#### *Isaac Telfair, executor of Ann Timothy, deceased,*vs. *M. L. Howe et al.*

Testatrix bequeathed as *follows:*— “ 1 direct my executors to pay over the residue oí *my*estate,” &c. “ to the American Bible Society of New York, and to the American Missionary Society of New York, to whom I leave or bequeath it:” the American Bible Society of New York was a body corporate; and no such Society as the American Missionary Society was in existence or ever had an existence: *Held,*that the American Bible Society was not entitled to the whole of the residue"; and that, as to the moiety intended to be bequeathed to the American Missionary Society, the testatrix had died intestate, and the same was distributable among her next of kin.

If the American Bible Society of New York and the American Missionary Society of New York were both in existence, and were capable of'talcing an estate in joint-tenancy, by a proper construction of the terms of the bequest, — regard being had to the different objects of the two societies, — no such estate was intended to be created.

A corporation cannot take an estate in joint tenancy, either jointly with another corporation, or with a natural person.

*Before*Dunkin, Oh. *at Charleston, June,*1850.

Dunkin, Ch. By tbe 25th clause of Mrs. Ann Timothy’s will, it is provided as follows, viz :■ — “ I direct my executors to pay over the residue of my estate, or bonds, or money, to the American Bible Society of New York, and to the Missionary Society of New York, to whom I leave or bequeath it.”

The Master has reported that no such society is in existence, as the Missionary Society of New York.

The question is presented, whether the American Bible Society of New York are entitled to the whole of the bequest, or whether a moiety is not distributable among the next kin of the testatrix.

The testatrix seems, in former clauses of her will, to have disposed of the whole of her real estate, and from this circumstance, as well as from the terms of the gift, it is very clear that the bequest was intended to apply only to personalty.

In cases of joint tenancy, the general rule is, that if the devise fail as to one of the devisees, from its being originally void, or subsequently revoked, or by reason of the decease of the *236devisee in tbe testator’s lifetime, the other, or others, will take the whole. But the rule is different as to tenants in common, whose shares, in case of the failure or revocation of the devise *to*any of them, descend to the heir at law, (2 Jarman on Wills, 167). The rule is equally applicable to bequests of chattels, to money legacies, and residuary bequests, as to a devise of real estate, (Id. 159). But even in case of devises to individuals, the Courts have manifested a strong disposition to give such construction to the devise as would create a tenancy m common ; and “this anxiety (say the authorities) has been dictated by the conviction that this species of interest is better adapted to answer the exigencies of families than a joint tenancy.” Any expressions importing division or referring to devisees as owners of distinct interests, or simply denoting equality, will have this effect. In *Marryat*vs. Townly, (1 Yes. sen. 103,) Lord Hard-wicke says: i£ It happens luckily to assist the Court, that the drawer of the will has inserted directions for the trustees to convey, and wherever there are such directions for the trustees in whom ' the legal estate is vested, the Court has held it in its power to mould it so asTiest to answer the intent of the testator.” If there were no more in the case under consideration, the Court might be well warranted in the conclusion from the character of the donees, that when the testatrix directed her executors to pay over the residue of her estate, or bonds, or money, to the American Bible Society, and the New York Missionary Society, she intended the amount to be paid to them in equal proportions, for the purposes of their respective institutions, and that it was, therefore, a tenancy in common.

But I do not find that this doctrine has ever been applied to corporations. Littleton says “if lands be given to two men, and to the heirs of their two bodies begotten, the donees have a joint estate, &c.; but if lands be given to two Abbots, as to the Abbot of Westminster, and to the Abbot of St. Albans, to have and to hold, to them and their successors, in this case they have presently at the beginning, an estate in common, and not a joint estate. And the reason is, that every Abbot, before that *237he was made Abbot, was but as a dead person in law, and when he is made Abbot, he is as a man personable in law only to purchase and have lands, or tenements, or other things, to the use of his house, and not to his own proper use, as another secular man may, and, therefore, at the beginning of their purchase, they are tenants in common ; and if one of them die, the Abbot which surviveth shall not have the whole by survivor,, but the successor of the Abbot which is dead shall hold the moiety in common with the Abbot that surviveth,” &c. Co. Lit. Lib. 3, cap. 4, sect. 296.

In the Commentary; Lord Coke says, — “ In this case of the two Abbots, in respect to their several capacities, albeit the words be joint, yet the law doth adjudge them to be severally seized.” And the &c. of Littleton implies (he says) that the doctrine is equally applicable to every body, politic or corporate, whether regular or secular. They take in their politic capacity, and are tenants in common, because they are seized in several rights, &c. And so is the rule, if lands are given to an Abbot and a secular man, they have an estate in common *causa qua supra.*

In Mr. Hargraves’s note on these sections, he remarks, “ Here joint words are construed to make several estates in respect of *the several capacities*of the donees. In a former part, *vesting at several*times, makes joint words to operate severally.”

It was suggested in the argument, that these rules were only, applicable to devises of real estate, and that such was the dictum of Lord Coke. It is true, Lord Coke says, if goods be granted to a bishop, or to an abbot and a secular man, they are joint tenants, because *they take not in their politic capacity.*But, says Mr. Hargrave, “ in a former part, Lord Coke explains the reason of this to be, that no chattel can go in succession in the case of a sole corporation, no more than a lease for years to one and his heirs can go to heirs, but there are exceptions to this rule,” &c. However this may be, it is very certain that the legatees in this case can take only in their corporate capacity, and fall directly within the reasoning of Littleton’s text.

*238The joint words used in this bequest must, therefore, he construed to make several estates, in respect of the several capacities of the donees. Generally, a lapsed legacy falls into the residuum, but here, a part of the *residuum*itself is the lapsed legacy; in such case, as was held in *Page*vs. *Page,*(2 Stra. 820,) it is regarded as undisposed of, and must go to the next of kin of the testatrix.

It is declared that the parties who are next of kin of the testatrix, as set forth and admitted in the pleadings, are entitled to the moiety of the residue of her estate, ineffectually bequeathed to the New York Missionary Society.

The defendant, the American Bible Society of New York, appealed from the decree, because, it is respectfully insisted, the Chancellor erred in so construing the will of *Mrs.*Timothy, as to declare that the parties who are next of kin of the said testatrix, are entitled to the moiety of the residue of her estate ineffectually bequeathed to the New York Missionary Society.

*Memminger,*for appellant.

Porter, contra.

Dargan, Ch.

delivered the opinion of the Court.

The question made in this appeal arises under the 25th clause of Ann Timothy’s will; which is in these words: — £! I direct my executors to pay over the residue of my estate, or bonds, or money, to the American Bible Society of New York, and to the American Missionary Society of New York, to whom I leave or bequeath it.” From the Master’s report it appears, that no such society exists, as the American Missionary Society of New York: and it has not been shewn, indeed it is admitted that no such society ever had an existence. On the part of the Bible Society it is contended, that the clause in question creates an estate in joint tenancy; and that there being no such society in existence as the American Missionary Society of New York, the said Bible Society is entitled to the whole legacy given in that clause by virtue of the *jus accrescendi.*The circuit decree negatives the construction, which would make the estate given in the 25th *239clause, a joint tenancy, and from the circuit decree on this point, an appeal has been taken.

The estate in joint tenancy presents some of the most artificial rules of subtle distinctions of the ancient common law. It was once highly favored in England, (Master of the Rolls in *Morley*vs. *Bird,*3 Ves. 630) doubtless for reasons that were feudal in their character, and influential in their day; hut which have long since ceased to operate. For whatever may have been the causes which led to the origin of this estate, or which recommended it to our rude and warlike ancestors of the feudal period, it is undeniable that, at this day, it has grown into disfavor in English and American Courts: more especially in Courts of Equity.

The learned Judge in the case already cited, says that “the ancient law on this subject still prevails. And unless there are words to sever the interest taken, it is at this moment a joint tenancy, notwithstanding the leaning of the Courts lately in favor of a tenancy in common. A legacy of a specific chattel, a grant of an estate, is a joint tenancy. It is true, the Courts, seeing the inconvenience of that, have been desirous, wherever they could find any intention of severance, to avail themselves of it: and their successive determinations have laid hold of any words for that purpose.”

Many distinctions prevail in the Court of Equity, in reference to this estate, that are not recognized at law. Thus, where two or more persons are engaged jointly in trade, and have debts due to them as partners, though at law they are joint tenants, and, on the death of one of them, the legal estate, at law, vests in the survivors — in equity the right of survivorship is not allowed, and the survivors are obliged to account to the representatives of the deceased partner: or, if two persons purchase real estate jointly with the view of carrying on trade, it is in equity a case, not of joint tenancy, but of tenancy in common. *Lake*vs. *Craddock,*(3 P. Wms. 158). And, if money is laid out jointly upon an estate held in joint tenancy, with a view to *240its improvement, that, in this Court, is a severance, *Lyster*vs. Dolland, (1 Ves. Jr. 434).

The common law institutions of property have undergone many mutations in the progress of ages. Some of its harsher and most inconvenient rules have been abolished by the Legislative power: and others have been gradually and insensibly modified by the course of judicial decisions, and moulded so as better to conform to the convenience and sentiments of modern society. The most prominent, and I may say the most odious feature or incident of this estate (the right of survivorship) which in almost every instance defeats the intention of the testator, was abolished by our Act of Assembly of 1791. The Act did not abolish joint tenancy itself, but only this feature of the *estate.*It provided, in substance, that where two or more persons are *seized*or *possessed*of real or personal estate in joint tenancy, and one of them dies, the right of survivorship should not he allowed, hut the share or interest of the deceased joint tenant should go to his heirs at law or legal representatives. This left the rules of the common law in force where the deceased tenant for life had not been seized or possessed in his lifetime. In *Herbemont*vs. Thomas, (Chev. Eq. 21,) the question turned upon the construction of the words “ seized or possessed,” which occur in the Act. The testatrix had given a legacy to six persons (her nieces) in words which, at common law, would have constituted „them joint tenants; It happened that some of the legatees had died in the lifetime of the testatrix: and the question was, whether the survivors took the whole legacy by virtue of the *jus accrescendi,*or whether the shares of the deceased joint legatees lapsed under the provisions of the Act of 1791 into the residuary estate. It was clear, that at common law, where a devise or bequest is given to two in joint tenancy, and the devise or bequest fail as to one, from its being originally void, or from its being revoked by the testator, or from the death of one of the devisees or legatees in the testator’s life, the right of survivor-ship exists, and the survivor takes the whole as joint tenant. *241The decision of the Court was that, as the will was ambulatory until the testatrix’s death, and no right or title could vest in the legatees until that event had occurred, they could not be considered as having been “ possessed” of any estate under the will, and the case by a fair interpretation of the Act, could not be regarded as embraced within its provisions. This decision has recently been followed by that in *Ball*vs. Deas, (2 Strob. Eq. 24,) where the same construction prevailed. The Act may, therefore, be considered as having received a settled interpretation in this particular. The Act of 1791, therefore, does not conflict with the claims advanced by the appellants.

I have before adverted to the tendency, or leaning, (as the phrase is) of courts in modem times,- — particularly Courts of Equity, — to avail themselves of any strong equitable circumstances, or of any' words employed by the testator in his will, that would imply a severance, to give such a construction, as would make the estate a tenancy in common, and not a joint tenancy. It is always a question of construction, and the object is to get at the intention of the testator; which must, however, be done in conformity with established rules of interpretation. The right of survivorship, as I have said, in almost every instance defeats the intention, and if the Court can perceive, either in the words or implication of the will, an intention not to create a joint tonancy, it will carry that intention into effect. Thus, in *Marryat*vs. *Townly,*(1 Ves. sen. 103, cited in the circuit decree), Lord Hardwick, in construing an estate a tenan-ancy in common, and not a joint tenancy, laid great stress upon the directions of the testator, that the trustees, in whom the legal estate was vested, should convey it to the devisees.— *“*Wherever,” says his Lordship, “ there are such directions for the trustees, in whom the legal estate is vested, the Court has held it in its power, to mould it so as best to answer that intent of the testator.”

We will suppose the American Missionary Society of New York to have had an existence. This testatrix believed so, *242when she executed her will. When she, by■ the 25th clause, directed her executors to pay over the residue of her estate, &c. to the American Bible Society of-New York, and to the American Missionary Society of New York, did she mean that they should pay it over to the two societies on their joint receipt and discharge *1*Or would the receipt of one, have been a discharge ,as against the claims of the other *1*I do not think the testatrix could have so intended. In what respect are directions for the executors to pay over, different, in their effect, upon the construction, from directions for trustees to convey ? In the latter case, we have seen Lord Hardwick holding, that such instructions entitle the Court to mould the construction *“*so as best to answer the intent of the testator.”

The objects of the American Bible Society of New York, and of the American Missionary Society of New York, (supposing the latter to have existed,) were entirely different. The purpose of one was the distribution of Bibles; that of the other was the promotion of Missions. They could not co-operate in the same field of labor, and the same work of Christian and benevolent enterprize by the possession of a joint fund without a severance or division: or without departing from the objects of their organization. The testatrix must be considered as implying in her donation, that which would have been the immediate and inevitable result, if the fund could or had come into the joint possession of the two societies: namely, a division or separation of their interests. In no other way could the fund have been dedicated to the use which the testatrix designated: and she ought to be considered as having intended a division in the first instance. Such would be my conclusion, if the two societies to whom the testatrix bequeathed the residuum of her estate, had been, by the common law, entitled to take, as natural persons are entitled to take, in joint tenancy.

But there is another insuperable impediment in the way of law and authority to the success of this appeal. The Bible Society of New York is a corporate body. It is clear that, by the *243principles of the common law, none but natural persons can take in joint tenancy. A corporation cannot take this estate, either jointly with another corporation, or with a natural person. The reason assigned in the early writers is, that they hold in different capacities and in different rights. Lord Coke, in his commentary upon the passage quoted in the circuit decree from Littleton, gives, very clearly, his views as to the reasons which gave rise to the distinction between natural persons and corporate bodies in this particular. He *says*— “ The &c. in the end of this section implieth, that so it is, if any body politic or corporate, be they regular as dead persons in law (whereof our author here speaketh) or secular: as if lands be given to two bishops, to have and to hold to them two and their successors : albeit the bishops were never any dead persons in law, but always of capacity to take, yet seeing that they take this purchase in their politic capacity, as bishops, they are presently tenants in common, because they are seized in several rights : for the one bishop is seized in the right of his bishoprick of the one moiety, and the other is seized iii the right of his bishoprick of the other moiety, and so by several titles and in several capacities : whereas joint tenants ought to have it in one and the same right and capacity, and by one and the same joint title.” (Co. Litt. Lib. 3, cap. 4, sect. 296). Authorities to this effect might be multiplied to a great extent; I cite some of them. 2 Saund. 319 ; *Justice Windham’s*case, 5 Co. 8, *a;*2 Cru. Dig. 491; Finch, 83; *Willion*vs. *Berkeley,*Plow. 239. A modern writer (2 Crabb on Real Prop. §2311, m. p. 945) says, the Queen cannot hold an estate in joint tenancy. She is not seized in her natural capacity, but in her royal and politic capacity, *in jure*corones, which cannot stand in jointure with the seizen of the subject in his natural capacity. He asserts the same doctrine in regard to all corporate bodies. I doubt very much, if a single case, either English or American, can be adduced, where a corporation or body politic has been held to be seized or possessed of an estate in joint tenency.

*244It is ordered and decreed that the appeal he dismissed, and the circuit decree rendered on the hearing at June Term, 1850, he affirmed.

Johnston, Dunkin and Wardlaw, CC. concurred.

*Appeal dismissed.*