What Words create an Estate for Life. ante, c. 19. $14. Fitzherbert What Words create an Estate for Will. Court certified that the plaintiff, who was the eldest son of N. Smyth, took an estate tail in the lands in question. 42. With respect to the words that are necessary to create an estate for life, those usually inserted for that purpose in deeds, are, to hold to the said A. B. and his assigns for and during the term of his natural life. But it has been already stated, that if lands are conveyed to a natural person, without any words of limitation whatever, he will take an estate for his own life; unless the grantor be only tenant in tail, or tenant for his own life; in which cases the grantee will take an estate for the life of the grantor only. 43. Under a limitation to the father for life, remainder to his issue male, and for want of such issue to the father in fee; Lord Bathurst held that the issue only took estates for life: in conformity to the opinion of Mr. Fazakerley and Mr. Wilbraham, to whom the case had been previously referred. 44. Estates for years are usually created in deeds by the words, "to hold to the said A. B., his exeYears, or at cutors, administrators, and assigns, from the day of the date hereof, for and during and unto the full end and term of twenty-one years, thence next ensuing and fully to be complete and ended:" but any other words showing the intention of the parties will be equally effective. Lit. 68. What Words create a Joint Tenancy. Tit 18. c. 1. 45. The technical words for creating an estate at will are, to hold to the said A. B. at the will of the lessor. 46. With respect to the words which are necessary to create an estate in joint tenancy; it has been already stated, that where lands are granted to two or more persons, except husband and wife, to hold to them and their heirs, or for the term of their lives, or for the term of another's life; without any re- 1 Inst. 180 b. strictive, exclusive, or explanatory words; all the persons, to whom the lands are so given, take as joint tenants. Clerk v. 2 Vern. 323. 47. A man conveyed his house and farm to trustees, upon trust that his sisters might inhabit the house, and equally divide the rents and profits between them; and the whole to the survivor of them. Resolved, that this was a joint tenancy; for although 422. the words equally to be divided sometimes in a will make a tenancy in common, yet the limitation to the survivor will oust such a construction, even in a will. · 48. In the case of Fitzherbert v. Heathcote, a ante, § 43. limitation to the issue male was held to create a joint tenancy for life. 49. Where the words of a settlement were, "to permit all and every the children to take the rents to them and their heirs for ever," they took as joint tenants. 50. A settlement was made before marriage, in trust to permit the husband to take the rents for 99 years, if he should so long live, and after his decease, to permit the intended wife to take the rents for her life, for her jointure; and after the decease of the survivor of them, upon trust to permit and suffer all and every the child and children of the body of the husband, by the wife, to take the rents of the said premises, to them and their heirs for ever, in such shares and proportions as the husband should appoint; and for want thereof, in trust to permit and suffer all and every such child and children to receive and take the rents and profits of the said premises, to them and their heirs for ever. There were three children of the marriage, who survived their father and mother, and no appointment was made. The question was, whether the three children took as joint tenants, or tenants in common. Lord Thurlow declared that according to the true construction of the settlement, the estates comprised therein were to be considered as settled on the children of the marriage in joint tenancy, subject to the appointment, which was never executed. power of On an appeal it was contended, that the purpose of the settlement was to make a provision for all the children of the marriage, and it must have been intended to make as beneficial a provision as possible. Under the first clause they would take as tenants in common. The intention of the second clause was to regulate the proportions, not to turn them into joint tenants. The estate was first given in shares and proportions; then the father was to regulate their shares; then the settlement directed how the rents and profits were to be paid, if there were no appointment. The second clause made no new provision. The heirs and assigns of the husband were not to take till all the children of the marriage were dead without issue; it was there. fore intended that the children of a child who should die in the lifetime of the husband, or his wife, should be let in to take: and in order to effectuate this purpose, the children must take as tenants in com mon. One word in the settlement implied this intent lied very strongly; it was the word every, which impli in a degree severalty; that each should take something to him and his heirs for ever: and the same word being repeated in the second clause, where it unnecessary if they were to take as joint tenants, showed the intention to be, that the children should take in severalty. The course of recent determina. tions was against estates in joint tenancy, and and to was favour tenancies in common: and the Court had taken hold of any words it could for that purpose, wherever it was possible to discern an intention that the estates should be in common, and not in joint tenancy. On the other side it was said, the objection taken from the word every was of no avail; that word was used in all cases where joint tenancies were raised. Supposing the words giving a power of appointment had even been express, as tenants in common, and not as joint tenants, that would not have affected the clause upon which the question turned; for the former clause never operated, the father having made no appointment. It therefore came to the subsequent clause; “and for want thereof, to permit all and every such child and children to take the rents, &c. to them and their heirs for ever:" not in shares and proportions; not equally to be divided, or accompanied by any words to make a tenancy in common: without such modification the words er vi terminorum carried a joint tenancy, which was the old estate krown to the law. It was contended that the intention could not be to make them joint tenants, because a child might have died, leaving a child, and the estate might have survived among the other children: but it might equally be contended, that if a child died before he could sever the jointure, it was intended he should not take his share from his brothers and sisters. Lord Thurlow said, that whether the settlement was to be considered as the conveyance of a legal estate, or a deed to uses, would make no difference; and that it was a joint tenancy. 51. Where it was covenanted in marriage articles to lay out a sum of money in the purchase of lands, to be settled on the husband and wife for their lives, Staples v. Ca. 580. with remainder to the heirs of both their bodies; and also, that certain leaseholds should be in trust for the children of the husband: the children were held to take the leaseholds as joint tenants. 52. Sir Robert Staples, being seised in fee of certain lands, and possessed of others under leases from a bishop, for terms of years, renewable on payment of fines, by articles, covenanted in consideration of marriage, that he, his heirs, executors, or administrators, would lay out 2,000l. in the purchase of lands of inheritance, to be settled to the use of Sir Robert for life, with remainder to his intended wife for life; remainder to the use of their heirs of both their bodies. And it was also thereby covenanted, that the leases for years, whereof Sir Robert was then possessed, should be in trust for the said Sir Robert for life, and after his decease, to the use of and in trust for the children of the said Sir Robert by his intended wife. Sir Robert Staples died, leaving three sons; and a question arose, whether they took the leasehold estates as joint tenants, or tenants in common. The Court of Exchequer of Ireland decreed, that they took as tenants in common. From this decree there was an appeal to the House of Lords; the appellants insisting that all the children of Sir R. Staples were clearly joint tenants of the leasehold estate. They had the same interest, accruing to them all by virtue of the same deed, and which vested in them all at one and the same time, upon the death of Sir R. Staples. There was nothing hard, severe, or unreasonable in the law of joint tenancy, there being always an equal chance of survivorship, in all the joint tenants. And wherever that equality did not subsist, as between a corporation and a private person, there could be no joint tenancy. If any of the |