shares, or referring to the devisees as owners of respective or distinct interests, and even words simply denoting equality, will have this effect." He also states several examples and references. We are referred to 4 Kent Com. 367, as an authority to show that in this country, where primogeniture does not exist, the technical distinction between coparcenary and estates in common may be considered as essentially extinguished. This, however, is not the law in this State, for, as we have seen, these estates have been recognized by the legislature and by the Court of Appeals.
But the question has been expressly decided in England. At common law it could not arise, except where the ancestor died without male heirs, or where lands descended to all the sons according to the custom. Where a testator seized of lands in fee, being of the nature of gavel-kind, devised them to his heirs, by the custom and to their heirs equally to be divided amongst them, the question was, whether they should be in by descent or devise? Anderson, J., held that without the words "equally to be divided amongst them," they would be joint tenants, and that With these words they were tenants in common, but, in either case, that they took as heirs, and the other justices concurred. Bear's Case, I Leon. 112, 315.
This case is quoted as authority in I Powel, 428, and I Jarman on Wills, 68. See also Packman v. Cole, 2 Sid. 53, 78, to the same effect. And so in Cro. Eliz. 431, a man having two daughters, being his heirs, devised his land to them and their heirs. "The question was whether they took as joint tenants by the devise, or as coparceners by descent?" And all the justices held clearly that they took as joint-tenants. If, therefore, the will creates a joint tenancy, or a tenancy in common, the property does not pass to the devisees as heirs-at-law, but as purchasers under the will.
It is contended that the distinction is merely technical, and does not affect the enjoyment of the estate, whether held in coparcenary or in common, as in Maryland there is very little, if any, difference between these titles, and we are told that this distinction should not avail against the rule on which the appellants rely to convert this devise into an inheritance. This argument may be applied the other way with as much force. When a will is made the presumption is that the testator intended that the estate should pass by devise and not by descent. This design, however, is sometimes frustrated by rules of law, which is sought to be done in the present case, by one for which there are not the same reasons under our laws as in England. I Powel, 421. This rule is as technical as the other. However, it exists, and we have no disposition to disregard it, but we think it does not apply in the present case, as the will does not pass the same estate in quality and quantity that the devisees would have taken as heirs-at-law.