Gilpin v. Hollingsworth

Tuck, J., delivered the opinion of this court. The will of Henry Hollingsworth contained the following clause: “All the rest and residue of my estate, real, personal or mixed, whatsoever or wheresoever, I give, devise and bequeath, to be divided amongst all my children, in equal shares and portions, to them, their .heirs' and assigns, forever.” He left children, of the whole a-»d-of the half blood. If his children took by descent, and not by purchase, the plaintiffs are entitled to recover, being of the half blood; if, on the contrary, the property passed by the will, the defendants, being of the whole blood, must succeed. “Where the same quantity and quality of estate is devised, that the devisee would have- acquired by descent, the title passes by the worthier title — by descent, and not by purchase.” 7 Gill and Johns., 70. 'É. Hilliard on Real Prop., 528, 529.

The only inquiry, then, would seem to be, whether these devisees took the same estate as if their father had died intestate? Estates in joint-tenancy, coparcenary, and in common, are different from each other. We need not mention. the well recognised distinctions. It may be conceded, as contended in argument, that for most practical purposes in this country, there is no real difference between coparceners and tenants in common, yet they are differen as legal estates, and their qualities and incidents are not the same.

Tenancies, are recognised by the act of 1822, ch. 162; and estates in coparcenary by the Court of Appeals, in the case of Hoffar vs. Dement, 5 Gill, 132 , where it is said: “In Maryland the children of parents who die in- - testate, seized in fee in lands,'“Sc., take as coparceners, and are so treated by the act of 1820, ch. 191, sec. 5.’.’ The same principle applies to persons inheriting in virtue of the act of 17.86, ch. 45. They all constitute but one heir. Suppose, instead of the words employed in this "clause^ the will had devised this residue to the children, as tenants in common, • ¹⁹⁵ can it be doubted that they would have taken as devisees, and not as heirs at law? 3 Anstr., 727. These words are not used, but terms of the same import are.

In wills the expressions, “equally to be divided,” “share and share alike,” “respectively between and amongst them,” have been held to create a tenancy in common. 2 Bl. Com., ch. 12, note by Chitty, and in 2 Powell on Devises, ch. 18, pages 370, 371, it is said: “It maybe stated generally that all expressions importing division by equal or unequal shares, or referring to the devisees as owners of respective or distinct interests, and even words simply denoting equality, will have this effect.” He also states several examples and references. We are referred to 4 Kent