Overheiser v. . Lackey , 207 N.Y. 229 ( 1913 )

I think that the determination below was correct, by which a devise of realty to the testatrix's two daughters was held to create a joint tenancy and not a tenancy in common. The language of the devise is: "I give and devise to my daughters Eliza Jane Marsh and Hester Marsh, jointly, the lot of land with the dwelling house and improvements thereon, situate," etc. It is the 2d clause of the will; following the direction for the payment of debts. The 3d 4th, 5th and 6th clauses contain bequests of moneys and chattels. In the 7th clause, she gives the residue of her estate, of whatsoever nature, "to said daughters Eliza Jane and Hester and my son Mortimer, to be equally divided betweenthem." By the 8th clause, she appoints executors and by the 9th clause she directs them to act as trustees "for my daughter Hester, she being deemed of unsound mind;" giving them power of sale over her interests. It is argued, in substance, that there is a doubt as to the intention of the testatrix in using the word "jointly," in her devise of the house and land to her two daughters, and, regarding the provision in the light of the statutory rule and of certain indications that the instrument was the work of the unskilled hand of a layman, that that doubt should be resolved adversely to a construction, which would give effect to the peculiar word used by creating a joint tenancy. The question is, did not the testatrix, by that particular qualification of her gift, intend to create an estate, which, being enjoyed jointly, or concurrently, by the two sisters, would vest in title in the survivor of them? Changing what was the rule at common law, our statutory rule reads: "Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy." (1 R.S. 727, § 44; Real Property Law, § 66.) The construction to be given to this statute is that, in order to create an estate in joint tenancy, "it was not necessary that the words joint tenancy should be used and that any other expression, clearly imputing such an intent, would be sufficient." (Coster v. Lorillard, 14 Wend. 265; Purdy v. Hayt, 92 N.Y. 446, 453.) Do we not find, in addition to the peculiar use of the word "jointly," in other parts of this will, something to point to an intention to give a qualified estate? Certainly, if we discover that intention to qualify her devise, it must govern. To the rule of intention, if lawful, all other rules of construction yield. That the testatrix did mean to give an estate of survivorship, or a joint tenancy, I think, appears pretty plainly, by referring to other provisions and to so construe the clause in question will better effectuate her testamentary plan. In the first place, there is significance in the fact that the devise is of the "dwelling house;" that is to say, the family residence. It was in testatrix's mind that that should be enjoyed by her daughters while they lived. There was no necessity to give it to them "jointly," unless, by the use of that word, it was intended to exclude the idea that the title should be several and distinct in each, as by tenancy in common. Not only is there no expression indicating an intention that the estate might be divided, but when we read a few lines below, in the 7th clause, we find an appreciation of the distinction in the kind of title conferred. The gift of the residuary estate is to the same daughters and their brother, "to be equally divided between them." If giving "jointly" meant nothing more than "together," or "unitedly," as contended for, then why change the language when giving the remainder of her estate to her three children? Then, in the next place, some reason is apparent, which may have influenced the testatrix's mind in devising the dwelling house to her daughters in joint tenancy. In the 9th clause she speaks of Hester as being of unsound mind, and, therefore, undertakes, however ineffectively, to confide her interests to the care of trustees. Her understanding of her unfortunate daughter's mental condition must have led her to believe that Hester would not marry (she did die unmarried); that by giving the dwelling house in joint tenancy the family home would be preserved for her while she lived, and that, in the event that she should survive her sister and become sole owner of the fee, upon her death, Eliza's children would get their share of the inheritance.

Each case, in the construction of wills, must be governed by its peculiar facts. In the present one, I am strongly of the opinion that the devise of the property to the daughtersjointly was language of survivorship and created an estate in joint tenancy, when it is read in connection with the entire will, and that to hold otherwise will be to disregard and to negative the testamentary intent. The Illinois case of Mustain v. Gardner (203 Ill. 284), upon which stress is laid as an authority, is distinguishable. There the words of the gift of lands were "to my beloved daughter Ola I., and my beloved wife Sarah A. Mustain jointly * * * to them, their heirs and assignsforever." In holding that the statutory presumption of a tenancy in common was not negatived by the use of the word "jointly," the decision of the court cannot be criticised. The addition of the words "their heirs and assigns" gave a sense, or meaning, to "jointly" at variance with the notion of an estate of survivorship having been intended. Unless we are to hold that to create an estate in joint tenancy a testator must use those precise words, then, I think we should say in this case that the testamentary intent was, by using the word "jointly," to distinguish the possession under the devise from that of a several ownership. As we have seen, any expression in a will importing the intention to create a joint tenancy would suffice. (Purdy v. Hayt, supra.)

I think the judgment should be affirmed.

CULLEN, Ch. J., WERNER, HISCOCK and COLLIN, JJ., concur with WILLARD BARTLETT, J.; CHASE, J., concurs with GRAY, J.

Judgment reversed, etc.