| Pa. | Oct 9, 1813
The counsel for the plaintiffs admit the general maxim, that the right of survivorship is preferred to the last will by the common law; but they contend, 1st. that the law of Pennsylvania differs in this respect from the common law; and 2dly, even supposing that it were not so, yet under the circumstances of this case, a court of chancery would consider Patterson and Forrer as tenants in common, and therefore the verdict being right, there ought not to be a new trial, even though the judge might have stept a little too far in stating the effect of the will as to the severance of the jointure.
1. At the time of Patterson!s. death, we had no act of assembly expressly affecting an estate in joint-tenancy, although one has been made since, which has no operation on the present case. But reliance is placed on the act “ con* “ cerningthe probate of wills” &c., passed in 1705, by which it is enacted, that a will proved as therein directed, “ shall “ be good and available in law, for the granting, conveying, “ and assuring of the lands or hereditaments, thereby given ££ or devised, as well as of the goods and chattels, thereby “ bequeathed.” The argument is, that the will operates as Migrant or conveyance, and therefore severs the jointure. But I see nothing in the act to warrant this inference. The objedt of the law was, to enable all persons to dispose of their devisable lands by last will, but not to alter the nature of their estates. It was never supposed that a tenant in tail, might dispose of his lands by devise, so as to bar his issue» When a will takes effect, it operates as a species of conveys
2. Whether the verdict is right, is not altogether clear. There certainly are cases in which equity will consider joint-tenants as tenants in common; and one of those cases is, where a purchase of land is made by two persons, with a view to expending large sums of money in the improvement of it. It is said that this purchase was made with a view to the erection of iron works. Perhaps it was. One of the witnesses said that he understood so; but he did not say when or from whom he got his information. A stronger circumstance appears in the articles of agreement for the purchase, previous to the conveyance. Part of the consideration was two tons of iron, to be made in the years 1T94 and 5, (two years and more after the date of the articles). In confifmation of an intent to hold as tenants in common, the plaintiffs rely also on the deed from Forrer and wife, conveying the land to Douglass and others, in which it is recited, that Patterson “ died seized in part of the said undivided “53 acres of land, having made his last will and testament, “ by which he authorized his executors to sell his lands, for “ the purposes mentioned in the said will.” On the other hand it is said, that no iron works were erected, and that after the death of Patterson the defendant expended upwards of 4000 dollars in improvements on his private account. With regard to the recital in the defendant’s deed to Douglass, he says that it was done to satisfy the purchaser, and not from any doubt of his own title. In this mixt kind of case, consisting of law and fact, it would have been proper for the Court to inform the jury, that the will of itself' could have no effect in severing the joint-tenancy, and then the material circumstances might have been laid before them, and the law explained^ as applied to those circumstances. But it may be that the jury, understanding that the right of survivorship was defeated by the will, might not,think themselves at liberty to enquire farther into the case. In
after stating the case very fully, delivered his opinion to the same effect.
The plaintiffs’ counsel have insisted that a co-tenant may ¡devise his interest in lands held in joint-tenancy by the laws of Pennsylvania. To prove this, it has been urged, that wills as to lands shall have the same forqe and effect as legal conveyances. 1. Dall. Laws, App. 22. No. 15. Written wills proved by two witnesses, shall be available in law to^convey and assure the lands devised in Pertnylvania under the old act of 1705, Sec. 1. 1 Dall. Laws 53. But these provisions evidently presuppose an estate in the lands devised, capable of being passed by will. It . will not "be said, that because Under the act of 16th January 1799, (3 Smith’s Laws 338), tenant in tail may bar the estate tail by deed acknowledged and recorded as the act specially points out, he may effect the same thing by his last will. Nor, if the real state of the law was in unison with the plaintiffs’ doctrine, could there be any necessity to enact the law “ concerning joint-tenancy” on the 31st March 1812, (5 Smith’s Laws 395), whereby joint- . tenancies in all cases, except trusts, are transmuted into tenancies in common. The distinguishing feature of joint-tenancy is, that it disqualifies the party from devising his interest. 3 Burr. 1496. He holds under the original grant merely; and unless the joint-tenancy is severed during his life, .the jus accrescendi arises as an inevitable consequence from the nature of the estate. This affords a sufficient answer to the argument deduced from Patterson’s last will. Forrer in a legal view was no further responsible for assets, than as to the legal right of Patterson in the premises, and was put to no election by a devise to his wife of the one undivided ninth part of the residue. The recitals in his deed corresponded with the truth of the case in every particular; but it by no means appears that he sold under the authority in the will given to the executors or the survivor. Upon' this head, the deed is at least equivocal.
The unequal sums paid by Patterson and his widow and Forrer, cannot afford any just ground of exception from the general rule of law. If Forrer has paid a less sum than he was liable to pay under the terms of his original contract,
This is not a mercantile case. It is not established clearly that the premises were bought as a forge seat. Certainly no partnership appears by the evidence to have been entered' into (for that purpose; nor were any erections made, or even meditated, for the accomplishment of that object!
Upon the whole, I freely admit that the case bears hard on the children of Patterson. This in the nature of things is the case in all instances of estates in joint-tenancy, .where the chance of survivorship is not perfectly equal, and where the prospect of families in life rests on the event. Joint-tenancies are seldom or never intended by the purchasers of lands. The law acts by general rules. Where such words are made use of in a deed, as the law will construe to be a joint-tenancy, legal consequences must necessarily flow therefrom, and we are bound to follow the results. If the joint tenancy was not severed in the life time of Patterson, his will could not operate upon it, nor defeat the jus accrescendi.
I am of opinion that the judgment of the Circuit Court be reversed, and a new trial be awarded.
Judgment reversed.'