
    *Wilson and Marsh v. Fleming et al.
    "Where an equitable estate is conveyed to husband and wife, they hold as tenants in common. Upon the wife’s death, the husband surviving, he does not take the whole by the survivorship, hut her moiety descends to her heirs.
    So, if the husband die first, the wife does not take bysurvivorship, but a moiety descends to his heirs.
    The husband may, during the life of the wife, convey a moiety of such estate.
    There is no case in Ohio where one takes the whole estate by survivorship, as in joint tenancy.
    This is a bill in chancery from Muskingum county.
    The state of the case is this : George Jackson contracted, under band and seal, to convey to his son, William L. Jackson, and his wife, Harriet Jackson, their heirs and assigns, certain land, described in the bill. He also devised to his said son ono-eighth part of all his estate. The father died in 1831.
    In 1834, the son, William L. Jackson, executed a deed of trust of the land in question, and all his interest in his father’s estate, to one of the defendants, Jesse Jarvis, to secure the debts of certain creditors, who are made defendants.
    In 1836, William L. Jackson died, leaving the said Harriet his widovv. She has since intermarried with the defendant, Stench-comb. In one aspect of tho bill, it seeks to subject the land, so contracted tobe conveyed, to the payment of the creditors named in the deed, among whom are the complaiuants.
    The complainants claim that, by the agreement to convey, William L. Jackson and his wife became tenants in common of tho estate thus created, and that the undivided moiety thereof, by the deed of trust, passed to the trustees, and is subject to the debts of the complainants, and tho other creditors named in the conveyance.
    The defendant, Stenchcomb, contends that, on the death of her husband, the said Harriet took the entire equitable estate. This is tho controversy.
    *Goddard and Convers, for complainants:
    Wo claim, on behalf of the complainants, creditors under the deed of trust of William L. Jackson, deceased, mentioned in the bill, that, by the agreement of George Jackson, binding himself to convoy the land therein mentioned to his son, William L. Jackson, and Harriet Jackson, wife of William L., they became tenants, in common, of the equitable estate thereby created, and that, therefore, tho one undivided half of that estate passed to the trustee named in the deed, and is subject to tho claims of these complainants, and the other creditors provided for in tho deed of trust.
    If tho land had boon conveyed by an instrument of proper form to pass tho legal title, as by a deed or will, executed with the formalities proscribed by law, the case would not admit of doubt. The law, as applicable to gifts of land to husband and wife, when limited by a conveyance in legal form, was declared, as long ago as the yoar 1825, by this court, in the case of Sergeant v. Steinberger, 2 Ohio, 305, in which the question was presented upon a devise to husband and wife. For almost twenty years this decision has been regarded and acted upon as a rule of property. It will not now be disturbed, although the reasoning in support of that decision may not be entirely satisfactory
    It is claimed, however, that inasmuch as the agreement in the case before the court is executory only, the instrument not being a formal conveyance at law, the court will apply a different rule. It is true that, in certain special cases, a court of chancery, when called upon to decree trusts to bo settled by formal conveyances and declarations of trusts, in pursuance of articles merely executory, it will depart from the particular forms of expression contained in the executory articles, and direct other words to be employed in the formal instruments, when such departure is necessary to carry into effect the intention of the parties. But then this intention must clearly appear from other language contained in the writing itself. In executory agreements, technical words, *whose signification has been fixed by judicial interpretation, are always taken in a technical sense, unless otherwise declared. The example pat in argument is not correct. Where the executory agreement is to convey “to a man for life, and remainder to his heirs,” a court of equity, in carrying such agreement into effect, will not depart from tho words of this limitation, but will direct a conveyance, with the limitation, in the same words; and thus lot in the rule in Shelley’s case, unless it appears expressly, from other parts of the agreement, that it was tho intention to give tho estate to the first taker for life only, and no longer. It must appear, from tho agreement itself, that the parties did not intend the rulo should apply; otherwise, a court of equity can not assume to say that the words have been used in a sense different from their technical meaning in a formal conveyance.
    It is with a court of equity, in such case, a question of intent, and the intent must clearly appear to be different from that which the words technically impute; otherwise, it will be taken for granted that the words are used in their technical and legal signification.
    But in the case b’efore the court, there is nothing whatever in the agreement of the father showing that his intent was at all different from that which this court declares to bo the intent, in the case of Sergeant v. Steinberger, 2 Ohio, 305, before referred to. He uses tho same language employed in that case, and nothing more. This court can not say that tho intent is different from that which tho court has heretofore declared is expressed by the same words. It is suggested that tho agreement of tho father was a voluntary gift, but there is no evidence of this.* There is nothing to distinguish the transaction, as it now stands before the court, from an ordinary purchase by husband and wife, and such it must bo taken to bo. There is less reason, therefore, for considering it as a provision for the “united family,” than if it were a gift either by deed or will.
    And yet, in case of a gift by will, it was decided, in the above case, in 2 Ohio, that the husband and wife wero tenants in common.
    W. A. Adams, for defendants:
    I claim for Mrs. Stenchcomb, that, upon the death of her late husband, William L. Jackson, the whole of the land belonged to her, and that she is now entitled to the whole of the land, notwithstanding the deed so executed by William L. Jackson.
    If an estate is given to a man and his wife, they are neither joint tenants nor tenants in common; for husband and wife being considered one person in law, they can not take the estate by moieties, but both are seized of the entirety, per tout et non per my-The consequence of which is, that neither the husband nor wife can dispose of any part, without the assent of the other, but the whole remains to the survivor. 3 Bl. Com. 181. And if a grant is made to husband and wife and a third person, the husband and wife shall have one moiety, and the third person the other. 3 Bl. Com. 181; Lit. 291.
    The doctrine of survivorship is abolished in several states, by express statute — in New York, Tennessee, Kentucky, etc. But this destruction of joint tenancy does not apply to conveyances to husband and wife, which, in legal construction, by reason of the unity of husband and wile, are not joint tenancies, but conveyances to one person; and the survivor takes the whole; and neither, during their joint lives, can alien, so as to bind the other.
    The same words which would make two other persons joint tenants, will make husband and wife tenants of the entirety. This is the old law, and continues to this day. 4 Kent’s Com. 362; 2 Kent’s Com. 132; 1 Dana, 37, 243.
    And this is the law of Ohio, notwithstanding the case in 2 Ohio, 305; for I claim that the doctrine of that case is not law, and I ask the court to reconsider the question there decided. It is evident, from the language used by the court in that case, that the matter was not fully understood, or so strange a determination could not have been made. Our ^partition statute only impliedly destroys joint tenancies. It provides that joint tenants may be compelled to make partition. This statute surely can not be construed to compel the severance of an estate owned by husband and wife. The court would not entertain a petition by a husband against his wife, to have partition of an entirety. If not, then all the reasoning of the court fails; for it all proceeds upon the implied destruction of the estate of joint tenancy, and the doctrine of survivorship. But husband and wife are not joint tenants; nor is there any survivorship, for there is but one person. The law, as I claim it, Kent says, continues to this day. It may, as the court say, as to joint tenancies, “ be adverse to the understandings, habits, and feelings of the people:” So are a great many other provisions of the common law, which every lawyer knows to be the law of tho land ; as the rule in Shelley’s caso. So may a statute be adverse to the feelings and habits of tho people. And statutes often are so. But the legislature, and not tho courts, must make the correction.
    Besides, the contract in this case is not executed; and it is necessary that a court of equity should interpose, before a legal title can be had of the land in question. This court will look at the true intention of tho parties, and construe a contract accordingly, though a different construction would be given to tho same words, if employed in a deed, or strictly legal instrument. For instance, if a contract is made to convey land to a man for life, remainder to his heirs, and a court of equity was called upon to enforce that contract, tho court would decree a life estate only to the complainant; whereas the same words, in a deed, would be construed, by the same court, to convpy a fee simple.
   Wood, J.

That, between husband and wife, this was an equitable and not a legal estate, can make no difference, provided the intention to create such legal estate is clearly manifest from terms of the contract.

*It- is said in this case by the defense, that although bus-band and wife, by reason of their unity, can not hold an estate as joint tenants, nevertheless, on the death of either, the other takes, by survivorship, tho whole estate.

Can this principle be maintained? The jus accressendi prevails among joint tenants only, and, when there is no such estate, there is no such survivorship, that is, survivorship for the exclusive bonofit of the survivor; for, though partners may hold by survivor-ship, they hold as trustees for others, as well as (or themselves, and not as joint tenants at common law. Are husband and wife an exception to the general rule ? It has been so decided in some of the states; but the reasoning by which it is sustained is subtle and too much refined; for, while it is admitted that estates in joint tenancy are prohibited by statute, and that husband and wife, by reason of their unity, can not hold in that character, they are treated as quasi joint tenants, and the doctrine of survivorship applies.

It would become necessary to give to the whole subject a more extended research, and a more thorough investigation, wore it not for the decisions Of our own courts, and our well-settled convictions that they are sound law, and therefore ought not to bo disturbed.

In Sargeant and wife v. Steinberger et al., 2 Ohio, it was held that estates in joint tenancy did not exist under our law ; and, say the court, it has been so repeatedly adjudged upon the circuit. "We have, they remark, various statutory provisions inconsistent with any such principle as the right of survivorship, and a joint tenancy of husband and wile is at variance with our law. The court also decide that, under a devise to husband and wife, in caso of her death, her children inherit her undivided moiety, and that they hold it as tenants in common with their father. This decides the case at bar. In Lessee of Mills v. Fisher, 10 Ohio, 1, this court hold that estates in joint tenancy had no existence here. They are, in fact, no longer favorites of the common law in England; for, although they wore, Lord Holt, in 1 Salk. 391, gives us the reason. It was the right of survivorship. *Its policy was averse to the division of tenures, because it tended to multiply feudal services, and weaken the efficacy of that connection. But Lord Hard-wick, long after, in 1 Wils. 165, declared the reason had ceased with the abolition of tenures.

We entertain no doubt that such estates, and their concomitant incident, the right of survivorship, are utterly inconsistent with the genius and spirit of our laws.

It is suggested that this contract to convey was voluntary, and the execution of it, for that reason, can not be enforced in equity. The principle is sound, but the fact is not so. The agreement is under seal, and imports a valuable consideration.

Let a decree be entered for the execution of this trust.

Decree accordingly.  