Williams v Hensman

Facts

Money was bequeathed to be invested in stock, and to pay an annuity to A, with the ‘principal to go to her children at death.’ All eight children consented to money being invested in a mortgage fund. However, three were minors. The trustee advanced a sum to one of the children, and the other children covenanted to not to call upon the trustee to make up any deficiency in case the share should fall short of the advance, and also to indemnify the trustee against all claim, damage and expenses by reason of the advance.
The question was whether the trust was co-owned as a joint tenancy.

Judgment

The Chancery Court held it was a joint tenancy. And the act of the five severed their interest from the other three. Page-Wood VC gave the following decision.

“

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund—losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v Bell and Jackson v Jackson.