case fisher versus wigg follow Morgan v Morgan l r Eq salk ld raym lily entry  S c Com Rep Mod salk Eq c Abr note surrender of a copyhold to the use of a b  and c and their heir equal to be divide betwixt they and their heir respective  this hold by two judge a tenancy in common by reason of the apparent intent of  the surrender against the opinion of holt oh I who think it a jointtenancy  ejectment a copyholder in fee have issue four son and two daughter and  surrender his copyhold to the use of his wife for life and after her death to  the use of his three young son and two daughter equal to be divide and their  respective heir and assign for ever the question be whether these word make a  tenancy in common or whether the son and daughter take as jointtenants and the  matter have be argue solemnly at the bar the judge now deliver their opinion  seriatim gold I the son and daughter take as tenant in common and not as  jointtenants in construction of deed this rule be to be observe videlicet to  make all part of they peer William er p take effect accord to the intent peer  William of the party so as it be not contrary to the rule of law and it will  not be inconsistent with any rule of law to construe this a tenancy in common  the word upon which we be to judge be not word of limitation nor creation of a  estate but of qualification and correction there be no precise word requisite  to make a tenancy in common light sect Inst a cro Elizabeth   Ratcliff case  the word equal to be divide go to the quality of the estate and not to the  limitation of it a joint estate in the premise may be alter by the habendum  hob Inst b cro car a grant to a man and his heir but if he die sans issue c  this turn the fee in the premise to a estatetail and correct the generality of  the precede word h the intention of the surrender be to make provision for his  young child and their heir which will not take effect if it be a joint estate  surrender of copyhold land to use shall have the same favourable construction  as will and be not to be tie up to the strict rule of the commonlaw but  expound accord to the intention of the party Bulst cro Poph Plowd sand vent in  Rigden v vallier ves Lord Harwicke say that no decree be to be find in the  register book to warrant this report and though there have be a run notion  pass obiter in some book that there be a diversity betwixt will and conveyance  in commonlaw yet that matter have not be scan or settle for as to the  intention of the party the word in a deed be capable of the same construction  as in a will as to the case in roll Abr furse versus week the diversity there  be upon a conveyance at commonlaw but here the case be upon a limitation of a  use in the case of blisset versus Cranwell salk pasch W m c b a devise be to  two and their heir and the long liver peer William of they equal to be divide  after the death of the testator wife and resolve this be a tenancy in common  the word equal divide or equal to be divide make a tenancy in common in a will  beyond all dispute and we be here in the case of a use which bear the like  construction with a will pale yellow Dev in roll Abr brook versus brook the  wife be name after the habendum in the surrender of a copyhold and yet take a  estate accord to the limitation upon that rule of construction Paschae car b r  smith versus Johnson a feoff be make to two and their heir equal to be divide  and there Scrogs and dolben be of opinion that the feoff be tenant in common  and not jointtenants but Jones differ Turton I be of the same opinion  videlicet that it be a tenancy in common and argue much to the same effect  only he add that a prcipe lie of two acre in tres part dividend which be a  tenancy in common   Edward that if this limitation have be before the statute  of use the chancery will have compel a conveyance to the son and daughter in  common and the law shall have the same operation since that if in this case  the father have surrender the land to the use of his last will and by his will  have devise it in these word it must have be agree to create a estate in  common and there be no reason why a different construction shall be put upon  the word when express in the surrender itself holt c I contra copyhold land do  not differ   b also post idle v cook in construction of law from freehold land  and surrender of copyhold must be govern by the same rule as conveyance at  commonlaw the opinion in Poph which my brother peer William rely on videlicet  that a surrender be to be construe as a will be of no authority for it be  among the additional case and not report by Popham and there be no mention  make of it in the report of the same case in cro James if a copyholder  surrender to the lord without declare a use the copyhold extinguish as on a  surrender by tenant for life to he in reversion the resolution in roll Abr  brook versus brook be find upon the custom of the manor which be that a person  name after the habendum shall take the estate limit to he so where a surrender  be to several by custom they shall take in succession as they be name we be  not upon the construction of a use for a surrender to a use be a limitation of  the estate a declaration and direction to the lord how to grant the land and  the surrender himself continue seize till the admittance of the surrendee and  the person to who use the surrender be make be not beneficiary and use in the  mean time but when admit he be in by grant from the lord by this surrender the  son and daughter be jointtenants and not tenant in common for the word equal  to be divide signify no more than the law will peer William er p have imply  without they and therefore they can have no operation Inst a one jointtenant  can only forfeit or dispose of his own part and if both join in a feoff and  one die it must be plead as the feoff of both and not of the survivor only the  true difference between jointtenants and tenantsin common be put in Litt sect  Inst b jointtenants hold by one joint title but tenant in common by several  title in our case the title be joint and all claim under the same conveyance  peer William the word equal do not alter the manner of take the profit there  be no difference in that respect between jointtenants and tenant in common in  regard if one jointtenant or one tenant in common take the whole profit his  companion have no remedy against he so jointtenants have as separate a  interest in the land as tenant in common for tenant in common be no more  compellable at commonlaw to make partition than jointtenants and therefore in  sue a writ of partition the party never show whether he be tenant in common or  jointtenant but only that he be seize pro undivided   Ent in like manner one  jointtenant may dispose of his own part as well as a tenant in common and each  have a equal proportion without those word equal to be divide neither do the  word respective see Comber v hill stram davenport v oldis atk make any  alteration of the estate for as much as there be no diversity betwixt a grant  to two and their heir and a grant to two and their respective heir or to two  and their heir respective since the limitation must be to both their heir or  they can both take a feesimple and if the fee enures to both their heir it  must be to both their heir respective which Turton and gold agree and in  construction of deed superfluous word be to be reject as have no operation   a  but there have be a objection draw from Litt sect if land be give to two  habend the one moiety to one c they be tenant in common resp if a feoff be  make to two habend one moiety to one and the other moiety to the other this  operate as peer William several conveyance and not as one for there must be  two livery because there be several freehold and livery to one secundum form  chart will not enure to the other and that case be not like to we in regard  there be a actual division and distribution of the land whereas the word equal  to be divide do not assign several part if a feoff be make of twenty acre to  two habend ten acre to one and ten acre to the other this habend will be void  because repugnant to and inconsistent with the premise by which the whole  twenty acre be express grant to both otherwise where a manor be grant to two  in the premise habend one moiety to the one and the other moiety to the other  these word I e the word of the surrender can make a tenancy in common it be  the nature of that estate for the tenant to be seize pro undivided but  pursuant to this they must hold pro division which be so far from imply a  tenancy in common that it direct exclude it but it be object that in Inst b in  tres part dividend imply a tenancy in common resp that be not mention in the  case of Edward b neither be coke positive therein it be only his conjecture  object Jointenants have but one freehold but tenant in common have several  freehold resp I agree it but their part in the land be not divide and several  object these word in a will make a tenancy in common peer William resp there  be a difference betwixt will and conveyance at law and word in the one shall  have a different construction from what they will have in the other see wright  v Kemp t r do v Morgan ib a grant to a man and his assign for ever in a deed  passes only a estate for life but the same word in a will give a feesimple h  so a estate may pass in a will by implication but not in a deed the reason of  which different construction be because the law consider the circumstance of  the testator who be weak council and will not hold he strict to rule and this  reason take place in the construction of will make by custom before the  statute of h as in h the case of a devise to a infant in ventre sa mere which  same reason and rule of construction hold in will make since the statute but  precedent on will will not influence this case the reason of every case be  peer William er p the strength of the case the reason of the opinion in  Ratcliff case   b be not on the force of the word equal to be divide but from  the intention a estate in a will may be restrain and qualify by the intention  of the testator without express word h hob cro car Jo where it be agree that  the like limitation have it be in a will will have create a estate tail though  it do not in a conveyance at commonlaw or in a surrender roll Abr a devise be  to two equal to be divide habend to they and the survivor and the heir of the  survivor and resolve they be jointtenants and not tenant in common because of  the subsequent word which peer William be not repugnant to the first for the  first word do not make a tenancy in common by express limitation but by  implication or construction see post Phillips v Phillips which be the true  reason of the case and a full authority for I if the limitation have be  express the subsequent word will have be void and repugnant style dyer see  post Bamfield v Popham it be after some time and debate that these word obtain  to make a tenancy in common in a will and the doubt proceed from hence sure  because they do not make a estate or tenancy in common at commonlaw for if  they have there can then have be no doubt upon a will it have be hitherto the  constant opinion both at the bar and on the bench that these word will not  make a tenancy in common in a deed Jointenancy be favour in law because as the  law do not love fraction of estate so neither do it encourage division of  tenor or multiplication of service now as long as the jointtenancy continue  there be a joint tenure but when the tenancy become in common then the tenor  and service be several   and by such construction as my brother make in the  present case instead of one copyhold estate and one fine and single service  there will be five several copyhold and as many fine and service and one  tenant in common can have contribution for such against his companion as a  jointtenants may this be the true and only reason why joint estate be favour  in law at least I can invent no other but the case of smith and Johnson be  object resp when that judgement be give nobody be satisfy peer William with it  and afterward the rule for judgement be discharge and a beyond council award  and then the party die so no judgement be give there be no authority in the  book against my opinion on the contrary the concurrent authority of all time  in Westminster hall be for I so that I think judgement ought to be give for  the defendant but my brother make the majority and therefore the plaintiff  must have judgement in case of will the word equal to be divide certain make a  tenancy in common prince v heylin atk Owen v Owen I atk heath v heath atk haw  v haw atk stone v Heurtly ves so in deed which receive their operation from  the statute of use Rigden v vallier ves pound atk Goodtitle v Stokes I will by  in commonlaw conveyance stone v Heurtley I ves Rigden v vallier ves where Lord  Hardwicke say that although deed to use must be construe like commonlaw  conveyance as to word of limitation yet he see no harm in construe they  otherwise as to word of regulation or modification of the estate as the word  equal to be divide be vide Stratton v best bro c c the present case of fisher  v Wigg be determine on the principle that a surrender of a copyhold be not to  be construe with the same strictness as a commonlaw conveyance as say by Lord  Hardwicke ves which contradict the ground of determination in idle v cook post  where it be say that the construction of a surrender must be the same as if  the estate have be limit by feoff and must be govern alike by the rule of the  commonlaw unless the two case be reconcile upon Lord hardwicke distinction  between word of limitation and word of regulation c however in case of  surrender of copyhold this case seem a acknowledge authority Rigden v vallier  ub sup Goodtitle v Stokes will et den v gaskin Cowp but see the observation on  this case Watk on copyh and see pale yellow on use by Sugden n I Fonb Eq  Cooper v Jones b a davenport v Hanbury Ves Morley v bird ib do v elvey east  roe v Bacon m S et vide read v read Ves Campbell v Campbell bro c c Casterton  v peer William er p sutherland Ves where the word unto and among be hold to  have the same effect and a similar decision as to the word between they  Lashbrook v cook mere see also do v ironmonger east peer William de boundary S  the number three b r