
    HIGH COURT OF ERRORS AND APPEALS,
    At Philadelphia, July, 1797.
    Anne M‘Pherson, widow, et al, devisees of Robert M‘Pherson, v. Alexander M‘Pherson.
    IN an action in partition brought in the Common Pleas of Chester county, and removed into the Supreme court, on a case stated, it was submitted to the Supreme court to determine, whether Alexander M‘Pherson and Robert M'Pherson were tenants in common or joint tenants, under the will of John M'Pherson. If they were joint tenants, there was to be judgment for the defendant; if they were tenants in common, there was to be judgment for the plaintiffs.
    The opinion of the Supreme court was, that they were joint tenants; and judgment was entered there for the defendant.
    On this, a writ of Error was brought; and the case appeared as follows:-
    On 23d November, 1762, John M‘Pherson made his will, which, after directing all his debts, &c. to be paid; giving his wife 100l. with all his furniture (except the clock) his sorrel mare, a lodging room, the keeping of one cow, and provision necessary for her table during life; and directing, that, if file marry, she should then quit her claim to the lodging room and table necessaries; proceeds thus:—"I give and bequeath to my son Alexander, the plantation whereon I now dwell, to him and to his lawful heirs, also my clock. I give to my son Robert the plantation whereon he now dwells, to him and to his lawful heirs and assigns. Item. I further give 
      
      and bequeath to my sons Alexander and Robert all that plantation or trait of land I purchased from Samuel Williams, to them and their lawful heirs and assigns, to be in full possession of the said Alexander and Robert, until such time as my son John personally appears, and demands the said plantation; and when he does appear, and demand the said plantation, then it is my will, that my sons Alexander and Robert, or their lawful heirs, do peaceably and quietly yield and give up the same to my son John. I give to my daughter-in-law Sarah 10l. to be paid in one year after my decease. And, if any money is remaining of my personal estate, after my said legacies and bequeathments are fully paid, then it is my will, that the same be equally divided between my wife and my sons Alexander and Robert, I order and appoint my wife and my sons my sole executors, &c.”
    His son John has not yet returned, nor is it known what has become of him. Robert made a will, and devised his real estate to his wife and children. He died. They survived him, and are the plaintiffs in the writ of Partition, and the writ of Error. Alexander is the brother of Robert, and claims as joint tenant under his fathers will and survivor.
    
      Wilcocks and Tilghman, for the plaintiffs.
    The rules for construing wills are the same at law as in equity.—In equity, joint tenancy is said to be odious. It is settled, that the intention of the testator prevails, if not against any rule law. And tenancy in common will rather be favoured, than joint tenancy. The court will presume a tenancy in common, unless there be plain words to contrary.
    In a case, where the legal words make a joint tenancy, lord Mansfield relies on the circumstance of the testator having a pride in his family; and, without any words Shewing a tenancy in common, it has been construed from the circumstance of money being advanced by both. It is doubtful, whether, by lawful heirs, an estate tail is not created.
    In this case, if the devise to Alexander and Robert had stopt at giving the estate, it might have been more doubtful. The subsequent words shew, that a tenancy in common was intended. This plantation was to be in the full possession of both, until John shall demand it. If,
    3 Burr. 1541, 1570, 1579, 1581.-2 Bur. 1112.-2 P. Wms 673.
    3 Burr. 1541. 1 Burr. 233. 3 Bac. 198. Moor. 558.
    1 Vern. 353. 1 Ves. 166. 2 Ves. 258. 3 Atk. 734. 1 Wils. 165. 1 Salk. 158. 1 Eq. Ca. Abr. 293.
    
      3 Burr. 1581. 2 Ves. 258. 1 Ves. 521.
    
      during the life of both, John demand it, both were to give it up. If, before John demand it, either or both die, the words are not, the survivor or his heirs shall give it up to him; but that they or their heirs shall give it up to him. This, reddendo singula singulis, plainly implies, that the heirs of both might be in possession; and this could be only by a tenancy in common. These words are equivalent to a devise to them and their heirs respectively. It is not necessary, that there should have been words to shew, that each should hold in severalty: there are none such in any tenancy in common. They hold per my et per tout, till an actual division is made.
    The testator seems plainly, from the whole will, to have intended a perfect equality to his sons, Alexander and Robert and to have intended an equal provision, out of his real estate, for his absent son John, if he should return. He makes his two present sons executors. All is impartial; and it cannot be supposed, that he could have intended, that if, as in the present case, one of his sons, leaving a numerous family of children, should die before the other, the survivor should enjoy two-thirds of the estate. He intended an equal share to each of his children, and that each should transmit this share to his descendants. The court will give effect to this just intention, and declare this to be a tenancy in common.
    
      T. Ross, for the defendant.
    I admit, that the intention of the testator, governs the construction of the will, where it is not contradicted by any express rule of law. But this intention must be collected from the will itself, and not from extraneous circumstances. The words equally to he divided, as share and share alike, or to them and their heirs respectively, have been sufficient to make & tenancy in common.
    An estate in joint tenancy is created by a grant to two and their heirs. The general presumption is in favour of joint tenancy, unless there be words shewing a different intention. The clause in this will is, “I give to my sons Alexander and Robert all that plantation, to them and their lawful heirs.” This is clearly a joint tenancy, and, had he stopt here, there would have been no doubt. What is there, in the subsequent words, to change this construction? The object of the testator, in this clause, was a provision for John, not for Alexander and Robert, and their children.
    
      2 Atk. 121. L. Ray 692.
    
    
      2 Comm. 179-81.
    
      It does not appear which was the eldest, whether Alexander or Robert; and, if it did, it could not effect the construction.
    Though courts may lean to tenancy in common, it is always on necessary inference from the words of the will, not from surmise. To found a construction on any other presumptions than those to be drawn from the will itself, is to make a will; and to do so in this case would be to make a will for a man who died thirty-five years ago.
    The court of Errors and Appeals held this to be a tenancy in common, and reversed the judgment of the Supreme court. But in this they were not unanimous. Their opinions were somewhat as follows:—
   Shippen and Coxe, J.

held it to be a joint tenancy.

1. Here is a clear joint estate vested in Alexander and Robert; and it cannot be devested without a clear intention expressed.

2. No such clear intention appears, nor any clear intention, that this should be a tenancy in common.—The words, used in creating the obligation to surrender, are the same as those used in creating the estate. They are therefore to be construed in the same way in both parts of the will; and the meaning is, that whoever, under the will holds the estate at the time of the demand, shall then surrender it.

3. As to equality, this construction equally secures it: for either had an equal chance to survive the other.

Chew, President, and Smith, Addison, Henry, and Riddel, J. held this to be a tenancy in common.

1. It appears, from the whole of this will, that equality between the two sons Alexander and Robert was intended. And supposing, in respect of age and health, their chances equal, the equality ought to be construed a real, and not a casual equality.

2. Courts in England have gradually inclined to construe in favour of tenancy in common; and, from this progress of judicial opinions there, and the state of property here, we ought to lay hold of every possible construction, to make it a tenancy in common.

3. The natural, if not the necessary construction of the direction, that his sons Alexander and Robert, or their heirs, should give up the plantation to John is, that his sons, if both alive should give it up; or if either of them were dead, that the survivor, and the heirs of the other should give it up: or, if both were dead, that the heirs of both should give it up: and this construction can consist only with a tenancy in common.

4. Though the devise be in the same words to them and their heirs, yet these have a technical meaning in a grant, and there is no reason to incline us, in favour of a joint tenancy, to stretch them to the same sense in a clause out of the ordinary form. In the grant, the expression is to them and their heirs. In the condition, it is to them or their heirs.

5. Though there be no precedent for construing a tenancy in common from words like these, this construction is in the spirit of former decisions; and there was a time when there was no precedent for construing a tenancy in common from the words equally to be divided, &c.

6. This is a contingent trust: it is yet possible that John may return, and demand the estate. Now it is a trust coupled with a present interest.  