M'Pherson v. M'Pherson

1 Add. 327

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1797
• Status: Published

Opinion

Shippen and Coxe, J.

held it to be a joint tenancy.

1. Here is a clear joint estate vested in Alexander and Robert; and it cannot be devested without a clear intention expressed.

2. No such clear intention appears, nor any clear intention, that this should be a tenancy in common.—The words, used in creating the obligation to surrender, are the same as those used in creating the estate. They are therefore to be construed in the same way in both parts of the will; and the meaning is, that whoever, under the will holds the estate at the time of the demand, shall then surrender it.

3. As to equality, this construction equally secures it: for either had an equal chance to survive the other.

Chew, President, and Smith, Addison, Henry, and Riddel, J. held this to be a tenancy in common.

1. It appears, from the whole of this will, that equality between the two sons Alexander and Robert was intended. And supposing, in respect of age and health, their chances equal, the equality ought to be construed a real, and not a casual equality.

2. Courts in England have gradually inclined to construe in favour of tenancy in common; and, from this progress of judicial opinions there, and the state of property here, we ought to lay hold of every possible construction, to make it a tenancy in common.

3. The natural, if not the necessary construction of the direction, that his sons Alexander and Robert, or their heirs, should give up the plantation to John is, that his sons, if both alive should give it up; or if either of them were dead, that the survivor, and the heirs of the other should give it up: or, if both were dead, that the heirs of both should give it up: and this construction can consist only with a tenancy in common.

4. Though the devise be in the same words to them and their heirs, yet these have a technical meaning in a grant, and there is no reason to incline us, in favour of a joint tenancy, to stretch them to the same sense in a clause out of the ordinary form. In the grant, the expression is to them and their heirs. In the condition, it is to them or their heirs.

5. Though there be no precedent for construing a tenancy in common from words like these, this construction is in the spirit of former decisions; and there was a time when there was no precedent for construing a tenancy in common from the words equally to be divided, &c.

6. This is a contingent trust: it is yet possible that John may return, and demand the estate. Now it is a trust coupled with a present interest.