themselves each is entitled to an equal share of the rents, income, and profits, so long as he lives; and when one dies, the survivor takes the entire interest, to the complete exclusion of the heirs or personal representatives of the party deceased. This right of survivorship is the great clog upon property vested in joint owners as distinguished from those who own in common; for it seems very unreasonable on the face of it, that while both are equally owners, the longest liver should have the whole. And the modern policy of the law, strengthened and enforced by numerous local statutes, is to regard property which has been given or sold, granted or devised, to two or more persons without words indicating how it shall be held, as a tenancy or ownership in common rather than a joint tenancy or ownership.1 And an exception which has long been made in favor of trade or agriculture is to regard the implements and stock used in any joint undertaking of this sort as exempted from the rule of survivorship; though here the modern principles to be applied are those peculiar to the law of partnership, which we shall examine hereafter.2 But it must be conceded that the policy of discouraging survivorship has been applied in practice more directly to lands than chattels; and this we have no doubt is mainly for the reason that a strict joint ownership (not a partnership) in chattels is seldom created so as to occasion hardship or last any considerable length of time, except it be by will. The construction of wills involves chiefly the question of testamentary intent; and bequests and legacies, dependent upon the contingency of one or another's death, are by no means unusual in various other connections. The doctrine of survivorship might apply well enough, then, to gifts of this sort, if so the testator intended it, though intolerable when enforced where two persons had bought and paid for goods and chattels together, and thus jointly acquired a title by 1 See 2 Bl. Com. 183; 4 Kent Com. 359, 360, n.; 1 Washb. Real Prop. 408, and n.; 48 Ill. App. 145; 51 Kan. 153. Under a statute which abolishes survivorship as incident to joint tenancy, a deed or will may expressly create such incident. Jones v. Cable, 114 Penn. St. 586. 2 See Co. Lit. 182 a; 2 Kent Com. 359. And see next chapter as to Partners. purchase. Subject to the exceptions made in favor of trade and agriculture, the rule has, it is true, been laid down, that if personal property, whether of a corporeal or incorporeal character, be given to A. and B. simply, without the use of other words, they will be joint owners, having equal rights as between themselves during the joint ownership, and being with respect to third persons but a single individual in the legal sense.1 Whether, however, this would amount to a presumption in favor of survivorship, as against a quasi partnership in the property, the decided cases leave it rather difficult to determine; and the more so from the circumstance that the term "joint ownership" is frequently used in an indefinite sense, so far as personal property is concerned, -as it certainly ought not to be, - consequently embracing both the technical joint ownership and the ownership in common.2 The modern rule of equity is certainly to defeat a joint tenancy wherever it is possible; and in this country the incident of survivorship is destroyed by statute almost entirely, except in the case of legacies or devises, and where persons are appointed co-executors or co-trustees or co-guardians, or when one expressly creates the incident. § 157. Joint Ownership under a Will. As to legacies of personal property. Chancellor Kent says that the courts at one time leaned against any construction tending to support a "joint tenancy" in legacies of chattels, and testators were presumed to have intended to confer legacies in the most advantageous manner; but that in Campbell v. Campbell the Master of the Rolls reviewed the cases, and concluded that where a legacy was given to two or more persons, they would take jointly unless the will contained words to show that the testator intended a severance of the interest and to take away 12 Kent Com. 350; Wms. Pers. Prop. 5th Eng. ed. 276. And see Crossfield v. Such, 22 E. L. & Eq. 555. 2 See Swartwout v. Evans, 37 Ill. 442; Pars. Partn. 548; White v. Brooks, 43 N. H. 402. 3 See Perry Trusts, § 136; Nicholson v. Caress, 45 Ind. 479. Kendall VOL. I. 13 v. Hamilton, 4 App. Cas. 504, discusses the question of joint and separate liability on one contract. There is no settled rule of equity that a contract which in terms is joint and would be so construed at law is to be treated in equity as joint and several. Ib. 193 the right of survivorship; and that this rule of construction has been declared and followed in the subsequent cases.1 But yet legacies and general testamentary dispositions mainly depend upon the testator's intention, as we have already remarked. The legal construction of wills favors the vesting of legacies; and the rule is general, that where a bequest to two or more whose names are coupled together fails as to one because of his death before the will can take effect, or from other cause, there is no lapse of the bequest so long as the other party or parties remained at the testator's death to take it by way of survivorship.2 The effect of such a rule is to prevent a collapse of the testamentary gift, so that from this point of view it is certainly beneficial. And it should be added that words of survivorship are usually to be referred to the period of the testator's death. But if there be a previous life estate, it appears, according to the later English authorities, that the period of division among survivors will be the death of the person who has the life interest.3 § 158. Joint Executors, Trustees, etc. Executors, trustees, and other officers who have the legal estate in personal property are usually brought within the rule of joint ownership where two or more are appointed to act together; for it is inconvenient for such persons to hold as owners or tenants in common. The practice with regard to trust settlements is to make the trustees joint owners, in order that surviving trustees may take the entire fund, rather than that the executors or administrators of any trustee who may happen to die should have any right to meddle with the share of the deceased. And so, too, where a bequest under a will is made to joint executors as a class, and one or more of them dies in the testator's lifetime, or after the testator's death and prior to the period of division or any severance of the joint own 12 Kent Com. 351; Campbell, 4 Bro. 15; Jackson, 9 Ves. 591. Campbell v. v. Mayn, L. R. 5 Eq. 150; Morgan v. Britten, L. R. 13 Eq. 28. 2 Humphrey v. Tayleur, Ambl. 136; Morley v. Bird, 3 Ves. 628; Cowdin v. Perry, 11 Pick. 503; Wms. 8 2 Redf. Wills, 2d ed. 489; Wordsworth v. Wood, 4 My. & Cr. 641; Barber v. Barber, 3 My. & Cr. 688. 4 Wms. Pers. Prop. 5th Eng. ed. ership, the whole property vests in the survivors for the purposes designated in the will. In short, trust property, testamentary or otherwise, is generally limited to fiduciary officers as joint tenants, and such is the construction favored constantly by the court.2 While the presumption is in favor of joint ownership as regards co-executors, persons who are made owners in common as legatees are not permitted to defeat the purpose of the testator regarding the legacy, on the plea that they were also made joint owners as executors.3 § 159. Joint Ownership; How construed, etc. The doctrine of survivorship should have a beneficial, not a merely technical operation. Thus, wherever an estate is limited to two jointly, the one capable of taking and the other not, he who is capable shall take the whole.* If two persons advance money by way of mortgage or otherwise, and take the security to themselves jointly, and one of them die, the survivor will be a trustee in equity for the representatives of the deceased of the share which the latter advanced.5 And in many other ways does equity discourage the presumption of an unjust joint ownership of chattels, especially where some joint undertaking, trade, or speculation, is construed to be a quasi partnership. But wherever a joint ownership exists in a chattel, the rule of survivorship permits that joint owner who outlives his fellow owner to take the whole unaffected by any disposition which the latter may have made by his will. But where there is a burden attached to the relation, as in a lease to joint parties with a covenant to pay rent, the representatives of the deceased tenant have been held jointly and severally liable with the survivor, though having no interest left as tenants.7 An exception to the requirement of unity as to time occurs in case of a joint ownership created by will; to which there is a corresponding exception found where real estate is devised. Thus, under a bequest to A. for life, and after his decease to the issue or children of B., without words of severance, all the issue or children born in A.'s lifetime will become entitled jointly, though some may not be living when the shares of the others become vested in interest. On the death of any of them before payment, the survivors will become entitled to their shares.1 § 160. Severance of Joint Ownership. — Joint ownership in chattels, like a joint tenancy in lands, is liable to severance; that is to say, one of its constituent unities may be destroyed, so as to turn the estate or interest into an ownership in common. Thus, one of the persons interested may dispose of his interest in such manner as to sever it from the joint fund; losing, likewise, his own right of survivorship. This is severance by act of one of the parties. Or, again, joint ownership can be severed by mutual agreement of the owners. And we may often find an inference raised that severance had actually taken place, where the course of dealing between the parties jointly interested sufficiently intimates that an ownership in common was mutually established, even though no express act of severance be shown. In the English chancery, where the American rule requiring express words to create a joint tenancy is not easily available, the courts frequently rely upon slight circumstances for presuming that a severance has taken place.2 Deeds of severance are sometimes executed voluntarily by parties; and the operation of covenants in deeds of settlements is found to have the severing effect.3 § 161. Ownership in Common; Its Nature and Creation. Next as to a tenancy or ownership in common. An estate or interest of this kind exists where two or more hold by 1 See Wms. Pers. Prop. 5th Eng. ed. 276, 277. 2 See Wood, V. C., in Williams v. Hensman, 1 Johns. & H. 557. But it is held that the marriage of a daugh ter who is a joint legatee does not per se sever the joint ownership under a will. Armstrong v. Armstrong, L. R. 7 Eq. 518. See also [1891] 3 Ch. 59. 8 [1894] 1 Ch. 362. |