The opinion of the court was delivered by
Williams, Ch. J.
This case comes before us on an appeal from the court of probate. Mrs. Minot on 24th June, 1826, made her will, wherein she gave and bequeathed to her step-daughters, Elizabeth Swan, Sarah C. Thomas, and Mehitable L. Richards, a legacy which is set forth in the case agreed on by the parties.— In the life time of Mrs. Minot, Elizabeth Swan and Sarah C. Thomas, deceased. Subsequent to their decease, the testatrix made a codicil, wherein she gave to her executor, Mr. Gilbert, all lapsed legacies ; and also made him her residuary legatee. He was made executor by the original will. On presenting his account to the court of probate, the executor, Mr Gilbert, asked an allowance of the sum of $278,86, being two thirds oí the value or amount of the legacy bequeathed by Mrs. Minot to her step-daughters before mentioned, the children of Mrs. Minot claiming that it belonged to him by the will, as a lapsed legacy. This claim was disallowed, and an appeal taken by the executor. The case involves the construction to be placed on the clause of the will before mentioned. It is contended on the one side, that the whole legacy belongs to the representatives of Mrs. Richards, by virtue of the jus accres-cendi; and on the part of the executor, that the testatrix intended by the will to give to the legatees, Mrs. Swan, Thomas, and Richards, a tenancy in common, in the several articles therein bequeathed. It is an admitted principle, that in the construction of wills, it is the duty of the courts at all times, to give effect to the intention of the testator, when it can be done, consistent with the rules of law. The intention of the testator has been (not unaptly) called, the pole star, by which the courts must steer, in construing a will. Yet the intention has tobe ascertained, and is frequently controlled *208by technical rules, and by the interpretation, which the law places upon technical expressions. By the application of these rules, it has sometimes been the case, that the wishes of a testator have been entirely frustrated, that is, the intention has been declared by the 0peratjon 0f the rules of law, to be different from what was known to be the real design of the testator. We must, however, in the construction of all instruments, apply to them the known and established principles which have been settled, and take it for granted that every person executing a written instrument, is acquainted with the rules of construction which the courts adopt, and that they frame their instruments accordingly. The 'inquiry in the present case is, whether the testatrix intended to constitute’ the three sisters,' joint tenants, or tenants in common. If they were joint tenants, the jus accrescendi attaches by the operation of the law; and we are not at liberty to disregard the intention ascertained by the rules of law applicable to the case, for fear of consequences. If they were joint tenants, it is immaterial whether one or more of the legatees died before or after the death of the testatrix, the survivor at the death of the testatrix takes the whole. Among the rules laid down, we find none better established or more fully recognized than this, that when a legacy is given to two or more, and there are no words of severance, it is held to be a joint tenancy, subject, however, to certain exceptions; and although it is true, that courts will lay hold of almost any words to make a tenancy in common where it is manifestly for the interest of the legatees, yet if there are no such expressions they must consider that a joint tenancy was intended. Now I do not know that we are.at liberty to disregard the rules of common law on this subject, upon principles of policy, or to say that they are contrary to the genius of our government ; nor do I know that they are contrary either to policy or the genius of our government. If our legislature has altered the doctrine of the common law upon this subject in relation to real estate, a court may not go further, and alter it also in relation to any other estate. The legitimate rule upon this subject would be, that if the legislature has altered the common law in relation to real estate, and not as to personal, they were satisfied with the law as it was, in regard to personal estate. Words, by the common law, are construed to create an estate in joint tenancy, rather than in common ; because it is considered as most beneficial to the tenants, and therefore they shall take a joint estate rather than an estate in common, unless words are introduced to manifest an intention to the contrary. And here, for the same reason, it is enacted that the *209same words shall constitute a tenancy in common. But the statute has gone no further, and has adopted no such principles for the construction of wills or other conveyances of personal estate. The various exceptions which have been introduced to the general rule, as it respects legacies, prove the rule. None of the reasons which induced the courts to make these exceptions, will apply to a bequest similar to the one under consideration. This was a specific legacy of property which could not well be divided equally, such as musical instruments, pictures, and paintings. The principles of law before referred to, should therefore govern in construing this legacy to be a joint tenancy. From an examination of the will, it is apparent that the testatrix, or the person who drew her will, perfectly understood the language proper to be used. Both in her will and in the codicil she uses the appropriate expression, where a tenancy in common was intended. And from her using the expression in the one case and not in the other, the only legitimate inference is, that she intended the rule of law upon this subject should be adhered to. At the time the codicil was made the testatrix was undoubtedly aware of the decease of several of the legatees, and she was therefore desirous of altering her will, both in respect to the devise to her brother, Elial .Gilbert, and also in other respects. She provides specially for the property which she had before devised to him, as well as for the property devised to the children of her sister Abagail, two of whom were dead. It is not to be believed that she intended to alter the bequest already made to the children of her husband, by the general beqeust of all lapsed legacies, or of the residue of her estate to Mr. Gilbert, the executor. She would undoubtedly have mentioned that legacy particularly, had she intended that any part of it should go to him.
I have already remarked that, from the nature of the property, it was to be inferred that a joint tenancy was intended, the property was not capable of a just and perfect division. Although the value of it might be estimated by appraisers, at so much in cash, and the value of the different articles, so appraised, might have been divided into three parts. Yet it is evident that the value, either to the testatrix or legatees, could not be estimated in cash. A piece of plate — a musical instrument — a family portrait, or picture, would derive its value in a great measure from other than pecuniary considerations. It was, therefore, altogether desirable, that these sisters should have the property as joint owners, and that it should not be subject to a division. And furthermore it is not to be believed, that at the time of the making of this codicil, when two of *210the sisters were deceased, that the testatrix could have intended that this property, so valuable to the children of her husband and 0p so xittio comparative value to any one else, should be divided between the surviving daughter, of her husband and a relation of hers, not of kin to that daughter. If such was her intention it should have been plainly manifested, and not left to be inferred from general terms. Whatever opinion, therefore, we may form of the wisdom or propriety of the rule of law which governs this case, we cannot but be satisfied that its application to this particular legacy, is both right and proper, and that the testatrix was aware of it at the time she made the codicil.
The decree of the court of probate is therefore affirmed.