Dunn v. Bryan , 38 Ga. 154 ( 1868 )

Brown, C. J.

Upon the argument of this case, counsel for plaintiff in error, as we understood them, abandoned the assignments of error, except as to the eleventh item of the will of John Waters. And, indeed, we think the case of Riordon, guardianes. Holliday and wife, 8 Ga., 79, controls the case; except as to said eleventh item of the will. We cannot, however, agree with the learned and able Judge, who decided this case in the Court below, that the case just cited, is an authority in point, when we come to construe said eleventh item of this will. In that case, the will gave only a life-estate to the three sisters, and in no event could either of them take more than a life-estate in any portion of the property. The language of this will is very different. It is, and that “ they (my executors,) have and hold the said stock, in trust, for the equal use and benefit of my daughters aforesaid, during their respective lives; and after their death, then in trust for the use of the children of my said daughters, and if either of my daughters die without issue, her share to go to her sisters, and if either die leaving issue, her share to go to her issue.” Now, we^are satisfied that the words “ for the equal use and benefit of my said daughters,” taken in connection with’ the subsequent words, “ if either die without issue, her share to go to her sisters,” made the estate a tenancy-in-common, and upon the death of Eliza Waters, without issue, that her share went to her two surviving sisters, as tenants-in-common in fee simple; and that upon the death of Mrs. Brown, leaving her daughter, who is the wife of the plaintiff in error, her only surviving issue, her share, which was then one-half of the estate, went to her said daughter, who became a tenant-in-common with her aunt, Mrs. Bryan; whose share, at her death, goes to her issue.

We think this view of the case is sustained by authority. In the case of Warner vs. Hone, Pr. in Chan., 491, Thomas Gladwin being possessed of several lease-hold houses, for several terms for years, made his will, and devised his property to his \fdfe for life, and after her death, he gave and devised the same to Alice Bunion and her three sons,■ equally amongst them. And it was decreed that they took, as tenants-in-common, though there was no mention of any division to be made, or equally to be divided between them. And accordingly, the plaintiff, who was administrator of Alice Bunion, and had brought this bill for an account of the profits, had an account of the profits, for the time past, and that he should be let into a fourth part of the rents and profits for the time to come.

In Lewen vs. Cox, Cro. Eliz., 695, it is held that a devise to his “ two sons equally, and their heirs,” creates a tenancy-in-common. Popham, C. J., says, “ If one devise his goods equally to two, there is not any joint-tenancy: for equally, shows his intention to give to either of them an equal proportion ; so of a devise of a term to two equally, they are tenants-in-common.” Again, he says of land: “ But if a devise were to two and their heirs equally, or part and part alike, there is a tenancy-in-common; for every one of their heirs shall have it.” And this opinion was afterwards affirmed on a writ of error in the exchequer.

Deme vs. Gaskin, 2 Cowp., 657, was decided by Lord Mansfield. In that case, testator devised his property to M. R., G. R., and T. R., equally, and it was held the devisees were tenants-in-common. His Lordship says: “As to the' next question, whether this is a tenancy-in-common or a joint-tenancy, there is no room for argument. Equally, as well as equally to be divided, implies a division; whereas, if they were to take as joint-tenants, there would be no division.”

In Fisher vs. Wigg, 1 P. Wm’s., 16, Mr. Justice Gould says: “The words equally divided, or, equally to be divided, make a tenancy-in-common in a will, beyond all dispute.”'

In the case of Lord Bindon vs. the Earl of Suffolk, 1 P. Wm’s., 96, this question was as to the proper construction of the will of the late Earl, who gave ¿620,000 (due him from the crown,) to his five grand-children, share and share alike, equally tó be divided between them, and if any of them died, then his share to go the survivors, or survivor of them. The question was, whether the grand-childrén took as tenauts-in-common or as joint-tenants, and the Lord Chancellor held that they took as tenants-in-common, and that, by the subsequent words, if any of them died, his share shall go to the survivors, it must be intended, if any should die during the lifetime of the testator. This case, which was decided in 1707, was reversed on an appeal to the Lords; but in the subsequent case of Stringer vs. Phillips, decided in 1730, the opinion of Lord Cowper was adhered to. That case is thus reported in Equity Cases, Abr., 292. “One devised ¿6100 to five, equally to be divided between them, and the survivors and survivor of them, and if A, (one of the five,) died before marriage, her share to go over to another person ; and it was decreed, that they took this ¿6100 as tenants-in-common; and that the words ‘and that the survivors and survivor of them,’ to make them joint-tenants, would be a contradiction, to the first words, whereby they were made tenants-in-common; and that they should be construed to extend only to such, who were the survivors at the death of the testator; and therefore inserted, to prevent a lapse, and this is the stronger by the limitation of M’s share upon d contingency, by which it is plain the testator did not intend her to be a joint-tenant with the rest; and as the devise was to all five, they must all take alike, and not A, to be tenant-in-common, and the other five joint-tenants.”

It was adjudged, in 3 Lev., 379, that if aman devises lands to his two sons, and their heirs forever, and the longer liver of them, to be equally divided between them, after his wife’s death, this shall be a tenancy-in-common in the sons. See 1 Vernon, 65. 2 Vernon, 430. 2 Ves., 255. Co. Lit., 1906. 2 Rol. Abr., 39. 3 Atk., 524.

But it is insisted that there cannot be a tenancy-in-common, under this item of the will, as the three daughters of the testator had a life-estate in the property, and it could not be divided till the death of the survivor; and it is questioned by the learned Judge in the Court below, whether any effect whatever should be given to the latter part of this item of the will, which says, “if either of my daughters die without issue, her share to go to her sisters, and if either die leaving issue, her share to go to her issue.” Were it necessary to reject any part of the language of the will, we think the words of survivorship should be rejected rather than the words which create the tenancy-in-common; as joint-tenancies are not favored by law; and are abolished by our statute. Words even of survivorship in a will shall not defeat the effect of words importing a tenancy-in-common ; but shall be referred to some time as the death of'the tenant for life, or even the death of the testator; although this would be a construction not to be adopted, if there could be any other. See note on page 251, Ves. Sr. Ch. Reps., 1 Am. ed. Russel vs. Long, 4 Ves., 551. Perry vs. Wood, 3 Ves., 204.

We are of opinion, however, that effect may be given to every part of this item. Let it be borne in mind that the language of the testator is, “ in trust .for the equal use and benefit of my daughters aforesaid, during their respective lives^ and after their death, then in trust for the use of the children of my said daughters, and if either of my said daughters die without issue, her share to go to her sisters, and if either die leaving issue, her share to go to her issue.” Now, what is the plain intent of the testator? That his three daughters shall take this property as tenants-in-common, for their respective lives — that is, each to hold her share of the property for her life, and at her death, her share to gojto her issue; and if either die without issue, her share to go to the two survivors, who take it in fee simple, as tenants-in-common; and as each dies who has issue, her share goes to her issue. If it had been intended that the three daughters take as joint tenants-for-Iife, and that the survivor take the whole during her life, why dispose of the share of one dying without issue ? Under that construction, the moment she died without issue, her share was at an end, and that part of the will which gives her share to her surviving sisters, after her death, is without meaning. But give the clause the other construction, and every word has its proper place, and its proper signification.

We are satisfied, for another reason, that we do no violence to the intention of this testator by this construction. Upon an examination of the will, we find that the language of the eleventh item, which disposes of the residuum of the estate, differs from the language of the other items in question. Doubtless the testator had an object in changing the phraseology, when he came to dispose of the residuum of the estate, and in using language, different from that used in previous items, by which he gave specific legacies, which were to go to the issue of his three daughters, “ share and share alike,” “ after their deaths.”

Judgment reversed.