
    John A. Butler vs. Margaret Butler. Same vs. Mary E. Byrne.
    Law Nos. 22,885 and 23,178.
    5 Decided November 13, 1882.
    
      i The Chief Justice and Justices Cox and James sitting.
    1. A mere devise to two, as to, “William Joseph and John A. Butler,” without more, would create a life estate in joint tenancy.
    2. But whether such a devise after a previous devise of the same property for life is to be considered a life estate merely, or an estate in fee, or a joint tenancy, or a tenancy in common is to he controlled by the intention of the testator as gathered from other parts of the will.
    3. Where the context of a will gives to language employed in one clause a particular meaning, the court will give the same meaning to the same language employed in another clause.
    STATEMENT 0E THE CASE.
    Abraham Butler being seized of lot 23 in square 254 in the city of Washington, died leaving his last will and testament. The clauses relating to this piece of property reading as follows :
    “I give and bequeath to my wife Sarah Butler for and during her natural life, the house and lot I own situated on the north side of E street between 11th and 18th streets, square number 290 in the city of Washington, and occupied by R. C. Washington, as my tenant, also the “ Miller House” situated on the south side of E street and between 13th and 14th streets and adjoining the house in which I now reside, also the house in which I now reside, situated on E street, between 13th and 14th streets ; both of said houses are in square number 254 in the city of Washington. * * * *
    “And after the death of my said wife I give and bequeath to Elizabeth Catharine Earhart, my daughter, and to my son Eerdinand Butler, and to my daughter Mary Virginia Butler, the house and lot situated on the north side of F street between 11th and 12th Btreets, square number 290, and now occupied by R. C. Washington as my tenant, together with the piece of ground purchased by me from Henry Turner, to drain the same, and after the death of Eerdinand Butler and his daughter Sarah Bútler, I desire •and request that the interest in property bequeathed to said Ferdinand Butler, shall then revert to my heirs-at-law.. *
    “And after the death of my said wife Sarah Butler I give ■and bequeath to my sons William Joseph Butler and John A. Butler the house and premises herein described and known as the “' Miller House ” adjoining the house in which I now live, also the house in which I now live, and the house known as the “ Pat Dulany House,” situated on the west side of 13th street, between E and F streets, which said house I give and bequeath to my said wife Sarah Butler, during her natural'life.” * * * * * '*
    After the death of the testator, William Joseph Butler, •one of the devisees named in the will, also died, leaving a last will whereby his wife, Margaret was made sole devisee ■of all his property, real and personal.
    After the death of his brother William, John A. Butler brought these actions of ejectment to recover the whole property as surviving joint tenant. The cases were consolidated and submitted to the court below on an agreed statement of facts which raised the question whether John and William, under the devise of Abraham Butler, held this property as joint tenants or tenants in common. The court helow found that they held as tenants in common.
    W. D. Davidse and John F. Riley for plaintiffs:
    There is in the will no language employed and nothing to indicate any severance of the estate ; it is such language as plainly means and has been interpreted in all the authorities to pass an estate in joint tenancy.
    “ Where lands are granted to two or more persons, except husband and wife, without any restrictive, exclusive or explanatory words, all the persons to whom lands are so given take as joint tenants.” Greenleaf’s Cruise, Title 32, Cap. 22, § 43; 3 Jarman on Wills, 1, and authorities cited; Martin vs. Smith, 6 Am. Dec., 394; 5 Binn., 16; Cowle on Devises, 356; Coke on Litt., 187 b, note 3; 2 Burrows’ Reps., 1108; Crook vs. De Vandes, 9 Vesey, 197, and cases cited in note b.
    
    
      The case of Campbell vs. Herron (1 Taylor, N. C., 199) is exactly in point. The testator devised to his wife for life and after her death to his three daughters and to their heirs,, exectitors, administrators and assigns forever. It was there held that the daughters took the remainder in joint tenancy.
    This rule is as well recognized in equity as in law, as the above cases cited show.
    Such words of severance as “to be equally divided between them,” Griswold vs. Johnson, 5 Conn., 365 ; “divided equally among her children,” Whiting vs. Cook, 8 Allen, 63; “to be equally divided between them, share and share alike,”' Parks vs. Knowlton, 14 Pick., 432, Emerson vs. Cutler, 14 Pick., 108, Allison vs. Kurtz, 2 Watts, 185; “in equal shares,” Gilpin vs. Hollingsworth, 3 Md., 190; “share and share alike,” 17 Serg. & Rawle, 61, and numerous other cases-where such or equivalent language is used, have been held to-make an estate granted or devised a tenancy in common instead of a joint tenancy, as it would have been without such words.
    All these cases show that an estate created by such words-as are made use of in the case on trial must be a joint tenancy. The ground of the decision in all such cases is-that particular words were used from which the court collected an intention in the testator to create a tenancy in common.
    The only variation of the rule to interpret such language as devises the “Miller House” and the “Pat Dulany House” to the two sons as passing a joint tenancy is where statutes-have substantially abolished such an estate or made express-provision for changing the interpretation adopted at common law. In our jurisdiction there has been no change of the common law, and estates in joint tenancy have been repeatedly recognized. Maybury vs. Brien, 15 Peters, 21; 4 Kent, 400, and authorities cited.
    Nothing is better established than that the intent of the testator is to govern the construction of his will. It is,, however, such an intention as may be gathered from the language of the will itself, and hence it is the legal intention, and not the actual intention which the law seeks after.
    A general or moral view or fancy of the intention of the testator, unless expressed in the will as controlling the devises, may not be sought after, and however agreeable to a sense of the fitness of things and equality in division among beneficiaries, has no force in the interpretation of unequivocal language. Allen vs. Allen, 18 Howard, 385; Miller vs. Travers, 8 Bingham, 244; Walston’s Lessee vs. White, 5 Ind., 297; 4 Kent, 631; Martindale vs. Warner, 15 Penn., 471; American Bible Society vs. Pratt, 9 Allen, 109.
    R. T. Merrick and J. J. Darlington for defendants:
    The old common law doctrine of joint tenancy, with it» incident of survivorship, has been abandoned in every State and territory in the United States, unless it be held that it still lingers in the District of Columbia. Nor has express statutory provision been held necessary to its abolition. Sergeant vs. Steinberger, 2 Ohio, 306; see, also, Miles vs. Fisher, 10 Ohio, 1; Phelps vs. Jetson, 1 Root, 48; Lowe vs. Brooks, 23 Ga., 325; Nichols vs. Denny, 37 Miss., 59.
    Unless the reasoning of these eases shall be disapproved of by this court, estates in joint tenancy n,o more exist here than in Ohio, and the other States noted above. For not-only have we “ no statutes recognizing the existence of any such principle as the right of survivorship,” but we, too, have laws authorizing joint tenants, as well as tenants in common, to demand and have partition.” "See Md. Act of 1794, ch. 60, sec. 8; Act of 1797, ch. 114, sec. 5.
    Nor does there seem to be any reported case, either in this court or its predecessors, or in the Supreme Court of the“ United States, in which the right of survivorship has been recognized and enforced in this District. And the act of August 15,1876, providing for compulsory partition between “ all tenants in common and coparceners of any estate in lands, tenements or hereditaments, equitable as well as legal, within the District of Columbia,” not only does not recognize, but ignores, the existence of estates in joint tenancy here.
    
      But, if this court shall be unwilling to adopt and follow the reasoning of the very respectable courts cited above, it is established by an overwhelming and unanimous mass of authorities, that such estates are not to be favored, and that courts are “ to exercise their ingenuity against them.” See Martin vs. Smith, 5 Binney, 16; Evans vs. Brittain, 3 Serg. & R., 135; Galbraith vs. Galbraith, 3 Serg. & R., 392; Bambaugh vs. Bambaugh, 11 Serg. & R., 191; Chew vs. Chew, 1 Md., 168.
    To the same effect are all the American authorities, and, for more than a century past, the English authorities also.
    If it shall be held that estates in joint tenancy still exist here, we have, therefore, at least this established proposition to start with: that the devise in controversy here is not to be construed an estate of that description if there be any escape from such a construction; that the court is “ required ” as well as inclined to “ give the widest and most liberal construction ” to Abraham Butler’s will, in order to defeat the plaintiff’s claim. It is conceived, however, that, in this case, a fair and natural interpretation of the testator’s meaning, as disclosed in the will, will be sufficient for that purpose.
    Where words having a technical signification are used, but it is evident from the context that the testator used them in a sense different from their technical one, they are to be construed according to the- sense in which the testator understood them.
    And where any word is used in a will in a non-technical sense, or in a sense peculiar to the testator, the courts will construe such word in the same sense throughout the will; or, as the rule is sometimes stated, “ Words are ordinarily to receive the same construction in every part of the instrument.”
    These two rules of construction are so well established as, doubtless, to render superfluous any citation of authorities in support of them. Some illustrations of their application, however, will be given, after their bearing upon the present case has been pointed out.
    
      It will be observed that in the two clauses of the will in which the testator makes provision for the children of his first and of his second marriage, quoted above, the conveying words used are precisely the same. In the first he “gives and bequeaths” to Elizabeth, Ferdinand and Mary, and, in the second, he “gives and bequeaths” to "William and John, without either words of inheritance or words of severalty in either case.
    But, looking to the latter part of the first of these devises, it is unmistakably obvious that the testator did not understand or use these words, “I give and bequeath,” without more, in their ordinary, limited, technical sense ¡ for he goes on to provide that, after the death of one-of these three devisees, and of his daughter, the share given to him should revert to the testator’s heirs-at-law.
    It is, therefore, as evident as if the testator had expressly so declared, that he understood and used the words. “I give and bequeath,” as conveying to his children distinct interests, which, on the death of any one of them,, would pass to his child, and upon the death of that child would continue to regularly descend, unless otherwise ex-pressty limited. In other words, the testator understood and 'used the words “ I give and bequeath,” in this clause of his will, as conveying the devised property to his children as tenants in common, and in fee, except as tO' Ferdinand’s share, which was to be for his own life and that of his daughter only, and then revert.
    This being the obvious sense in which the testator understood and used the words in question in that clause of the will in which he makes provision for the children of his first marriage, it is submitted, upon principle and upon the authorities, that he must be understood to continue so to use and understand them when he comes, in the immediately succeeding clause, to provide for the children of his second marriage.
    “ Where, throughout any instrument, words are used in a peculiar sense, one part may be explained by reference to another. And ordinarily words are to receive the same
    
      •construction in every part of the instrument.” Elliot vs. Carter, 12 Pick., 442; and see Bundy vs. Bundy, 38 N. Y., 421; Kiah vs. Grenier, 56 N. Y., 220; Tucker vs. Ball, 1 Barb., 94; Breasley vs. Breasley, 9 N. J. Eq., 27; Carnagy vs. Woodstock, 2 Munf., 234; Chew vs. Chew, 1 Md., 168; Feltman vs. Butts, 8 Bush, 119; Moore vs. Moore, 12 B. Mon., 656; Van Nostrand vs. Moore, 52 N. Y., 12; Van Kleck vs. Dutch Church, 20 Wend., 471; Tucker vs. Tucker, 1 Seld., 418; Hoppock vs.Tucker, 59 N. Y., 208.
    And see also the case of Perry vs. Langley, decided by this court, and reported in 1 Mackey, 140, where the testator devised certain property to his daughters Eliza and Mary, “in trust for the benefit of their children,” the question was whether the children took per capita or by groups. The court said:
    “We have looked over the whole of this will to find out what was really intended. Now we find one clause giving to Eliza Perry, a house and lot for the benefit of her children, who were evidently looked upon as a group to which this property was given as a provision. The same course was followed in the devise of another house and lot to Mary Langly and her children, whether many or few. The testator then has one more house left, and this he gives to the same mothers for their children, and our conclusion is that he intended to regard them as groups, in this instance, j list as he had done before.”
    
   Mr. Justice Cox

delivered the opinion of the court.

These cases were actions of ejectment and depend upon the interpretation to be given to the will of Abraham Butler. He says in his will “and after the.death of my said wife, I give and bequeath to Elizabeth Catherine Earhart, my (laughter, and to my son Ferdinand Butler, and to my •daughter Mary Virginia Butler, the house and lot situated •on the north side of P street between 11th and 12th streets, square number 290, and now occupied by R. C. Washington as my tenant, together with the piece of ground purchased by me, from Henry Turner to drain the same; and after the death of Ferdinand Butler and his daughter Sarah Butler, I ■desire and request that the interest in property bequeathed to said Ferdinand Butler, shall then revert to my heirs-at-law.”

And for the children of his second marriage he provided as follows: “And after the death of my said wife Sarah Butler, I give and bequeath to my sons William Joseph Butler and John A. Butler, the house and premises herein ■described and known as the “Miller House,” adjoining the house in which I now live, and'the house known as the “ Pat Dulaney House,” situated on the west side of 13th street, between E and F streets, which said house I give and bequeath to my said wife Sarah Butler during her natural life.”

William Joseph Butler died, leaving a wife and child, and John A. Butler, having the impression that he was entitled to the whole of the property as surviving joint tenant, instituted these actions of ejectment to recover the property. 'The only question is whether he was a joint tenant ora ten■ant in common with his deceased brother.

The mere devise to the two sons William Joseph and John .A. Butler, without more, would give a life estate in joint tenancy. Such a devise, after a previous devise of the same property for life, would be considered by some courts a gift -of the fee, but it would still be a joint tenancy. But on both questions, viz., whether it be a life estate merely, and ■whether in joint tenancy, or in common, light is thrown on the intention of the testator from other parts of the will.

In the previous clause to the one in controversy, if we •omit the reference to Ferdinand Butler’s daughter, we will have a devise to a son and two daughters generally, with a provision, that after the death of the son, the interest in the property bequeathed to him shall revert to the testator’s .heirs-at-law. This implies, that according to the testator’s understanding of the general language he had already used, it would, but for this provision, go elsewhere. If he •understood the nature of a joint ■ tenancy, which is hardly -supposable, he might have thought that it would survive to the others. More probably, he thought that it would descend to the heirs of Ferdinand. And, indeed, the language the interest in. property bequeathed to said Ferdinand,”' &c., indicates that he supposed he had bequeathed a separate interest to him, and not strictly a joint interest to him and others. But this probability becomes almost certainty when we add the reference to Ferdinand’s daughter. lie gave-nothing in terms to this daughter, but directed that her father’s share after her death should revert. Did he mean by implication to give her a life estate, after a life estate which he understood he had given to her father, or did he assume that the father’s share would descend to the daughter in fee by virtue of his previous general devise, and design, by this provision, to reduce it to a life estate in her? It seems toils the latter was the testator’s intention.

lie desires and requests, not that Ferdinand’s share shall revert, but that the interest, i. e., the estate, in property bequeathed to Ferdinand, shall, after the death of his daughter,. revert to the testator’s heirs-at-law; all of which seems to-assume that the estate bequeathed to Ferdinand was such as-to descend to his daughter in fee, if not thus diverted in another direction.

It seems to usj then, that he understood his general devise-in this clause, unmodified, to have the effect, of giving an, estate in common, in fee simple ; or, in other words, that he-used the language which he employed in that sense. And-, inasmuch as he used the same phraseology in the following-clause, we think he used it in the same sense there. The-authorities seem abundantly to justify us in translating a meaning which the context gives to language employed in, one clause, to the same language employed in another. And we feel especially justified in doing so, when it avoids the result, which the testator could hardly have intended, of' cutting off the family of one son in favor of the other.

We think the intention was to give an estate in common-to the two brothers, and that the court below was right in holding the plaintiff not -entitled to recover, as claimed in. the declaration.  