
    Samuel Campbell & uxor versus Alice Heron, Widow, John London and John London, jun.
    
    ON the fifth day of March 1749, Rufus Marsden, of Wilmington, made his last will and testament, which amongst other things, contained the following clauses. “I give, grant, devise and bequeath, unto my loving wife, Alice Marsden, all "my houses and lots in the town of Wilmington, “in the province of North-Carolina, to have and to “hold to her, my said wife, Alice Marsden, for “and during the term of her life; and after her “decease, to the use of my three daughters, named "Hannah, Alice and Peggy, and to their heirs, “executors, administrators and assigns for ever, “and to no other use, or uses whatsoever.
    A devise to the wife for life, with remainder to the testator’s three daughters (his heirs at law) their heirs, executors and administrators, makes them joint-tenants.
    
      “Item. I give, grant, devise and bequeath unto “my loving wife, Alice Marsden, all my personal “estate, of what kind and nature whatsoever; and “after her decease, to the use of my three daughters, Hannah, Alice and Peggy, to their heirs, “executors and assigns for ever, and to no other “use or uses whatsoever.” Shortly afterwards the testator died, leaving his widow and three daughters, mentioned in the will.
    In 1754, Hannah, one of the daughters, intermarried with Arthur Mabson, by whom she had issue, Alice, one of the complainants, and shortly afterwards died. In 1758, Alice Marsden, the widow of Rufus, died, leaving her two daughters, Alice and Peggy, and grand-daughter, Alice, the complainant.
    In 1765, Alice, the daughter of Rufus, intermarried with Benjamin Heron, who shortly afterwards died.
    In 1785, Peggy, the other daughter, intermarried with John London, one of the defendants, by whom she had issue John London, the other defendant, and shortly afterwards died.
    In 1772, Alice, the complainant, intermarried with Samuel Campbell, the other complainant.
    After the death of Alice Marsden, the widow of Rufus, her surviving daughters possessed themselves of the estate, and have ever since continued in the enjoyment of the same, together with its rents and profits.
    
      The complainant, Alice, insists that by the devise aforesaid and the death of Alice, the widow of Rufus, she became entitled, together with her aunts, Alice and Peggy, to the estate disposed of in the will.
    The bill was filed in Wilmington Superior Court of Equity, in March 1797, praying for a partition and division of the estate, and an account of the rents and profits.
    The defendants demurred to the bill, on the ground of want of title in the complainants, by their own shewing; as the words of the will constituted a joint-tenancy and not a tenancy in common.
    The cause was continued until November Term, 1801, when it was called on for trial before Hall, Judge, who, being informed that much property depended on the decision, consented that it might be transmitted to this court.
    
      Wright, in support of the demurrer.
    The case before the court may seem to derive an importance from the amount of property contended for; and from no solemn decision having taken place in this state, upon the question which arises out of Marsden’s will. But, though important, it is far from being difficult; for I entertain no doubt of establishing to the entire satisfaction of the court, two propositions, upon which I shall rest the defendant’s cause: first, that the devisees in the will of Marsden, took by purchase, and not by descent: secondly, that they took as joint-tenants, and not as tenants in common.
    I. It is conceded, that where the heir at law takes neither more nor less by the devise, than he would have taken without it, he is in by descent; for reasons, however, which are not applicable to the tenures of land in this state. But if the ancestor devises his estate to his heir at law, with other limitations than the course of descent would direct, the heir takes by purchase. As if a man, having issue, a son and daughter, devise that his land should descend to his son, and if he die without issue of his body, then the land to go over, &c. here the will creates an estate tail in the son; therefore he takes by purchase; Hob. 29. 30. So it is, if a man having two daughters, who are his heirs, devise his land to them and die, they shall have it as joint-tenants by devise, and not as coparceners by descent; because the devise gives it to them in another degree than the common law would: by the common law, each would have had a distinct moiety, but by the devise each has an undivided moiety of the whole, and the survivor shall have all. Croke Eliz. 431. The words made use of by the devisor, are such as convey an estate in joint-tenancy, the incidents and qualities of which, differ from those of an estate in coparcenary. Parceners cannot have an action of waste against each other by the Stat. West. 2: nor can they have an action of account by 4 Anne, as joint-tenants and tenants in common may. Parceners alone were compellable by common law, to make partition; they are entitled each to the whole of a distinct moiety, and survivorship does not take place between them. Whenever, therefore, an estate is devised by words, which constitute either an estate in common, or in joint-tenancy, though to the persons who are the heirs of the devisor they take by purchase and not by descent.
    
      II. They take as joint-tenants, and not as tenants in common. Joint-tenancy was anciently favoured by the law; and although the reasons which induced a constructon of deeds and wills that tended to the support of joint-tenancy, do not exist with the same force as formerly; yet the rule is still the same: that wherever the estate is given to two or more, without explanatory words, the persons to whom the same is given, take as joint-tenants; for notwithstanding the reasons have failed, upon which the rule is founded, the rule itself still exists; in the same manner as many other rules of law are in force, though the reasons upon which they are built, have ceased to operate; Powell on Devises, 356. That the words in Marsden’s will create a joint-tenancy, is incontrovertibly proved by the following authorities: 3 Lev. 127. 1 Leon. 112. 113. 315. Coke Litt. 189. b. note 3. And no instance can be produced, where such words, without some others severing the estate, were held either in law or equity to make a tenancy in common. Indeed the construction of wills, is the same both at law and in equity; 2 Burr. Rep, 1108. 2 Brown, 233. 3 Bl. Com. 435. It is therefore concluded that both grounds are in the defendant's favour.
    
      Haywood, for the complainant.
    That the rule antiently was as it is contended for by the defendants’ counsel, cannot be denied; but when we reflect upon the artificial reason which gave rise to the rule, and how completely it has ceased to have any operation, especially in this state, justice requires that it should give place to some other in construing this will. The law favoured joint-tenancy, because it did not encourage fractions of estates, divisions of tenures, or multiplication of services; as long as joint-tenancy continued, the tenure was joint, but when it became in common, the tenures and services were several. This, though conformable to the spirit of the feudal system, can no longer be urged as a practical reason in England; and with still less propriety here, where the tenures of real estates are regulated by a system totally and essentially different. Accordingly, as the feudal system wore off, the rule was gradually departed from, until the intent of the parties, and not the words, has made a tenancy in common, what before would have been considered a joint-tenancy. Thus in the surrender of a copy-hold, the court regarding the intention of the surrenderor, decided that the words “equally to be divided,” made a tenancy in common; 1 P. W. 14. So in 2. Atk. 121, the words “to and amongst the “children respectively” were construed in the same manner; and this case shews, how little joint-tenancy is now favored, in a Court of Equity. The word “equally” in Cowper, 660, was adjudged to denote a tenancy in common. Nor do the courts in any case, decide in favor of a joint-tenancy, if there be any words in the deed or will indicative of the party’s intention to create a tenancy in common; 1 Salk. 158. 192. 259. 3 Atk. 731.
    If then, the intention of the testator is to govern the construction of this will, there are several circumstances, unequivocally shewing he meant a tenancy in common.
    1st. He was making a provision for his children, all he had, and all, equally, objects of his bounty; he never could intend that if Hannah died, leaving children, they should have nothing; yet such will be the consequence, if the defendant’s construction is supported; 2 Vezey, 252.
    2d. The testator was a layman, unskilled in the legal import of words; he has therefore thrown in a number, trusting that from some of them his intention might be extracted: of this kind, is the word “executors.” He must have meant the executors of any one of his children who should die—But it could not go to the executors of Hannah, if it were to survive on her death—The same remark is applicable to the word “administrators.”
    3d. “To no other use or purpose.” If it survives, does it not go to those who are not the heirs of Alice, to her sisters instead of her child, thereby frustrating the plain meaning of the words?
    4th. “Heirs, executors, administrators or assigns,” are the very words used by the legislature, in converting joint-tenancies into tenancies in common; Iredell, 489.
    5th. In the clause relative to the personalty, the same words are used, and no one can doubt the testator’s intention, that the part of each child should go to her executors, consequently that a will might be made of it, and for want of a will that it should go to administrators. The same words in the same will must of necessity have the same meaning.
   By

the Court.

It is not doubted but that if a person devise lands 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. Pow. dev. 427, 428, and the authorities there cited, 1. Because it was for the benefit of creditors; 2. Because the lord would have been defrauded of the fruits of his seigniory, the consequence of descent. But whenever the devise makes an alteration of the limitation of the estate, from that which takes place in the course of descent, there the principle ceases to operate, and the heir takes by purchase; Pow. dev: 439. In the present case, if the lands &c. had descended to the three daughters, they would have taken as coparceners; survivorship, therefore, never could have takes place between them: but the testator after giving a life estate to his wife in the premises, gives, grants &c. 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 made 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 were 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 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 these cases proves, that an estate created by the same words, that are made use of in the present initance, must be a joint-tenancy. The ground of decision in every one of them was, particular words made use of, from which, the court collected an intent in the devisor, to create a tenancy in common; such as “equally to be devised “&c. respectively &c.” But we know of no case, even in a will or in deeds, which derive their ope ation 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 Rigden versus Vallier, as reported in 2 Vesey 252 & 3 Atk. 731. above cited, that Lord Hardwick would have made the same determination, had the words “equally to be divided between them,” not have been made use of in the 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 Levinz., 127, 128. Co. Litt 189, 1 Levinz 112.

Bill dismissed with costs. 
      
       Taylor, J. gave no opinion, having been of counsel in the case.
     