
    Anderson, petitioner vs. Parsons & als. appellants.
    
    Where one devised lands to his son, and his daughter, and two grandsons, (surviving children of a deceased daughter) to be divided between them into three parts, one third to the son, one third to the daughter, and the other third to the two grandsons ; and devised other portions to other children in fait of their share of his estate ; and charged the devisees of the first three parts with the payment of his debts, in eijual thirds ; and one of the grandsons died in the lifetime of the testator, unmarried ; — it was held that the devise to him did not lapse, but survived to his brother.
    This was an appeal from a decree of the Judge of Probate, on a petition for partition of land, among the devisees under the .will of the late Col. Parsons. The question was, whether a devise to Rufus Anderson, the petitioner, and his brother James, was lapsed, so far as it respected James, by his death; or whether it survived to Rufus. The devise was in these words; — “ Thirdly, I give and devise to my son Isaac Parsons, Jr. and to my daughter Esther Chandler, and to my two grandsons, viz. Rufus Anderson and James Anderson, (the two surviving children of my daughter Hannah deceased,) their heirs and assigns, to be divided between them into three parts, viz. one third part to my said son Isaac, one third part to my said daughter Esther, and the other third to my two said grandsons Rufus and James, all the following parts of my estate,” &c.
    There was another specific devise to his daughter Susan, to be accounted “as her full proportion” of his estate and another devise to his grandson Moses Edward Parsons, the only child of another deceased son, to he accounted in full “for his share or portion” of his estate.
    Lastly, the testator designated certain property, to be sold for the payment of his debts ; — “ and that the overplus, if there be any, be divided one third to my son Isaac Parsons, Jr. one third to my daughter Esther, and the other third to tny grandsons Rufus Anderson and James JIndcrsonbut in case it should fall short, and there be a deficiency, it is my will that they shall make it up by paying each one their pari, in the same proportion,, sufficient to make it up for the above purpose.”
    There was no residuary devise.
    
      Jamas Jhidcftbn died in the lifetime of tSie testator, and unmarried ; and Rufas filed this petition for partition, stating his share or proportion as one third. And the Judge of Probate being of opinion that the devise was not lapsed, the respondents appealed from his decree.
    
      Fessenden and Deblois, for the appellants,
    argued that by the terms of the devise, it was a tenancy in common, and not a joint tenancy. All devises are tobe so taken, by Slat. 1821, eh. 85, see. 1, unless a joint estate is expressly created, or clearly implied, by the words of the devise. The only exception is where a conveyance is made to a husband and his wife; and this is on the ground that in law they are but one person. Shais in Mersey 5 Mass. 521. Fox v. Fletcher 8 Mass. 274.
    But it is equally well settled that where a devise is to two, to hold as tenants iri common, and one dies in the life of the testator, the devise lapses. Motley v. Bird 3 Ves. 628. Crayo. Wallis 2 P. Wms. 529. Buxton v. Coke 1 Salk. 238. note C. Bagwell r. Fry 1 P Wms. 700. Page v. Page % P. Wms. 489. Webster 
      
      i). Webster ib. 347. Suvivorship lakes place only where a joint tenancy is expressly created ; or where the will is explicit that «pon the death of one of the devisees his share shall go to the survivors.
    Greenleaf, for the petitioner,
    argued from the language of the will, that it was the intent of the testator to give one third of the property to the representatives of his daughter Hannah. But if the devise to James is lapsed, then Isaac and Esther will each receive more than the third part devised them, and the representative of Hannah less ; contrary to the manifest intent of the testator that these three children should share alike. The English courts have laid much stress upon this principle, always adopting such construction as would give to devisees the portion devised to them, and no more. Such were the cases of Bagwell v. Dry. 1 P. Wms. 700. Page v. Page 2 P. Wms. 488. Rider v. Wager ib. 331. Show 91. Such also was the decision of the court in Butler v. Little 3 Greenl. 239.
    Upon the appellants’ construction, the intention of the testator in the last item will also be defeated ; since any deficiency of funds for the payment of debts is there expressly charged on Isaac, Esther, and the children of Hannah, in equal third parts, having regard to the proportions of the estate devised to them ; yet Rufus will receive hut one sixth of the estate, and the others hold more than a third. It will also defeat his intentions in regard to Susan, and the other grandson, by giving them property beyond wjiat he had expressly declared to be in full of their proportion, of his estate. Man v. Man 2 Stra. 905.
    Thus by construing the devise a tenancy in common, the utmost, confusion is introduced into the estate ; while by taking it as a joint tenancy in the two grandsons, agreeably to the rule in Stuart v. Bruce 3 Ves. 632, there being no words of severance in the devise to them, the principle of survivorship carries every part of the testator’s intention into full effect.
   Mellen C. J.

delivered the opinion of the court.

By the common law, when a devisee dies before the testator, the devise to him is lapsed and yoid ; no person being in esse te ake. When a devise is io two or more- persons jointly, or la them as joint tenants, if ona dies before the ¡estator, the survivor will bo entitled to the whole. 1 Show. 91. 1 Salk. 237. Roper on legacies 121. 3 Ves. 628. 2 P. Wms. 529, 331. Cowper 257. Eut whea a devise is to two or move as tenants in common,if one of the devisees dies before the testator, then the devise as to him is void and lapsed ; and it shall not go to the survivor, but it is intestate property. 3 Ves. 638. 2 P. Wms. 529. 1 Salk. 238. 1 P. Wms. 700. 2 P. Wms. 469. Of course the only question is, whether the devise to James and Rufus was a devise of an estate in joint tenancy, or of an estate in com-moa. The appellant contends it was the latter; the appellee contends it rvas the former.

Our statute of 1831, ch. 35, sec. I, declares that all grants, devises, &c. to two or more persons shall be taken, deemed and adjudged to be estates in common, unless in express terms declared to bs otherwise, or unless there are other words therein used, clearly and manifestly showing it to be the intention of the parties to such grants, devises, &c. that such lands, tenements and hereditaments should vest and be held as joint estates, and not estates in common.”

In many eases, the evident intentions of a testator are inconsistent with certain settled principles of law; and so such intentions cannot be carried into effect. In the case before ns no such difficulty exists ; on either construction a fee simple estate was devised to James and Rufus ; and the only inquiry is whether it was to be holden in common, or in joint tenancy. The statute has left this to be settled merely by the intention of the testator ; and it may be an intention expressed or implied in the will. To ascertain this intention, all the provisions of it must be regarded; and such a construction should then be adopted as-will give operation and effect to them all, if that, can be done. Hence the importance of examining the several parts of the will; and if oa such examination it shall be fpund that his intentions cannot be carried into execution, unless by construing the devise to Rufus and James to pass an estate io them as joint tenants, then the court are warranted, and it is their duty, to give it such eaastruction.

It is evident that the testator’s affections have been equally divided among his three children, Isaac, Esther and Hannah, (the deceased mother of Rufus and James) and hence he was desirous of shewing that fact, by providing in his will that her representatives should have the share which he gave to Isaac and to-Esther, viz. one third of the property described in the devise in question. The object of the testator seems to have been that the issue or surviving- issue of Hannah, should enjoy the same proportion of his estate, as though she had been living at the time he made his will, and the devise of that third part had been to her in fee. This same idea appears in the bequest of the overplus that might arise from the sale of the property designated for the ^payment of his debts; one third is given (to Rufus and James. Again it is provided that in case the designated property should fall short, and be insufficient for the payment of liis debts, the devisees, Isaac, Esther and Rufus and James should make up the deficiency “ by paying each one their part in the same proportion.” It is argued that by this provision, such deficiency is to be made up by the devisees in the following pro-proportions ; viz. Isaac and Esther must pay one third each ; and Rufus and James the other third; and therefore, unless the devise to them is construed to be an estate in joint tenancy, either Rufus must pay the one third, and yet hold only one sixth ; or else pay one sixth, and all the estate be rendered liable for the payment of the other one sixth, which is expressly contrary to the terms of the will and the testator’s direction; or else the one sixth given to James, and that only, is to stand chargeable with this one sixth of deficiency ; and this is contrary to the statute, which subjects all the estate of a deceased person to the payment of his debts. It is urged that these consequences could not have been intended by the testator ; and as by considering the devise to Rufus and James a joint tenancy, all these difficulties will be avoided, the cohrt should give such a construction to the will as to avoid them ; and do it on the ground, that such must have been the testator’s views and intentions. These arguments certainly deserve consideration. There is also in the language of the testator a plain distinctionbetween that which relates to the Revise generally, and that which relates to the devise to Rufus and James. The words are, (placing the subject of the devise first) ‘ Í give and devise all the following parts of my estate, to my son Isaac Parsons, Jr. and to my daughter Esther ('¡handler, and to my two grandsons, Rufus Jlnierson and Jamen JlnJersou, (the two surviving children of my daughter Hannah, deceased,) their heirs and assigns, to he divided between them into three, parts, viz. one third part to my said son Isaac, one third part to -<ny said daughter Esther, and the other third to my two said grandsons Rufus and James.” By the words to be divided between them into three parts” a tenancy in common is clearly created, not only according to our statute, but also according to the principles of the common lavs'- ; that is, so far as the respective owners of the three shares or parts stand in relation to each other; but it seems equally clear that, at common law,the devise of the third part to Rufus and James would be a joint tenancy as between those two devisees; and these different kinds of estates or tenures may exist at the same time, in the same persons, and in respect to the same properly. Thus in Co. Lit. 189 it is said, 54 If there be three joint tenants, and one alien his pari ; the other two are joint tenants of their parts that remain ; and hold them in common with the alienee.”- — Therefore if by the will in question the estate had been given in thirds to Ihe before named devisees, as an estate in joint tenancy, and Isaac and Esther bad conveyed their two thirds to a stranger ; then by the above principle he would have held his two thirds in common with Rufos and James ; and yet they would have held their one third in joint tenancy, as between themselves. Now if such different tenures would be the consequence of an alienation by one or more of the joint tenants, there seems no difliculty in creating such an estate in the first instance, to be holden under a deed undevised ; that is, there is no legal inconsistency or confusion in such a tenure. From several parts of the will it distinctly appears that the tes tutor considered that he had made such a disposition of his prop-iy. as that the proportion he had given to his other children was sot to he increased by any part of that which he had devised to B.’jfos James. The will contains no residuary clause ; and no provision is made for the event of the death of Rufus or James, cither before the death of the testator, or, after his death, unmarried and without issue. This circumstance may be fairly used as an argument in favor of construing the estate devised to them as a joint tenancy ; because, if such was the testator’s intention, then such prospective arrangements were wholly unnecessary. In a case where no rule of law forbids giving full latitude to a testator’s intention, the courts are liberal in their construction in favor of a devisee, upon the subject of intention ; as in the case of Sargeant & al. v. Town, 10 Mass. 303, the court decided that a devise of wild and uncultivated land carried a fee, without any words of inheritance ; because a life estate would be of no use to the devisee. So in the case before us, unless the devise to Rufus and James made them joint tenants, some provisions in the will cannot be carried into effect without disturbing others, nor the obvious design of the testator, respecting his bounty to the issue of his deceased daughter, have its complete operation. For these reasons, the court are of opinion that the decree of the Judge of Probate ought to be affirmed.  