#### *Elizabeth Ball, per pro. ami,*v. *E. H. Deas and Wife et al.*

Charleston,

Jan'y, 1848.

When by the terms of the will, an estate in joint tenancy at common law is crea-’ ted, and one or more pf the tenants die in the life time of the testator, the principle of the common law applies, and the survivors take the whole estate.

*Before*Johnson, Ch. *at Charleston, February Sittings,*1846.

Johnson, Ch. The late John Coming Ball, of St. John’s Berkley, by his last will and testament, dated the 11th May, 1839, bequeathed and devised as follows:

“I give and bequeath all my estate, real and personal, to my sister Lydia Jane Waring and her three children, John Ball Waring, Ann Simons Waring, and Francis M. Waring, to their heirs and assigns.”

He left some few specific legacies, made no residuary clause to his will, and appointed the defendants, E. H. Deas and Keating S. Ball, and James Simons, Esq., executors ; the last named of whom has not qualified.

Mrs. Lydia Jane Waring died in 1840, leaving her last will and testament, bearing date the 11th July of that year, whereby she gave all her real and personal estate to her three children above named. The testator died in May, 1845, leaving surviving him the complainant, Elizabeth Ball, daughter of a deceased brother of the whole blood; Ann Deas, a sister of the whole blood, and the above named children of Mrs. Waring, who was a sister of the whole blood, and Keating S. Ball, a brother of the half blood. All the parties are before the Court. The question is whether the devise and bequest to Mrs. Waring and her children has lapsed, as far as she is concerned, by her death before the testator.

*2531*an

I do not think that this case can be distinguished in princi-pie from Executors of *Herbemont*v. *Thomas.*In that case, Mrs. Herbemont directed by her will, that certain property specified should be divided into ten shares, and after disposing of six of these shares, proceeded as follows, “and I devise and bequeath the remaining four-tenths to my four neices in Georgia, daughters of my brother Sampson Neyle, to Mary Bryan Neyle, Eliza Hesther Neyle, Charlotte Neyle and Emily Neyle.” Mary Bryan Neyle married, and died, leaving a husband and children, before the death of testatrix. The surviving sisters claimed the four-tenths as ajoint tenancy.

The Court of Appeals held that the words above recited were such as would have created a joint tenancy at common law, one of the acknowledged incidents of which was that upon the death of any of the tenants, either before or after the vesting of the right, the survivors would take the whole. Our statutes have not altered the principle as acknowledged at the common law, where the interest has not vested. And therefore, as Mrs. Waring died before the testator, and consequently before the interest could have vested, the principle of the common law must apply, and the right of survivorship take effect.

There is nothing else in the will of John Coming Ball which can limit or qualify the terms of the devise to Mrs. Waring and her children, nor indeed was it contended at the bar that there was. The bill must therefore be dismissed. And it is so ordered.

The complainant appealed, and submitted that it should have been decreed by the Court, that the testator died intestate as to one-fourth of his estate, on the following grounds.

1. Although it is a settled rule in the English Chancery, when, by the terms of a devise, an estate in joint tenancy is created, and one or more of the devisees die in the life-time of the testator, that the survivors take the whole estate; yet the principle of construction on which the rule depends, would lead to the opposite in this State.

In the construction of wills, the primary object is to ascertain, and give effect to, the intention of the testator; and in the above case, upon the death of one or more of the jomt devi-sees, the estate is disposed of *according to its nature ;*and the surviving devisees take the same interest as they would have taken if all the devisees had outlived the testator; for the *jus accrescendi*being a well known and distinguishing incident of joint tenancy, the testator may fairly be presumed to intend each of his devisees to have the right of survivorship among themselves, *according to the nature of the estate.*For the same reason, when this is not an incident of the estate created by the terms of the devise, it cannot be presumed that the testator intended what was contrary to the nature of *26the estate. In England every joint tenant may be said, particularly, to have a right to an equal share of the estate, and also the *jus accrescendi :*In South Carolina he has not the-. latter, and therefore the principle of construction being the same in both jurisdictions, its application to contrary systems will lead to opposite conclusions.

2. The rule of English Chancery in such cases is opposed to the principle that wills are ambulatory until the death of testator, and in fact partly refers the *operation*of the devise to the life-time of the deceased devisee.

Joint tenancy has respect to the *ownership of*estates. The *persons*who are to take, as objects oí a testator’s bounty, are more likely to be the objects of his consideration than their *relations*to the estate devised. It cannot be said that the deceased devisee was ever joint tenant with her co-devisees, for there was no devise until *after*his death; nor that any mutual right of survivorship, as to the subject of the devise, could exist for the benefit of the living, *between*the living and the dead. If the legal refinement that each devisee is entitled to the whole, can *preserve*the estate to those who are living, when the' will takes effect, why should not its correlative, that *all*are entitled to the whole, prevent the vesting of the estate because *all*are not living to take ?

3. In the case of Herbemout and Thomas, it seems to be assumed that although the A. A. 1791 abolishes the right of survivorship among joint tenants, where an estate of joint tenancy really exists ; yet it is a subsisting incident of joint tenancy, where such an estate is *prospective*and *not actually*vested: whereas it is respecfully submitted that in the case of a devise to joint devisees, which has no effect until the death' of the testator, the right of survivorship among the living de-visees depends only on a rule of construction derived from an imperfect analogy, and from the presumed intention of the testator — and that the A. A. 1791 is contrary to any such construction, since it cannot be supposed that the rule now in question, would ever have been adopted if joint tenancy had always been what it is now and has been since A. A. 1791, in respect to the right of survivorship.

Had Mrs. Waring survived the testator and afterwards died, her share would not have survived to her co-tenants; (as it would have done in England,) yet by an evasion of the A. A. 1791, and a blind adoption of the English rule, if she never lived to take at all, *her share*would survive to them.

4. The rule in Herbemont and Thomas, while following the decisions of England, without reference to the principle of construction on which they depend, and disregarding the effect of the A. A. 1791, by an unnatural and artificial construction of its terms, is opposed to the spirit of the English Chancery, which has always been aversé to devises and *27legacies in joint tenancy, and only construes them such when the terms of the will can bear no other interpretation; and_ also to the maxim of the civil law, (from which we ours with regard to wills,) that “there is no survivorship among legatees.” Joint tenancy, among devisees who are not *all living,*when the devise takes effect, is a solecism not recognized in the ecclesiastical Courts.

NorthRop, for the appellant.

Johnston, Ch.

The Court is satisfied with the decision in the case refeired to by the Chancellor, and this case cannot be distinguished from that.

It is, therefore, ordered that the, decree of the Chancellor be affirmed, and the appeal dismissed.

The whole Court concurred.

*Decree affirmed.*