was given over in case of the death of the legatee
without being married and having children; Sir W.
Grant remarked, this contingency could not properly
be said to mean any thing more than the latter event;
as, legally speaking, there could be no children with-
out a marriage; and therefore to give effect to all the
words it was almost necessary to construe the copu-
lative as disjunctive. But the intention of a testator
requiring this construction must appear: and it has
even been said, that the word "or" is a disjunctive,
and not to be taken as a copulative, but where it
would make the whole clause nonsense to construe it
otherwise, and where there is an absolute necessity
for doing so.

b

In a gift to A., and in case of his death to B.; or to 3. Pufy 360 toms A. but should he happen to die, to B.: these words, as they import a contingency, and are yet applied to an event that is certain, have been understood to mean in case of the death of A. in the testator's lifetime; if therefore he survives the testator he will be entitled absolutely, and the bequest over defeated. So if legacies are given to several persons, and, if any of them happen to die, the legacy to go to such of them as shall be then living; these words refer to the time at which the legacies are payable, that is the death tod of the testator. So also where the residue was given in trust for a wife for life, and after her death to be when divided between the testator's two daughters, and in of Stal dedule.

75

ith any " Bell v. Phyn, 7 Ves. 453. Hepthe residuary on worth v. Taylor, 1 Cox, 112.

the

b 6 Ves. 560.

Cambridge v. Rous, 8 id. 12. Web-
ster v. Hale, id. 410. Ommaney v.
Bevan, 18 id. 291. Slade v. Milner,
4 Mad. 144.

• Trotter v. Williams, Pr. Ch. 78.
Post. 229. King v.Taylor, 5 Ves. 806.
respire Wild
then his

so. then

case of the death of them, or either of them, leaving
children, in trust for the children: the death of the
daughters on the same principle was considered to Fries & Time
refer only to their deaths in the lifetime of the wife .99.
so that having survived her they took the absolutely
RMDI Nr.
interest." The context of the will, indeed, has some-Busheen
times shown that the testator did not employ theses & Bean.
words in the above sense, and meant to speak gene-2.
rally of death whenever it might happen. Lord
Thurlow, in Nowlan v. Nelligan' thought it too much
to determine that "in case of death happening"
meant dying in the testator's lifetime; and the
meaning therefore must be supposed to be in the event
of the wife's death whenever it should happen. And
in another case, in which a man bequeathed to his
sister S. 1000l., "and in case of her demise" gave to
A. 800l., and to B. the remaining 2007.; and after 71.
some other legacies, gave to his sister the residue of
his property to be disposed of as she should think
proper; his Lordship decreed the sister to take a life
interest only in the 1000/., with remainder to A. and
B.: for the mode of giving the residue contrasted
with the mode of giving the particular legacy, af-
forded evidence, that one was given absolutely, and
a limited interest only in the other. Parol evidence
is of course not admissible to show the intention of a
testator in these cases.*

с

Smart

SECTION III.

"ant & Jansena MiOf Joint-tenancy and Tenancy in common. 545. De beter det dem. 41.

d

IN the civil law there was no survivorship among ·legatees; for if goods were devised to two jointly, and afterwards one of them died, his executor had his share:* and it seems in equity to have been once doubted whether there could be any joint-tenancy in personal bequests." The rule, however, of the common law has long been adopted; and if a legacy, whether pecuniary or specific, is given to two or more persons; as for example, to A. and B., or to the issue of C., and there are no words to sever the interest, the legatees will be joint-tenants; so that if one is incapable of taking, or dies before any severance of the property has been made, the others take the whole. Hence where a testatrix gave one third of the residue unto and amongst the children of her sister R. C.; another third unto the children of her niece E. L.; and the remaining third unto and amongst the children of her niece C. B.: the children of E. L. were held to take as joint-tenants, and the children of R. C. and C. B. as tenants in common. So a bequest of 400l. to the four daughters of the testator's brother was held a joint-tenancy." Where also the interest of a legacy

g

a Swinb. P. 1. S. 7. 2 Lev. 209.

b See 1 Bro. 118. Sanders v. Ballard, 3 Ch. Rep. 214.

9 Ves. 204. Scoolding v. Green, Pr. Ch. 37. Webster v. Webster, 2 P.W. 347. Keys v. Luffkin, 1 Dick. 392. Whitmore v. Trelawny, 6 Ves. 129.

• Davenport v. Hanbury, 3 Ves. 257; and see Crooke v. De Vandes, 9 Ves. 197.

f

.บ

was given for a limited time in common, the principal was held to go in joint-tenancy after that time; there being no words to show that the capital was intended to go in the same way as the interest." And in another case legatees were decreed to take joint equitable interests during the life of the executors, and legal interests afterwards as tenants in common." It seems also now settled that executors, whether they take the residue as such, or as residuary legatees, are joint-tenants; and if one therefore renounces the executorship, or the devise to him is afterwards revoked, the others take the whole.

d

Under some circumstances a joint-tenancy may be most beneficial to the legatees. Thus where a man appointed his two natural children to be his sole heirs and executors to his estate: Lord Loughborough thought it clearly a joint-tenancy; observing, that as the legatees were natural children, and could not succeed to each other, that circumstance was a strong inducement to leave it to them jointly, if the testator had consulted how to leave it to them in the best way. But in general with respect to personal, as well as real property, the Court leans against. survivorship, and will decree a tenancy in common when it can." Hence the words "to and amongst;

Crooke v. De Vandes, 9 Ves. 197; and see Jackson v. Jackson, 7 Ves 535. 9 id: 591.

Gardiner v. But, 3 Mad. 425. e 9 Ves. 598. 2 Ch. Ca. 64. Cox v. Quantock, Rep. T. Finch. 176. 2 Freem. 140. Lady Shore v. Billingsly, 1 Ver. 482. Cray v. Willis, 2 P.W. 529. Mos. 184. Willing v. Baine, 3 P.W.113. Frewen v. Relfe, 2 Bro. 220. Baldwyn v. Johnson, 3 id. 455. Griffiths r. Hamilton, 12

equally amongst;""

66

"b

equally to be divided;" "equally;" "respectively;" "between ; " "jointly and between; "f" in joint and equal proportions ;"

" h

"in equal moieties; "share and share alike;"i have been held sufficient to create a tenancy in common. So a direction that the interest of each legatee's lot or share should be applied in his education; a bequest to six persons to each of them a sixth part; a devise of a term to two persons, they paying yearly to another 251., viz.: each of them yearly 12. 10s. out of the premises; a bequest of the residue to daughters (after other gifts to them as tenants in common) for their own sole use to "be paid into their own proper hands,"" have all been construed tenancies in common. And where a

m

man bequeathed the interest of a sum of pagodas to A. for life, and after her death to his residuary legatees after-named, and then gave the residue of his estate to P. and B. as tenants in common: it was held that the pagodas were part of the residue, and the legatees tenants in common of them, as well as of the other parts of the residue.°

a Warner v. Hone, Pr. Ch. 491. Gilb. Eq. R. 146. 1 Eq. Ab. 292.

b Thickness v. Vernon, 1 Ver. 32. Hamell v. Hunt, Pr. Ch. 163. Edwards v. Fashion, id. 332. Owen v. Owen, 1 Atk. 494. Peat v. Chapman, 1 Ves. 542. Jolliffe v. East, 3 Bro. 25. Contra Cock v. Burrish, 1 Ver. 425.

Case cited 1 Ver. 32. Lewen v. Cox, Cro. Eliz, 695. Denn v. Gaskin, Cowp. 657; and see 1 Ves. 14. 2 Bro. 224. 9 East. 276. Contra 1 Ch. Ca. 239.

Stephens . Hide, For. 27.

Heathe v. Heathe, 2 Atk. 121; but see 1 P.W. 18.

• Lashbrook v. Cock, 2 Mer. 70. f Perkins v. Baynton, 1 Bro. 118.

Ettricke v. Ettricke, Ambl. 656. h Harrison v. Foreman, 5 Ves. 207. i Draper's case, 2 Ch. Ca. 64. Heathe v. Heathe, 2 Atk. 121. Perry v. Woods, 3 Ves. 204.

Dodson v. Hay, 3 Bro. 404. 1 Page v. Page, 2 P.W. 489. m Kew v. Rouse, 1 Ver. 353. Mathews v. Bowman, 3 Anstr.