Evans v. Brittain , 3 Serg. & Rawle 135 ( 1817 )

Tilghman C. J.

The question in this case, turns upon a devise, in the will of James Evans, deceased, uncle of the plaintiff, made in the year 1772. The testator gave all his real estate, consisting of about 86 acres of land in Bueks county, to his wife for her life, and after her decease, as follows, viz. “ After her decease, I give and bequeath the “ aforesaid tract or plantation of land, with all the appurc‘ tenances thereunto belonging, equally, unto my brother “ Daniel's eldest son Isaac Evans, and his heirs, and to my “ brother David's eldest son James Evans, and his heirs, “jointly to be enjoyed by them, their heirs and assigns for ever.” The plaintiff (who is the eldest son of David Evans,) claims the whole, by Survivorship. The defendant claims a moiety , under Isaac Evans, (son of Daniel,) deceased. The Court of Common Pleas decided in favour of the defendant.

For many years past, the judicial current has set strong against joint-tenancy, and justly; because a tenancy in cornmon makes a more equal provision for families, and is geerally more agreeable to the real intent of the testator. NCourt has ventured to construe strict words of joint-tenancy as a tenancy in common ; but slight expressions have been caught at, to avoid a joint-tenancy. 1 he words equally to be divided, or equally, without more, are sufficient to make a tenancy in common. The former part of this devise, “ equally, to Daniel’s eldest son and his heirs, and David’s “ eldest son and his heirs,” would be a clear tenancy in common ; the intent is too plain to admit of a doubt; nor do I think, that this intent is destroyed by the subsequent expressions, “jointly to be enjoyed by them, their heirs and assigns.” It is not to be supposed, that a man should have two contrary intentions at the same time, and express them both in the same sentence. The latter words, in this case, indicate an intent that the heirs of each nephew should enjoy the land, which is inconsistent with joint-tenancy. But how are we'to construe the words, 'to be jointly enjoyed, &c. I believe the testator intended to use those expressions in their literal sense ; the sense which any man, not a lawyer,” would attach to them ; that is to say, that after the death of his nephews, their heirs should hol,d the lands together and this they would do, in case of a tenancy in common, until partition made. Before partition, tenants in common hold, together and undivided. It is much more reasonable to give this construction to the latter part of this devise, than to suppose that the testator had all at once changed his mind, and given the whole to the survivor, just after declaring that it should go equally to each and to the heirs of each. I am well satisfied of the intent, and am for fulfilling it, as there is no rule of law to the contrary. My opinion is, that an estate in fee, passed to the two nephews, as tenants in common, and therefore, the judgment should be affirmed.

Gibson J, concurred, Duncan J. gave no opinion, not having heard the argument.

Judgment affirmed.