The Court leans to a common. C. What creates a tenancy in common. 1. The Court leans towards a tenancy in common, and tenancy in will prefer it, when there is a doubt, or the testator has given the legatees a choice between a joint tenancy and tenancy in common. Booth v. Alington, 3 Jur. N. S. 835; 27 L. J. Ch. 117; 5 W. R. 811; Oakley v. Wood, 16 L. T. N. S. 450; 37 L. J. Ch. 28. Jointly and So in several cases where there have been such words as equally. "jointly and equally" the Courts have held the gift a tenancy in common. Ettricke v. Ettricke, Amb. 656; Perkins v. Baynton, 1 B. C. C. 118. What words create a common. 2. Words of division or distribution, such as "to be divided," or "equally," or "between," or "amongst," or tenancy in "respectively," make a tenancy in common. Vanderplank v. King, 3 Ha. 1; Campbell v. Campbell, 4 B. C. C. 15; A.-G. v. Fletcher, 13 Eq. 128. See Re Moore's Settlement Trusts, 10 W. R. 315. Part or share. And the use of the word "share," or similar words, with reference to the interest of the legatees, or even the word "participate," has the same effect. Ive v. King, 16 B. 46; Paterson v. Rolland, 28 B. 347; Robertson v. Fraser, 6 Ch. 696. See Alloway v. Alloway, 4 D. & War. 380. Effect of a 3. And it has been held, that where there is a gift to a gift at class at twenty-one, so that some may take vested and others contingent interests, they take as tenants in comWoodgate v. Unwin, 4 Sim. 129; Hand v. North, 12 W. R. 229; 10 Jur. N. S. 7. twenty one. Incidents inconsis tent with a joint tenancy. mon. 4. If there are any incidents attached to the gift inconsistent with a joint tenancy, it will be construed as a tenancy in common: If, for instance, one of the objects of the gift is to take the interest of the other, not merely on the death of the latter, but on his death without issue, or on some other contingency. Ryves v. Ryves, 11 Eq. 539. Of course a gift over of the interest of one joint tenant in certain events to a third person can have no such effect. Edwards v. Jones, 33 B. 348; see Yarrow v. Knightly, 8 Ch. D. 736. tenants in common. 5. Where there is a power to appoint to persons, which Power to appoint to would authorise a tenancy in common, the Court, if com- persons as pelled to exercise the power, will make the legatees tenants in common. White's Trusts, Joh. 656; Phene's Trusts, 5 Eq. 346; In re Susanni's Trusts, 47 L. J. Ch. 65; see Armstrong v. Armstrong, 7 Eq. 519. trust in children. 6. It would seem, that where a clear executory trust Executory is created by will, for instance, by a direction to make favour of a a settlement upon a person and her children, the children parent and would take as tenants in common. Head v. Randall, 2 Y. & C. C. 231; Stanley v. Jackman, 23 B. 450. See Taggart v. Taggart, 1 Sch. & L. 84; Synge v. Hales, 2 Ba. & Bc. 499. At any rate, this is clearly the case if the ordinary powers and trusts are directed to be inserted in the settlement. Mayn v. Mayn, 5 Fq. 150. But a mere direction to secure a fund in favour of a class will not make them tenants in common. White v. Briggs, 2 Ph. 583; Owen v. Penny, 14 Jur. 359. stituted take as 7. If there is a gift to parents creating a tenancy in Issue subcommon, and children are substituted for parents dying, for parents the children of each parent take as joint tenants among joint themselves. Penny v. Clarke, 1 D. F. & J. 425; Mac- tenants gregor v. Macgregor, 1 D. F. & J. 63; Ilodgson's Trusts, them1 K. & J. 178; Coe v. Bigg, 1 N. R. 536; Lanphier v. Buck, 2 Dr. & Sm. 484. between selves, there are 15 words of But this does not apply if the words of division must unless be applied to the children as well. Lyon v. Coward, Sim. 287; Shepherdson v. Dale, 12 Jur. N. S. 156; Hodges v. Grant, 4 Eq. 140. severance applicable to the issue. 8. If there is a gift to parents in joint tenancy and a Severance direction, that the children of parents dying are to stand of joint Y tenancy as regards of issue in the place of the parents and take their shares, there the share is with regard to the stirps of children so taking a severance of the joint tenancy. Heasman v. Pearse, 7 Ch. 275. substi tuted for their parent. Tenants by entireties. Real estate. Personalty. Chattels real. D. Tenants by entireties. Where real or personal property is given to a husband and wife, though with a declaration that they are to be joint tenants, they hold by entireties, and on the death of one the other takes not jure accrescendi, but by virtue of the original limitation. Co. Lit. 187 a; Kelly v. Pollock, 6 Ir. C. L. 367. In the case of real estate held by entireties, neither husband or wife can alienate the property without the consent of the other, nor sever the tenancy. Co. Lit. 187 a, b; Doe v. Parratt, 5 T. R. 652. In the case of personalty the right of the wife is destroyed, if the husband reduces the property with possession, and the wife has no equity to a settlement. Atcheson v. Atcheson, 11 B. 485; Ward v. Ward, 14 Ch. D. 506. In re Bryan; Godfrey v. Bryan, 14 Ch. D. 516. It would seem, however, that the Court would preserve the wife's right by survivorship by preventing the husband from alienating the property during her life. Atcheson v. Atcheson, 11 B. 485. In the case of chattels real held by entireties, the husband can destroy his wife's right by survivorship by alienating the chattels real. In the report of the case of Grute v. Locroft, Cro. El. 287, usually cited as an authority on this question, the tenancy is stated to have been joint and not by entireties. It may have been a joint tenancy created before marriage. See 2 Preston, Abst. 57; Foster on Joint Ownership, 62. CHAPTER XXVIII. ESTATES IN FEE AND IN TAIL. 323 I. WORDS OF LIMITATION PROPER TO PASS THE FEE. 1. WORDS of limitation were never necessary to pass the fee in a devise of lands held in ancient demesne. Winch. 1. A devise to a man and his heirs gives him the fee, Devise to though he may be a bastard, and can have, therefore, only heirs. heirs of his body. Idle v. Cook, 1 P. Wms. 78. A. and his heirs. A devise to A. and his lawful heirs carries a fee. Devise to A. and his Simpson v. Ashworth, 6 B. 412; Matthews v. Gardiner, lawful 17 B. 254. So, too, a devise to a man, his executors and adminis- Devise to trators, gives him the fee. Rose d. Vere v. Hill, 3 Burr. executors, 1881. A devise of gavelkind land to a man and his eldest heir passes the fee. Co. Lit. 27 a. A., his and administrators tator may show that he meant by heirs 2. The testator may, however, show by explanatory The tesexpressions that he used the word heirs as equivalent to heirs of the body. Doe d. Jearrod v. Banister, 7 M. & W. 292; Jenkins v. Hughes, 8 H. L. 571; see, too, 4 Mad. 67; Biddulph v. Lees, E. B. & E. 289; 6 W. R. 592; 7 W. R. 309. A devise to the first and other sons of a tenant for life successively and their respective heirs according to priority of birth, followed by a gift over in default of such issue, will give the sons successive estates tail. Hennessey v. Bray, 33 B. 96; Lewis d. Ormond v. Waters, 6 East, 337. heirs of the body. Effect of gift over in default a collateral heir. 3. Heirs will be held equivalent to heirs of the body, if there is a limitation over in default of heirs to a person of heirs to who may be, or to several persons, some of whom may be collateral heir or heirs to the first taker, the limitation. over to a collateral heir showing that by heirs the testator meant heirs of the body. Webb v. Hearing, Cro. Jac. 415; Harris v. Davis, 1 Coll. 416. a prior devise in fee. The rule does not apply where the gift over is on failure of issue; therefore, a gift to several in fee, and if they die without issue to a collateral heir will, since the Wills Act, give a fee with an executory devise over, as it would before the Act have given an estate tail by force of the gift over being in default of issue, not because it was to a collateral heir. See Gwynne v. Berry, I. R. 9 C. L. 494; Fay v. Fay, 5 L. R. Ir. 274. Effect of a 4. If there is a devise to A., which gives A. the gift over in default of fee, either by express limitation or by construction, issue upon followed by a gift over if he dies without heirs of the body or issue, if these words import an indefinite failure of issue, A.'s estate is cut down to an estate tail. Tracy v. Glover, cit. 3 Leon. 130; Denn v. Slater, 5 T. R. 335; Dansey v. Griffiths, 4 Mau. & S. 61; Tenny v. Agar, 12 East, 253; Morgan v. Morgan, 10 Eq. 99. If, however, the failure of issue is not an indefinite failure of issue, there is no necessity for this construction, and the gift over will take effect as an executory devise. Right v. Day, 16 East, 67; Doe v. Frost, 3 B. & Ald. 546; Parker v. Birks, 1 K. & J. 156; Ex parte Davies, 2 Sim. N. S. 114; Blinston v. Warburton, 2 K. & J. 400; McEnally v. Wetherall, 15 Ir. C. L. 502; Coltsman v. Coltsman, L. R. 3 H. L. 121. It appears that in a deed a limitation over upon death without such issue or without leaving issue will not cut down a previous limitation in fee to an estate tail. Idle |