Arnold v. Jack's Executors

• Decision Date: 01 May 1855
• Citation: 24 Pa. 57
• Parties: Arnold versus Jack's Executors.
• Court: Pennsylvania Supreme Court

24 Pa. 57

Arnold versus Jack's Executors.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Westmoreland county.

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White and Cowen, for plaintiff in error.—It was contended that Henry Jack, the testator, intended his devisees to take as joint-tenants. He used the term "joint-tenants," which being technical terms, it is to be presumed that he used them in their legal sense: Doug. 340; 6 Durn. & East 352; 4 Ves. 329; 5 Id. 401: unless the context indicates the contrary. If the devisees took absolutely in common on the death of the testator, then the estate devised could not go to "the heirs of the survivor." The restraint upon alienation should also have some meaning. If the devisees took as tenants in common, the restraint was inconsistent with such interest; but, if as joint-tenants, it prevented the survivor from losing his right of survivorship. If the testator intended the devisees to take absolute estates upon his death, there was no reason for the restraint without his own consent.

It was further contended, that the Act of 31st March, 1812, did not interdict a right of survivorship expressly given; that by the said Act it was merely meant to declare that such a right would no longer be implied, and that it did not forbid either a grantor or devisor from creating, in express terms, an estate fettered with a limitation of the fee over to the survivor; or from creating a joint-tenancy by express words.

It was further contended that the limitation "to the survivors or survivor of them, and the heirs of said survivor," was not meant to provide against the death of the devisees during the lifetime of the testator. One of the reasons for the construction, limiting the death to the life of the testator, was that when the gift was immediate, it was to be presumed that the intention was that the devisees should take as tenants in common, which was inconsistent with indefinite survivorship: 2 Jarman 631; 10 Barr 245; 1 Harris 152. But here the devisees take expressly as "joint-tenants," which is inconsistent with a limitation of survivorship within the life of the testator. The estate also is limited to the heirs of the survivor. The devisor conferred upon the devisees the power to grant a fee, which was not inconsistent with a limited estate in them; and the restriction, that after the death of one of the devisees it should require the concurrence of both of the survivors to convey, evinces a clear intention not to vest an estate of inheritance in any of the devisees except the survivor.

Foster, for defendants in error.—Since the Act of 31st March, 1812, the mere use of the terms "joint tenants" does not create a joint tenancy; but it is contended, on part of the plaintiff in error, that it was the intention of the testator that the last survivor should take the whole at whatever period of time it occurred.

A limitation to survivors will not be construed to mean an indefinite survivorship, unless by the use of express words it appear that the testator meant that the last survivor should take the whole: 2 Jarman 450. The words "to my brothers, &c., as joint tenants, and the survivors and survivor of them and the heirs of said survivor," do not expressly indicate that an indefinite survivorship was intended by the testator, inasmuch as the use of the word survivors indicated that the testator intended to refer to a period when two only of the three might be living. Any intimation by a testator of a division or a severalty of interests, is sufficient to make a tenancy in common: 5 Binney 20; 2 Jarman 117. The words relative to assigning, referred to the manner in which the estate was to be enjoyed, and not as indicating the kind of estate which was to vest in them. Where the testator speaks of the survivor being allowed to assign, he meant HIS OWN SHARE, and not the whole estate: The case of Johnston v. Moore, 10 Barr 245, cited. In all cases where there is a devise to two or more, and to the survivors and survivor of them and the heirs of the...