
    
      FAYETTE COUNTY,
    September Term, 1796.
    
    Charles Larsh v. Hanna Larsh.
    THE case on a writ of partition was thus .—Paul Larsh was seized in fee of an estate in Fayette county. By his first wife, he had issue Charles, the plaintiff. By his second and surviving wife, he had issue Hanna, the defendant. He made his will, on 17th November, 1792, devising one third of his land to his wife, during her widowhood; one third to his son Charles, in fee-simple; and one third to his daughter Hannah, in fee-simple; and his wife’s third, after her death or marriage, to them also in fee-simple, to be equally divided between them: provided also, that, if he should have more children, they should be equal sharers, notwithstanding the former bequeathments. He died 11th April, 1793. In August, 1793, John Larsh, a posthumous son, was born, who died in August, 1794, during the widow-hood of his mother.
    On this case, the following questions were submitted to the opinion of the president.
    1. Whether the estate devised was in joint-tenancy, or in common?
    2. If the former, will not the share of John be equally divided between Charles and Hannah, as survivors? If the latter, does not such share vest exclusively in Hannah?
    
    
      Campbell, for the plaintiff.
    In a will, where the intention is plain, it will control the legal operation of the words.
    A devise of lands to a son, when he arrives at the age of twenty-one years, to hold to him, his heirs and assigns forever, is a vested devise; and if, after the death of his father, the son die under age, intestate, unmarried, and without issue, his mother surviving, the estate devised shall not go to his eldest brother, as heir at common law, but be equally distributed among his brothers and sisters.
    2 P. Wms. 741.
    
      Lessee of Kerlin v. Bull. Dall. 175. Anon. Dall. 20.
    
      The act of 23d March, 1764, directs, that the estate of children dying intestate, in their minority, unmarried and without issue, shall be equally divided among the surviving children. This obviates any objection, derived from John the deceased child’s being born of a second wife; for it embraces all the surviving children, more especially, when the estate (as in the present case) is derived from one common ancestor.
    Young, for the defendant.
    The posthumous son of the testator in the case stated was particularly provided for in the will; and became entitled to one-third of the land by purchase as devisee. The act of assembly entitles a posthumous child, not provided for by will, to such part of, the estate as if the father had died intestate.
    
      John Larsh became seized of an estate of inheritance in the land, subject to the common rules of descent.—Charles and Hannah are clearly several devisees, and not joint tenants; for no benefit of survivorship is mentioned, and the words "to be equally divided between them,” imply a tenancy in common, and relate to the whole estate. Joint tenancy is not favoured in the law: The posthumous son was to take in the same manner; and whatever may be reasonable, or however the testator may have intended, his intention can be looked for only in the will. Any intention not found there cannot be presumed. If any such intention could be presumed, it would be in favour of the youngest and most helpless.
    If John Larsh had a vested estate, subject to the common rules of inheritance, it must go to his sister Hannah, as heir at law of the whole blood.
    Dall. St. L. App. 47.
    
      1 Dall. St. L. App. 48.
    
    Dall. 175.
   President.

On the questions proposed, my opinion is—

1. That either by the will, or by the act of assembly, this was not a joint tenancy.

2. There might have been room to doubt whether the act of assembly was not applicable only to lands derived from an intestate father. However this may have been; since the case of Kerlin v. Bull, it appears, that, by the act of assembly, the son John having died intestate, in his minority, unmarried and without issue, the estate descending to him from his father is to be equally divided among the surviving children of his father.  