Fisher v Wigg
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1700 |
| Date | 01 January 1700 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 275
Chancery Division
Followed, Morgan v. Morgan, 1870, L. R. 10 Eq. 103.
[14] de term. S. hillarii, 1700. B. B. Case 4.-fisher versus wigg. [1700.] [Followed, Morgan v. Morgan, 1870, L. R..10 Eq. 103.] Salk. 391 ; Ld. Eaym. 622 ; Lilly's Entries, 205, S. C. ; Com. Eep. 88 ; 12 Mod. 296 ; 3 Salk. 206 ; 1 Eq. C. Abr. 291, note. Surrender of a copyhold to the use of A. B. and C. and their heirs equally to be divided betwixt them and their heirs respectively. This held by two judges a tenancy in common (1), by reason of the apparent intent of the surrenderor, against the opinion of Holt, G. J., who thought it a jointenancy. Ejectment: A copyholder in fee had issue four sons and two daughters, and surrendered his copyhold to the use of his wife for life, and after her death, to the use of his three younger sons and two daughters, equally to be divided, and their respective heirs and assigns for ever. The question was, whether these words made a tenancy in common; or whether the sons and daughters took as jointenants 1 And the matter having been argued solemnly at the bar, the judges now delivered their opinions seriatim. Gould, J. The sons and daughters take as tenants in common, and riot as jointenants. In construction of deeds this rule is to be observed, vis. to make all parts of them 276 FISHER V. WIGG 1 P. WMS. 15. take effect, according to the intent [15] of the parties, so as it be not contrary to the rules of law; and it will not be inconsistent with any rule of law, to construe this a tenancy in common; the words upon which we are to judge being, not words of limitation, nor creation of an estate, but of qualification and correction. There are no precise words requisite to make a tenancy in common, Lit. sect. 292; 1 Inst. 189a; Cro. Eliz. 695; 3 Co. 39; Ratdifi's case. The words (equally to be divided) go to the quality of the estate, and not to, the limitation of it; a joint estate in the premisses may be altered by the habendum. Hob. 172; 1 Inst. 190b; Cro.. Car. 75. A grant to a man and his heirs, but if he die sans issue, &c., this turns the fee in the premisses to an estate-tail, and corrects the generality of the preceding words. 19 H. 6, 74. The intention of the surrenderor was to make provision for his younger children and their heirs, which will not take effect, if it be a joint estate. Surrenders of copyhold land to uses shall have the same favourable construction as wills, and ai'e not to be tied up to the strict rules of the common law, but expounded according to the intention of the party. 2 Bulst. 274 ; 3 Cro. 323 ; Poph. 125, 12G ; Plowd. 151 ; 1 Saund. 151 ; 2 Vent. 365. (In Biyden v. Vallier, 2 Vez. 256, Lord Hardwicke says, that no decree is to be found in the Eegister's book to warrant this report.) And though there has been a running notion passing obiter in some books, that there is a diversity betwixt wills and conveyances in common law, yet that matter has not been scanned or settled : for, as to the intention of the party, the words in a deed are capable of the same construction as in a will. As to the case in 2 Eoll. Abr. 90, 5, Furse versus Weeks, the diversity there is upon a conveyance at common law, but here the case is upon a limitation of an use. In the case of Blisset versus Cranwell (Salk. 226), Paschse 6 W. &. M. C. B. a devise was to two and their heirs, and the longer liver [16] of...
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