
    Lewisburg.
    Fawver v. Fawver.
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    
      F by his will devises as follows: I direct that my son P and my daughter E shall have the whole of my real estate, consisting of one hundred and four acres of land, during their natural lives, that is, if they remain single ; but if either of them shall marry, either him or her, then his or her claim and benefit of the aforesaid land, to he void ; or if they both shall marry, then the land is to be sold as hereinafter directed. The after direction is: That if P and E shall live and die single, then the land given to them for their lives shall he sold, and the proceeds divided among the testator’s children and the children of such as are dead. On the death of P unmarried, E takes the whole of the land, whilst she remains unmarried.
    
      Jacob Fawver, late of the county of Shenandoah, died about the year 1838, having first made his will, which was duly admitted to probat in the County court of Shenandoah. By his will he devised as follows: “ I direct that my son Peter Fawver and my daughter Elizabeth Fawver shall have and hold the whole of my real estate, consisting of one hundred and four acres of land, being the same on which I now reside, during their natural lives, that is, if they remain single; but if either of them shall marry, either him or her, then his or her claim, aid and benefit of the aforesaid land, to be void; or if they both shall marry, then the land is to be sold as hereinafter directed: but my daughter Elizabeth is to receive out of my personal estate 50 dollars more than any of my heirs, in consideration of her services and attention to me and my family affairs; which money is to be paid to her as soon as the same is made out of said property by my executor.”
    The testator then proceeds to divide his personal estate among his children; and in conclusion directs, that if his son Peter and his daughter Elizabeth should live and die single, then the land given to them for their lives, shall be sold, and the proceeds divided among his children and the children of such as are dead.
    After the death of Jacob Fawver, his son Peter died, never having married; and after his death, Joseph Fawver, one of the sons of the testator, filed his bill in the Circuit court of Shenandoah, against Elizabeth Fawver and the other devisees of his father, claiming that the interest of Peter Fawver in the land aforesaid, did not survive to Elizabeth ; but that the devisees of Jacob Fawver were entitled to have one moiety thereof; and asking for a partition of said moiety among said devisees, and for an account of the rents and profits since the death of Peter Fawver.
    
    
      Elizabeth Fawver answered the bill, and contested the construction of the will contended for by the plaintiff. There were some infant devisees who answered by their guardian ad litem; but all the adult devisees who answered, disclaimed right to any part of the land whilst Elizabeth Fawver was living and unmarried.
    When the cause came on to be heard, the Circuit court dismissed the bill, with costs; and the plaintiff thereupon applied to this Court for an appeal, which was allowed.
    
      Alexander Anderson, for the appellant.
    The paramount questions presented by the record are, What was the testator’s intention quoad this devise ? Did he intend to create an estate for life of joint tenancy, or one of a tenancy in common ? If neither, has he died intestate, as it respects an undivided moiety of said land ?
    If the testator designed to make Peter and Elizabeth joint tenants, then, by the common law, the jus accrescendi or right of survivorship, accrued; and Elizabeth, during her natural life, would have the exclusive control of the entire estate. On the other hand, if the intention was, that they should take as tenants in common, a wholly different state of things would ensue upon Peter's death. The surviving sister, I take it, would he sole tenant of one undivided moiety; and a tenant in common, with the other children, of the other moiety.
    But if, from the language of the will, fairly construed, it is of doubtful import which of these two classes of estate were intended, or the case as now existing has been unprovided for, then the law will interpose and give such a disposition of the property as is most accordant with its equal and liberal principles.
    That a joint tenancy has not been provided for, in express terms, is plain and palpable. Has it been done by implication ? In olden times, the law was apt in its constructions, to favour joint tenancy rather than tenancy in common; but this was upon feudal principles. Joint tenancies are now regarded with so little favour, both in Courts of law and equity, that whenever the expressions will import an intention in favour of a tenancy in common, that effect will be given. Fisher v. Wigg, 1 P. Wms. 14; 1 Ld. Raym. 622; 1 Salk. 392. Lord Cowper says, that a joint tenancy is in equity an odious thing. York v. Stone, 1 Salk. 158; Rigden v. Vallier, 2 Ves. sr. 252.
    Every devise and bequest to a plurality of persons concurrently, necessarily raises the question, whether they take joint or several interests; and that question derives its importance principally from the distinction that survivorship is incident to a joint tenancy, but not to a tenancy in common.
    A devise to a plurality of persons, simply, it has long been settled, makes the devisees joint tenants. Hence it is important to know’ what words will sever the tenancy, so as to make the devisees tenants in common. As a general rule, all expressions importing division by equal or unequal shares; or referring to the devisees as owners of respectivo or distinctive interests; and even words simply denoting equality, will have this effect. Thus it has been long settled, that the words “ equally to be divided,” will create a tenancy in common. A devise in trust to be distributed among persons, “in joint or equal proportions,” has received the same construction. So a devise to several persons, “equally amongst them,” or “equally,” or “respectively,” or “as they shall severally die,” or to several “ between them,” has been held to make the devisees tenants in common, in contradiction of some of the very early cases.
    And the same construction prevailed in a case, where the devise was to several, their heirs and assigns, “ all to have part alike, and every of them to have as much as the other.” Thorowgood v. Collins, Cro. Car. 75; Page v. Page, 2 P. Wms. 489.
    And when the devise was to A and B, of lands to be enjoyed “ alike,” Lord Mansfield held that they were tenants in common. Loveacres d. Mudge v. Blight, Cowp. R. 352.
    In a late case in the Court of exchequer, (Gant v. Laurence, Wightw. R. 395,) where a testator bequeathed his personal estate to his sons R and J, and their executors, administrators and assigns; and he provided, that if J should be desirous to be put out an apprentice to any trade, a competent sum should be raised out of his effects as an apprentice fee, for the use of his said son, and “in part of the share” to which he would become entitled, McDonald, C. B., held, that the words, “ in part of the share,” were decisive of the testator’s intention to create a tenancy in common.
    It should be observed, that in carrying into effect executory trusts, the Courts will not make the objects joint tenants without a positive and unequivocal indication of intention to that effect. Thus, in Marryat v. Townly, 1 Ves. sr. 102, where trustees were directed, as soon as the testator’s three daughters attained their respective ages of 21, to convey to them and the heirs of their bodies and their heirs, as joint tenants ; and for want of such issue over, Lord Hardwicke decreed that the conveyanee should be made to the daughters as tenants in common, with cross remainders, which he thought was the best mode of giving effect to these words.
    These cases all evince the anxiety which has marked the decisions of the late Judges to give effect to the slightest expressions affording an argument in favour of tenancy in common; an anxiety which has been dictated by a consideration that this species of interest is much better adapted to answer the exigencies of families than a joint tenancy, of which the best quality is, that the right of survivorship may be defeated by a severance of the tenancy.
    This leaning to tenancies in common was acknowledged by Lord Thurlow, in a late case, Jolliffe v. East, 3 Brown’s C. C. 25, where a testator bequeathed to A and B & 10,000, to be equally divided between them when they should arrive at 21 years of age; and to carry interest until they should arrive at that age. It was contended that the fund was to be divided at twenty-one, the legatees in the mean time taking it jointly; and that therefore, by the death of one under 21, it survived to the other; but the Lord Chancellor directed otherwise: his lordship observing, that “ the Court decrees a tenancy in common as much as it can.”
    
    From this array of authority, it is clear, Courts will seize with avidity any expressions which look to a severance of the tenancy; and so construe them as to countenance a tenancy in common, in preference to a joint tenancy.
    The question then recurs: Are there any expressions in this will susceptible of such construction ? Let us see. The interests of these two devisees, whether joint or several, were made to depend, at least to the extent of enjoyment, upon the contingencies of their remaining unmarried. For, if either of them should marry, “ then his or her claim, use and benefit of the aforesaid land, to be void.” If both married, the land was to be sold and divided as prescribed by the will.
    Suppose, for one moment, the devise had read thus: “ that P and E should have and hold all his real estate during their natural lives.” Here there would have been a manifest equality of title and interest; both would have held per my et per lout; both would have had part alike; and each as much as the other; and the intent would have been obvious that they should enjoy the estate alike. Well, in all these and such like cases, the construction has been that of a tenancy in common. But when the language of the devise, in the case at bar, is considered as a whole, the intention is yet more obvious; and a severance stands out in bold and prominent relief. For, upon the marriage of either, the interest of the other was not to be affected ; death alone could do that; but “ the claim, use and benefit” of the delinquent or recreant devisee was to be “ null and void.” In other words, he or she (as the case might happen) was no longer to enjoy any portion of his or her undivided moiety. It was not to be sold until either both should die or both should marry. But what should be done with it in the event of the marriage only of either devisee ? The will says, “ that devisee’s claim, use and benefit shall be void;” that is, cease, determine, end.
    Whither shall it go? To the survivor, Elizabeth? The testator does not say so. The common law does not so determine, unless it is assumed that Peter and Elizabeth were joint tenants. If they were, then the jus accrescendi, or right of survivorship, would have attached upon the marriage "of Peter; and during their natural lives, Elizabeth would have held the whole.
    But mark: The case at bar is one resulting from death, and not from marriage, in violation of the terms of the will. And by our act of Assembly of 1786, ch. 98, 1 Rev. Code 359, which took effect July 1, 1787, the law of survivorship in reference to joint tenancy, whether of real or personal estate, was wisely abolished. p provides that “ if partition be not made between joint tenants, whether they be such as might have been compelled to make partition or not, the parts of those who die first, shall not accrue to the survivors, but shall descend or pass by devise, &c., and be considered to every other intent and purpose, in the same manner as if such deceased joint .tenants had been tenants in common.” If the provisions of this act have any application whatever to the case, it would seem a matter of total indifference whether they were joint or several tenants; if the latter, they were tenants in common ; and then, the complainant is entitled to partition and an account of the rents and profits from the decease of Peter. If they were joint tenants, and no right of survivorship accrued, then, under .the .act of Assembly, the undivided moiety of said land descended to the sisters and brothers and their descendants, -as tenants in common.
    It will be borne in mind, that no sale is contemplated until the death or marriage of Elizabeth. For that would be in plain and palpable contravention of the will; as by it a sale is only directed upon one of two contingencies, viz: 1st, the marriage of both, or 2d, the death of both. One only has died. Can it he that the survivor is to enjoy exclusively the whole land until she die or marry? Would not such a construction do violence both to the language of the will and the intention of the testator ? Is it not repugnant to the statute in such case made and provided ? The language of that act is strong and peculiar. It contemplates and embraces “ estates of whatever kind.”
    In commenting upon the act of Assembly of 1787, abolishing the right of survivorship in joint tenancies, Judge Lomax, in his Digest, vol. 1, p. 478, ch. 1, title Joint Tenancy, says, “ One consequence which seems to arise out of the act of Assembly of Virginia, is, that , ... . . when an estate m joint tenancy is granted to two or more persons for life, the estate for life, as to one of the joint tenants who may die, will cease in part, and will sink in the reversion, instead of enduring until all the joint tenants he dead.” And again, Ibid. p. 481, he says: “ The provision in the act of Assembly of Virginia, abolishing survivorship, does not appear to have at all changed the estate of joint tenancy during the lives of all the joint tenants. In the event of death, the share of him dying is changed into a tenancy in common.” 1 Tuck. Com. part 2, p. 169.
    But, it will be contended, that this mode of construction would produce this absurdity, viz: make the testator intestate as to Peter’s moiety, during the single blessedness and life of Elizabeth. Suppose it did. Then it would descend equally to the children—share and share alike—and equality is equity. It would in effect he carrying out practically the reasoning of those great minds who say this rule of construction is best adapted to the exigencies of families. If Peter had lived single, a period of time equal to or longer than Elizabeth, and no partition had been made, she would have enjoyed hut an undivided moiety of the land devised. Why should she, in the absence of an express provision to that effect, enjoy more by reason of his death, to the exclusion entire of others, who are equally entitled, if not more needy ? An undivided moiety was what the testator devised to her—no more nor less.
    The joint or mutual enjoyment of the “ whole land” was, during their natural lives, liable to be defeated by the marriage of either or both. If, then, the language of the will does not warrant the construction, that upon Peter’s marriage, Elizabeth was to have the whole, provided and so long as both she and Peter lived; neither does its language authorize the inference, that it was the testator’s intention that she should have a life estate of the whole, in the event of Peter’s death.
    It has been argued, that it is apparent from the face tenor of the will, that the testator contemplated and actually made a total disposition of his property ; and that no partial intestacy exists. Ergo, Elizabeth, as survivor, takes a life estate in the whole, subject to be defeated only by her marriage, and that the intention of the testator was to secure to his son and daughter a home; which intention would or might be frustrated by the construction contended for by complainant. Because, if partition can be made, or an account of rents and profits entertained, a sale might be enforced, which is expressly guarded against in the will. Ergo, the survivor takes the whole during her life, upon condition to remain single.
    These positions when examined resolve themselves into sheer assumptions, and hence lose much of their interest, if not all of their vigour and force. It was truly remarked by an eminent Judge, I think Judge Wilmot, in Baddeley v. Leppengwell, 3 Burr. R. 1533, “ that in disputes upon wills, cases seldom elucidate the subject, which, depending on the intention of the testator, to be collected from the will and from the relative situation of the parties, ought to be decided upon the state and circumstances of each case.” So, too, thought Judge Pendleton; for in Sherman v. Sherman’s ex’ors, 1 Wash. 266, he superadded to the above dictum, that he generally observed, that adjudged cases have more frequently been produced to disappoint, than to illustrate the intention.
    
    In the construction of wills, an extensive latitude has been allowed, on account of the extremity in which they are often made, &c. That the intention of the testator is to give the rule of construction, all Judges, ancient and modern, admit. Lord Holt, and some others more modem, emphatically call that intention the polar star which is to guide our decisions; and in Hodgson v. Ambrose, Dougl. R. 336, the Court say, that this is the governing rule to which all other rules of construction must yield. See Kennon v. M'Roberts &c. 1 Wash. 96.
    This case, I confess, is not free from difficulty; and in reference to which not a few minds may readily differ. But to my mind, it does seem that the purposes of the will, and the requisitions of the law, will be best satisfied by the construction, either that the case is one of omission or partial intestacy; or that by the terms of the devise and the legal effects thereof, a tenancy in common was designed or has been the necessary consequence of an event caused by the act of God, quod nemini facit injuriam. In either point of view, the spirit of the statute abolishing survivorship will prevail, and equal and substantial justice be done to the parties in interest.
    There was no counsel for the appellees.
   By the Court.

The decree is affirmed.  