Kennedy's Appeal

The opinion of the court was delivered,

by.

Agnew, J.

Under the 9th section of the Act of 8th April 1833, relating to wills, the devise to David S. Kennedy, James Kennedy, and Eliza Kennedy (now Hannay), imported a fee, no other intent being expressed or inferable from Miss Keene’s will. The charge of the ground-rent does not alter the rule of the statute, as it exhibits no intent to cut down the inheritance to a life estate. When the question was, whether the charge enlarged the estate from life to a fee, the distinction as to whether the rent was affixed to the estate or to the person of the devisee had some importance, but it has none in this case. We think the charge of the ground-rent was not by way of a precedent condition. The operative words of the devise are present, vesting an immediate estate, while the words imposing the forfeiture for refusing consent to pay the rent, import a consequence taking effect after the devise, for the devise was then to become null and void, and the property to return to the estate of the testatrix. ■ Had she intended the estate not to vest until consent had been first given by a ground rent covenant, her evident knowledge of the subject would have led her to say so. She had a clear apprehension of her own purposes, and a ready command of language to express them.

The rule contended for by the plaintiff must be conceded, and under it the devise to these three persons by name would have been a joint tenancy. But the operation of that rule upon the estate taken by the devisees, has been ruled in Beeson v. Miller, from Fayette county, decided at Pittsburg in 1867 : Legal Journal, January 27th 1868, p. 187. That ease determined that a devise to three persons by name, and to their heirs, created a tenancy in common and not a joint tenancy, as a consequence of the Act of 81st March 1812. The decision is criticised on the ground that the Act of 1812 operates on the estate, and not on the instrument creating it. In other words, it is said we must continue to interpret the devise to create a joint tenancy with the jus accrescendi up to the instant of the testator’s death, although then, when the will takes effect, the act eo instanti cuts off the survivorship and turns the estate into a tenancy in common. The opinion in Beeson v. Miller merely gave the conclusion of the Court and not its reasons, and we are, therefore, asked to recede from it. But the reasons prevailing to make the decision induce us to adhere to it. The rule pre-existing the Act of 1812, which interpreted such a devise to be a joint tenancy, was followed by survivorship, and so long as survivorship attended joint tenancy, the rule and the consequence were consonant. But when survivorship ceased to attend joint tenancy, the rule of interpretation itself must cease to produce that result whenever the survivorship was not within the contemplation of the testator. It is not a rule of policy to be favored, but eessante ratione cessat et ipse lex. It is very evident that in a devise to three persons singled out by name, the testator means that each shall have his own share. He expects they will survive him. If he really thought he would survive the devisee, he would scarcely provide for him, or if he did, he would provide for the contingency also. If, therefore, he has made no provision for the death of any of them, because not contemplating that contingency, why should a rule of interpretation conferring survivorship and belonging to an antecedent state of the law, by an unexpected death, vest by survivorship an estate not contemplated or intended to be conferred by the testator ? To suffer such a rule to survive its purpose, is to permit it to create estates where none were devised, and to violate the right of disposition by imputing an intention where none exists.

The operation of the rule is confined to the period between the making- of the will and the death of the testator. During this interval the will is inoperative, while the testator does nothing to change it. If the objects remain at his death the same as when he distributed his estate by the will, it vests the estate in them precisely as he intended: to each his own share, and they take as tenants in common under the ojDeration of the Act of 1812. Then on what principle of propriety, or of correct interpretation, if one,, by death, passes from beneath the will, shall the estate intended' for him only, devolve on another to whom it is not given, under a rule of construction pre-existing the statute ? The act is remedial and should be interpreted according to its spirit, to prevent the evil it is intended to remedy. The rule of interpretation which would alter the intent of the testator during the period when his will is inactive and his intent remains in abeyance, is purely artificial, and would rob the statute of part of its effect, by establishing survivorship contrary to its spirit, and without the consent of the testator. Nine-tenths of the wills in the state are drawn by persons ignorant of the common-law doctrine of joint tenancy, to whom the idea of survivorship between the date of a will and the testator’s death would never occur. To permit survivorship to remain to control the devise in the interval, when the statute strikes it down the moment the will takes effect, would only entrap in many cases.

We hold, therefore, where there is a devise to two or more, nominatim, without a plain intent of the testator to vest the estate in the survivor, the incident of survivorship is abolished by a proper interpretation of the Act of 1812, from and after the date of the will, and not merely from the death of the testator. But the testator may direct otherwise. We decide nothing against the power so to devise, we only decide that, a rule of interpretation, whose reason has ceased, shall;not confer an estate where none is intended to be devised. Before Beeson v. Miller this precise question had not been decided. The only cases in apparent conflict are those of husband and wife, which are governed by a different rule founded on their legal unity of person, or entirety of possession or seisin.

The statement that the late Chief Justice Gibson was the author of the Act of 1812, is not strictly accurate. Though introduced by him into the legislature, it is a literal transcript of the Virginia Act relating to partition, passed at the session of October, 1786 12 Henning 849. The introductory words of our Act of 1.812, to wit, “If partition be not made between joint tenants,” are accounted for by the fact that(the act relates to partition, and this part was taken right out of the body of the section. The proviso that nothing in the act shall be taken to affect any trust estate, is all that is new in the Act of 1812. The judgment is therefore reversed, and we now give judgment for the plaintiffs for the one equal undivided third part of the premises described in the statement of the case,