290 HIGH COURT OF CHANCERY.
tion which he may have been allowed by the Orphans Court
for discharging the duties "of executor, should have no more in-
fluence upon his commission as trustee under this will, than if
the two offices were filled by different persons.
I am of opinion, therefore, that this trustee is entitled in the
settlement of his accounts as trustee, to an allowance of ten
per centum upon the property which may have come into hh
hands as such. He is not, however, to be allowed ten per
cent. or any thing at all, upon his disbursements; the com-
mission fixed by the testator, being the equivalent for his ser-
vices in the administration of the trust, which includes of course
the proper application and disbursement . of the income of the
trust estate. An order will, therefore, be passed referring the
case to the Auditor, to take the proper accounts, and making
provision for the taking of such evidence as the case may require.
[No appeal was taken from this order.]
MARY MOODY ET AL
vs. SEPTEMBER TERM, 1848.
EMILY ELLIOTT ET AL.
[CONSTRUCTION OF WILL.]
A TESTATOR devised certain real and personal property to his wife, "to her
use, for the benefit of her and her children under age, and after they allcome
of age," to his wife during her natural life, and "no longer," and after her
death, the whole "to be divided equally» share and share alike," between the
testator's seven children, (naming them,) or equally between such as shall
then be living. It was HELD—
That, though this will was executed prior to the act of 1822, ch. 162, which
abolishes thereafter estates in joint-tenancy, unless the devise expressly de-
clares, that the property shall be so held, this devise does not create an
estate in joint-tenancy.
The words, "to be equally divided, share and share alike," even in a deed,
would create a tenancy in common.
The will being prior to the act of 1825, ch. 119, and there being no words of
inheritance or perpetuity, or any other language used, from which the inten-
tion of the testator to pass a fee could be clearly ascertained, it was held,
that the children took estates for life only.
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