atkins case Elizabeth RIGDEN widow one of the daughter of george EVERINDEN  decease by and his wife also decease William thomas and george RIGDEN the only  child of William RIGDEN and sarah his wife both decease who be another of the  daughter of george EVERINDEN by and his wife plaintiff margaret vallier widow  another daughter of the say george EVERINDEN by and his wife defendant march  Lord chancellor give judgement see steed v steed Q b d SC Ves g e seize of a  gavelkind estate by deedpoll in consideration of natural love to his wife and  child do grant to his two daughter Margaret and Hannah the rend of his land in  l equal to be divide betwixt they pay to the mother during her life and after  her decease to his two daughter to hold to they and their heir equal to be  divide betwixt they Lord Hardwicke be of opinion that the word in the  limitation to the daughter create a tenancy in common whether the instrument  be consider as a deed or a will Goodtitle v Stokes will vide Mr Cox note to  fisher v Wigg p W George Everinden be seize of a estate in ken of the tenure  of gavelkind by deedpoll date the that of August in consideration of natural  love to his wife and child do give grant and confirm to his two daughter  Margaret the defendant and Hannah the rend and profit of his two message and  land in line in his own occupation during the life of his wife equal to ten  divide betwixt they pay five pound yearly out of the premise last mention to  and his wife for her life by halfyearly payment and after his wife decease to  his two daughter Margaret and Hannah to hold to they and their heir equal to  be divide betwixt they at the end of the deed be a clause by which he give the  residue of his personal estate after debt and funeral expense to his daughter  to be equal divide between they not in the register book though probable in  the deedpoll on the that of April George Everinden die leave and his widow and  five child videlicet Margery decease the plaintiff Elizabeth and Sarah the  mother of the other plaintiff the defendant and Hannah the late wife of John  Dixon both decease which Margaret and Hannah on their father death enter on  the premise grant to they and pay the five pound a year to their mother till  her death which happen the that of September atkins Hannah die the that of  April leave one son Richard Dixon a atkins er p infant and the defendant  Margaret who marry afterward William vallier and continue in possession from  the death of her sister Hannah and account for a moiety of the rend and profit  to John Dixon to the time of the death of his son Richard which happen on the  five of February on his death the plaintiff and the defendant be his heir at  law and also heir of Hannah by the custom of gavelkind Margery the other  daughter be dead without issue and John Dixon the father of Richard have after  the decease of Hannah marry another wife and thereby accord to the custom of  gavelkind forfeit his estate as tenant by the courtesy the plaintiff and  defendant become entitle to hannah moiety of the premise and the rend and  profit thereof but the defendant have ever since hannah death be and now be in  possession of the whole be twenty pound per and and not only receive the rend  but cut down and sell the timber and have the titledeed in her possession the  defendant insist that the premise be give by her father under the deedpoll to  hold to her and her sister as jointtenants and not as tenant in common and  that she by survive her sister be become entitle to the whole and refuse to  account for the rend or timber or to produce the deedpoll or titledeed but the  plaintiff insist that the deed poll be a grant to they and their heir for ever  equal to be divide between they and operate as a covenant to stand seize they  be tenant in common and not jointtenants and hannah moiety do not survive to  the defendant but descend to her son of which she herself be so sensible that  on hannah death she account for a moiety of the rend to John Dixon for the use  of his son till his death but now absolute refuse to account the bill  therefore be bring for a account of the rend of the premise and money raise by  sale of timber and that the plaintiff may be pay their proportion and that the  title deed may be bring into court or otherwise secure for the person interest  Lord chancellor the question in this case be whether the limitation in the  deedpoll of the that of August execute by George be a jointtenancy or a  tenancy in common the deed begin as a deedpoll but be in fact a disposition of  his real and personal estate and to take effect after his death atkins this  may be good as a covenant to stand seize but if it be to be consider as a  conveyance it will not be good because there be no transmutation of possession  the present point be a very litigate one in the book equal to be divide be now  establish to be a tenancy in common in a will or if it be equal only without  the subsequent word annex to it will be so construe so prince v heylin atk  Owen v Owen ibidem haw v haw atk stove v Heurtly Ves but then it be insist to  be otherwise in the case of a deed and though I do not find any solemn  determination of this sort yet the distinction to be sure be often make in the  book in the case of fisher versus Wigg in p W and I Lord raym there be a  surrender of a copyhold estate to the use of a b and c and their heir equal to  be divide betwixt they and their heir respective this be hold by Mr justice  gold and Turton a tenancy in common by reason of the apparent intent of the  surrender against the opinion of Lord chief justice holt who think it a  jointtenancy I do not find that this judgement have be reverse so that it be  undoubted a authority the case in vent in chancery be also to the same purpose  where a covenant to stand seize to the use of a for life and afterward totwo  equal to be divide and their heir and assign for ever be adjudge by the Lord  keeper north to be a tenancy in common I have have the register search for  this case and can find it but notwithstanding it be not enter it may have be  so determine and be so cite by Mr justice Turton in fisher versus Wigg  Hammerton versus Clayton car rot be adjudge a tenancy in common upon the same  word but this case be not much to be depend upon because at the end of Lord  Raymond report of fisher versus Wigg it be saidto be cite by sir Edward  Northey only and the case be not to be find in the case of smith versus  Johnson pasch car SC p W cite atkins er p in the court of king bench there be  a feoff to two and their heir equal to be divide between they to the use of  they and their heir upon the break of the case Scroggs chief justice and  dolben justice be of opinion that it be a tenancy in common but Jones justice  be of another opinion upon the difference between a deed and a will atkins but  notwithstanding there be a rule in that case for judgement nisi yet nobody be  satisfy with the opinion the rule be upon motion set aside and it be make a  beyond concilium and end afterward by the death of the party in the present  case I think it a tenancy in common whether the instrument be consider as a  deed or a will No person have more reverence for the argument of Lord chief  justice holt than I have but in fisher and Wigg the argument of the other two  judge be more agreeable to the reason of the thing and his more subtle and  fine spin that be a question upon a copyhold estate and there Mr justice gold  and Mr justice Turton hold it ought for that reason to be construe favourable  and contrary to the rule concern conveyance at commonlaw and that they be to  be consider as will because the surrender be oftentimes make by the surrendee  in limit when he be weak council but Lord chief justice holt be of opinion as  to raise and pass estate copyhold ought to be govern by the rule of the  commonlaw and that a surrender to use be only a direction and the surrendee be  in by the grant of the lord and not within the statute of use and therefore  hold the case be to be consider as a grant at commonlaw here I must consider  it as a covenant to stand seize for there be no livery and be to take effect  after his decease which can not be good as a conveyance of a freehold to take  effect in going to be it will be very inconvenient to construe a covenant to  stand seize different from conveyance at commonlaw but here there be word of  regulation or modification and I do not see any harm in give they a reasonable  construction to answer the intention there be other reason which weigh with I  and great strengthen my opinion here be a father mature provision for all his  child suppose one of they have die and leave child if a jointtenancy it must  have go from they and survive to the other son and daughter of the grantor  which can never be his intention this court have take a latitude upon the foot  of intention if two person advance money upon a mortgage though the conveyance  be make to they joint it shall be a tenancy in common so petty v steward  Charles Rep partridge v paulet atk atkins in the case of advance money joint  by two person for a purchase it have be say indeed that the chance be include  and the interest shall survive vide hay v kingdom vern usher v Aylesworth  ibidem lake v Craddock p W but then it must be understand where two person  purchase advance in moieties for if there be a disproportion in the sum it  will be otherwise the grantor seem to have put his own construction upon this  deed by dispose of his personal estate in the same word and which be admit to  be a tenancy in common and therefore it will be extraordinary to say be mean  different in one from the other this be as near a testamentary case as can be  and I do not see but it may have be prove as a will so Hixon v Wytham   the  case of kibbet versus lea be on a deed and yet prove and since that  determination there have be another of the name of Jackson and trim in the  court of king bench about a year ago No objection to this construction arise  from the word grant for a grant must be construe equal the same with the word  devise or bequeathe if in a will and this be quasi a testamentary act and  therefore must be consider as a will notwithstanding this be my opinion yet if  the defendant choose to have the question determine by commonlaw judge I will  give he a opportunity of do it but as the estate in question be of so small a  value I will not send it to be determine by a whole court because the present  method though a right one of set down such case in their special paper of  cause introduce a number of argument and considerable expense but I will  direct it to be hear and argue as be often do before two judge only at their  chamber and mention Lord chief baron Parker and Mr justice burnet atkins er p  Mr attorney general who be counsel for the defendant declare himself well  satisfy with Lord chancellor opinion he make a decree accord to the prayer of  the bill but at the same time say he will direct the account of the rend and  profit to be carry back only one year before the fill of the bill as it be not  file till nineteen year after the death of Hannah videlicet the twentyeighth  of November Reg lib b fol