Thayer, J.
This case, asking' the judgment of the Superior Court upon the following questions arising upon the will of Martha C. Brantingham, deceased, has been reserved by that court for our advice:
“
(1) Do the provisions of the first paragraph of said will create a joint estate in the two sons of the decedent, with right of survivorship, and if so, is the disposition valid? (2) Do the children of said two sons take any interest by virtue of said first paragraph, except in the case of the parent predeceasing the testatrix? (3) Do the provisions of the first and second paragraphs, taken together, create a joint estate in the two sons of the decedent? (4) Is the condition in the second paragraph of said will, requiring the share of the estate received by the son who shall first die, to be paid over to the surviving son, repugnant to the absolute gift' (if it so be) contained in the first paragraph, and therefore void? (5) Does each of the sons of the testatrix take the portion of the estate bequeathed to him with
full charge and management of the same until his death, and in case of its delivery to him should a bond be required? (6) Is the appointment of a trustee to hold said estate required, in order to protect the rights of the survivor? (7) Are the rights of said two sons of the decedent so presently vested by reason of right of survivorship, that the executor should make such disposition of the estate as is demanded by them? (8) If said second clause is held to create a right of survivorship to any unborn children of either of the said sons, does this operate to create a perpetuity and thereby vitiate said clause or create intestacy? (9) If the estate shall be held to be intestate, should the executor upon demand of the defendants, who are the only heirs-at-law and next of kin of the decedent, pay over and deliver the estate to them, in such manner as they may mutually agree upon and direct?”
The testatrix is presumed to have known that if she should die intestate, leaving as her sole hens at law her two sons, her estate, consisting as it did of real estate situated in this State, where her domicil was, and of American securities, would be shared equally between them, and that if, before her death, either of them should die leaving children, such children would take the share of the deceased parent. The fact that she attempted a testamentary disposition of her estate indicates that she desired, and attempted to make, a different disposition of her property from that which the law would make in the absence of a testament. The defendants, not denying this, claim that the will gives the entire estate to them jointly, with the incident of survivorship, and that the references in the will, to the legitimate children of her sons and her son’s representatives, are alternative provisions intended to have effect only in case of a son predeceasing the testatrix leaving issue.
With respect to children which may hereafter be born to either of the sons, they can take nothing under the provisions of the will. The testatrix did not say, and there is nothing in the will to indicate that she intended, that her grandchildren, should there be such, should take any portion of her estate under the will, if both of her sons should survive her. By the first clause she gives and bequeaths all of her estate to her two sons “jointly and with right of accretion between them ... to be divided between them or their legitimate children in equal parts
per stirpes.”
The manifest purpose here is to substitute the children in place of the father, should either son fail to survive the testatrix. It cannot have been intended, if the sons both lived to take their legacies, that upon the death of either thereafter the estate should then be divided between his children and the surviving son; for it is provided in the second clause that upon the death of either son the survivor shall have the entire, estate. It is also provided in that clause that upon the death of the “representatives” of a deceased son the .surviving son shall take the entire estate, and if such representatives outlive the surviving son they are to take the entire estate. The representatives here referred to must be the children of a son who predeceased the testatrix; his share being taken by them, because if both sons survived her, and one then died, the entire estate, under the will, at once becomes the property of the surviving son.
The defendants claim that they take the estate jointly under a technical joint tenancy with all of its incidents, including survivorship. If there is survivor-ship, it is by virtue of the provisions of the will, and not by virtue of the joint tenancy. There may be joint tenancies in this State, but survivorship as an incident thereto has never been recognized here. There is here
practically no difference between a joint tenancy and a tenancy in common. Each tenant is seized of an undivided share of the whole, proportioned to the number of tenants, as was the case at common law in tenancies in common. But at common law, in the case of a joint tenancy, each tenant is seized of the whole as well as of every
part
— per
my et per tout
— and it is to this seizin by each of the entirety that the incident of survivorship is due. Upon the death of one, the other or others remain seized of the whole. In this State, therefore, there can be no joint tenancy with the right of survivorship, unless such right is created by the will or other conveyance creating the tenancy. Whether it can be so created, we need not in this case inquire. It is undoubted that a joint tenancy, or tenancy for life, can be created with remainder over to the surviving tenant. Where survivorship as an incident to joint tenancy is recognized, and a devise to two persons jointly for years, for life, or in fee is made, without other words, the incident of survivorship attaches; it is unnecessary to say that the devise is to the two and the survivor of them. Indeed, if a fee is thus given to two and to the survivor of them, it is held that a joint tenancy of freehold -for their joint lives is created, with a contingent remainder in fee to the survivor. 2 Blackstone’s Commentaries (Sharswood Ed.) 180, note 2. This gives effect to the words “to the survivor of them,” which otherwise would be surplusage.
The question is, in the present case, whether the will creates a technical joint tenancy in the two sons, as they claim, or something different. The estate is given to them jointly, with right of accretion, in the first clause of the will; but it is to be divided between them in equal parts. In the absence of the words “conjointement” (jointly) and “avec accroissement” (with right of accretion), this bequest would be held to create
a tenancy in common in the sons.
Griswold
v.
Johnson,
5 Conn. 363, 365. The language employed by the testatrix, it seems, was suggested to her by a French notary, who was, perhaps, more familiar with the authentication of acts testamentary under the French Civil Code, than with those intended to operate under English law, and this may account for the peculiar phraseology of this testament.
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Thayer, J.
This case, asking' the judgment of the Superior Court upon the following questions arising upon the will of Martha C. Brantingham, deceased, has been reserved by that court for our advice:
“
(1) Do the provisions of the first paragraph of said will create a joint estate in the two sons of the decedent, with right of survivorship, and if so, is the disposition valid? (2) Do the children of said two sons take any interest by virtue of said first paragraph, except in the case of the parent predeceasing the testatrix? (3) Do the provisions of the first and second paragraphs, taken together, create a joint estate in the two sons of the decedent? (4) Is the condition in the second paragraph of said will, requiring the share of the estate received by the son who shall first die, to be paid over to the surviving son, repugnant to the absolute gift' (if it so be) contained in the first paragraph, and therefore void? (5) Does each of the sons of the testatrix take the portion of the estate bequeathed to him with
full charge and management of the same until his death, and in case of its delivery to him should a bond be required? (6) Is the appointment of a trustee to hold said estate required, in order to protect the rights of the survivor? (7) Are the rights of said two sons of the decedent so presently vested by reason of right of survivorship, that the executor should make such disposition of the estate as is demanded by them? (8) If said second clause is held to create a right of survivorship to any unborn children of either of the said sons, does this operate to create a perpetuity and thereby vitiate said clause or create intestacy? (9) If the estate shall be held to be intestate, should the executor upon demand of the defendants, who are the only heirs-at-law and next of kin of the decedent, pay over and deliver the estate to them, in such manner as they may mutually agree upon and direct?”
The testatrix is presumed to have known that if she should die intestate, leaving as her sole hens at law her two sons, her estate, consisting as it did of real estate situated in this State, where her domicil was, and of American securities, would be shared equally between them, and that if, before her death, either of them should die leaving children, such children would take the share of the deceased parent. The fact that she attempted a testamentary disposition of her estate indicates that she desired, and attempted to make, a different disposition of her property from that which the law would make in the absence of a testament. The defendants, not denying this, claim that the will gives the entire estate to them jointly, with the incident of survivorship, and that the references in the will, to the legitimate children of her sons and her son’s representatives, are alternative provisions intended to have effect only in case of a son predeceasing the testatrix leaving issue.
With respect to children which may hereafter be born to either of the sons, they can take nothing under the provisions of the will. The testatrix did not say, and there is nothing in the will to indicate that she intended, that her grandchildren, should there be such, should take any portion of her estate under the will, if both of her sons should survive her. By the first clause she gives and bequeaths all of her estate to her two sons “jointly and with right of accretion between them ... to be divided between them or their legitimate children in equal parts
per stirpes.”
The manifest purpose here is to substitute the children in place of the father, should either son fail to survive the testatrix. It cannot have been intended, if the sons both lived to take their legacies, that upon the death of either thereafter the estate should then be divided between his children and the surviving son; for it is provided in the second clause that upon the death of either son the survivor shall have the entire, estate. It is also provided in that clause that upon the death of the “representatives” of a deceased son the .surviving son shall take the entire estate, and if such representatives outlive the surviving son they are to take the entire estate. The representatives here referred to must be the children of a son who predeceased the testatrix; his share being taken by them, because if both sons survived her, and one then died, the entire estate, under the will, at once becomes the property of the surviving son.
The defendants claim that they take the estate jointly under a technical joint tenancy with all of its incidents, including survivorship. If there is survivor-ship, it is by virtue of the provisions of the will, and not by virtue of the joint tenancy. There may be joint tenancies in this State, but survivorship as an incident thereto has never been recognized here. There is here
practically no difference between a joint tenancy and a tenancy in common. Each tenant is seized of an undivided share of the whole, proportioned to the number of tenants, as was the case at common law in tenancies in common. But at common law, in the case of a joint tenancy, each tenant is seized of the whole as well as of every
part
— per
my et per tout
— and it is to this seizin by each of the entirety that the incident of survivorship is due. Upon the death of one, the other or others remain seized of the whole. In this State, therefore, there can be no joint tenancy with the right of survivorship, unless such right is created by the will or other conveyance creating the tenancy. Whether it can be so created, we need not in this case inquire. It is undoubted that a joint tenancy, or tenancy for life, can be created with remainder over to the surviving tenant. Where survivorship as an incident to joint tenancy is recognized, and a devise to two persons jointly for years, for life, or in fee is made, without other words, the incident of survivorship attaches; it is unnecessary to say that the devise is to the two and the survivor of them. Indeed, if a fee is thus given to two and to the survivor of them, it is held that a joint tenancy of freehold -for their joint lives is created, with a contingent remainder in fee to the survivor. 2 Blackstone’s Commentaries (Sharswood Ed.) 180, note 2. This gives effect to the words “to the survivor of them,” which otherwise would be surplusage.
The question is, in the present case, whether the will creates a technical joint tenancy in the two sons, as they claim, or something different. The estate is given to them jointly, with right of accretion, in the first clause of the will; but it is to be divided between them in equal parts. In the absence of the words “conjointement” (jointly) and “avec accroissement” (with right of accretion), this bequest would be held to create
a tenancy in common in the sons.
Griswold
v.
Johnson,
5 Conn. 363, 365. The language employed by the testatrix, it seems, was suggested to her by a French notary, who was, perhaps, more familiar with the authentication of acts testamentary under the French Civil Code, than with those intended to operate under English law, and this may account for the peculiar phraseology of this testament. It must be interpreted, however, according to our law, as the testatrix was domiciled in this State, where all of her real estate was located; and as her personal property consisted of American securities, there is nothing to indicate that she intended that the will should operate according to foreign laws. But we should look to the technical meaning and use in France of the language adopted in this testament, in order to learn how best to translate it into our own. Williamson, in his French-English Dictionary of Legal Words and Phrases, defines the “droit d’accroissement” in French law as “the right which an heir or a legatee has of combining with his own interest in a succession the interest of a co-heir or co-legatee who either refuses to or cannot accept his interest.” The same definition is given in Legrand’s “ Dictionnaire Usuel de Droit.” It would seem, therefore, that the words in this will which have been translated “with right of accretion” mean something different, or have not the full meaning of the words
jus accrescendi,
or of the words “right of survivorship,” of our law relating to joint tenancies. . It is a right to take what a co-heir or a co-legatee does not accept or take, but not a right to enjoy alone in severalty, by survivorship, what both had already taken and enjoyed together
per my et per tout.
If, therefore, a joint tenancy is created by the first clause of the will, no right of survivorship is thereby attached which would be operative under the law of this State in a case like
the present, where the co-legatees both survive the testatrix, and neither has renounced his legacy, and is capable of taking it.
What the effect of the words “right of accretion,” in connection with the word “jointly,” in the first clause, would be if we recognized in this State technical joint tenancies with the incident of survivorship, we need not inquire. Where such tenancies are recognized, if a testator makes a bequest to two in language adequate to create a joint tenancy, but adds that the subject of the bequest is to be divided equally between the legatees, it is held that these words create a tenancy in common. 2 Blackstone’s Commentaries p. 181, note. In this first clause of her will the testatrix directs that the estate shall be divided equally between her two sons. The language is sufficient to convey to them her entire estate in fee as tenants in common. The word “heirs” is not used, but it is not necessary to carry the fee, where the estate is created by will. But the second clause of the will shows that it was not the intention of the testatrix to give to each son in fee an undivided one half of her property. On the contrary, it shows that the estate in common given to the sons was only for the term of their joint lives — a freehold estate, not an absolute gift of the fee; for it is provided and stated that the legacy is upon the express condition that, upon the death of one, the goods and rights which he has received shall be put back (soient remis), or, as it is translated, delivered up and become the property of the survivor. The whole will thus shows that it was not intended that there should be unity of possession. The property was to be divided and held in severalty during their joint lives. This was not the creation of a joint tenancy with right of survivorship, but the creation of a freehold estate in one half of the property of the testatrix in each of the sons during their joint lives,
with a contingent remainder in fee of the entire estate in the surviving son. This being so, the sons are each entitled, during the joint lives of the two, to the possession and use of one half of the estate in the plaintiff’s hands for distribution, and, upon the death of either, the other will be entitled to the whole in fee.
It is for the Corut of Probate, in which the estate is pending for settlement, to determine the questions relating to the giving of bonds and the appointment of trustees upon the delivery of the property to the legatees, and it is not for the Superior Court, or this court, to tender advice upon these matters in a proceeding like this, which is to obtain a construction of the will.
The Superior Court is advised to answer the first, second,' third, and fourth questions in the negative; to answer the fifth question, except as to the requirement of a bond, in the affirmative; to leave the sixth, seventh, eighth, and ninth questions unanswered, as irrelevant under the construction of the will herein adopted.
No costs in favor of either party will be taxed in this court.
In this opinion the other judges concurred.