2 Black. Com. *180, *194. Our rule is the reverse of this. A conveyance or devise to two or more persons creates an estate in common, and not one in joint tenancy, unless it is expressed therein that such estate is to be holden by the grantees or devisees as joint tenants or to them and the survivors of them or other words are used clearly expressing an intention to create a joint tenancy. P.S., c. 137, s. 14. Pierce v. Baker, 58 N.H. 531. The purpose of the statute is not to forbid or prevent the creation of estates in joint tenancy but to make certain that effect is given to the intention of the grantor or devisor. The reason of the enactment is stated in the preamble that "it often happens that joint tenancies are created against the intentions. . . of testators, through ignorance of the proper terms to create estates in common."

After the joint tenancy had been terminated, it would have required a "clear expression of intention to create a joint tenancy" (RSA 477:18) to reinstate the tenancy. See Pierce v. Baker, 58 N.H. 531 (1879) (Doe, C.J.). The fact that the parties continued residing together provisionally, even though they may have been contemplating remarriage, does not satisfy this statutory standard. Defendant also asks that the property division decree be modified or nullified because of the reconciliation of the parties after the divorce and the unexpected death of the husband shortly thereafter.

"Except where the statute may in terms require an express declaration of joint tenancy and is rigidly construed in that regard . . . it seems evident that a devise (and likewise, in some jurisdictions, a bequest) made in such terms or conjoined with such provisions as clearly to imply that the estate is to continue in the survivor of the designated persons will be held to create in them a joint tenancy." Cases found in support of this general proposition include Pierce v. Baker, 58 N.H. 531, where the testatrix willed all her property to her two daughters, or to the "longest liver of them." This provision was held to create a joint tenancy in the two daughters with rights of survivorship.

This was evidence which warranted a finding that their interests became those of tenants in common. See Burns v. Nolette, 83 N.H. 489, 495; Pierce v. Baker, 58 N.H. 531. The plaintiff's exception to the exclusion of his testimony that "at the time [he] signed the bond" there was no "agreement with respect to the return of that money to [the] joint account" cannot be held to present prejudicial error.

However, if R. L., c. 259, s. 17 means anything, it must necessarily mean that to create a joint tenancy the grantor or testator must not only intend to create such an estate, he must, moreover, express this intention in his deed or will, either by the use of the words set out in said section, or by using other words clearly expressing his intention. Pierce v. Baker, 58 N.H. 531; Short v. Milby, 64 A.2d 36 (Del.); Cross v. Cross, 85 N.E.2d 325 (Mass.). See Roaf v. Champlin, 79 N.H. 219, 223.

But an estate in joint tenancy may exist in personalty as well as in realty. Pierce v. Baker, 58 N.H. 531. And while there is a presumption in this jurisdiction against an intention to create joint interests in personal property, this presumption may be overcome by proof of a contrary intention. Burns v. Nolette, 83 N.H. 489, 495, 496.

The rule in this state (induced by the statute as to real property) is that there is a presumption against joint interests in personalty; but the power to create such interests has long been recognized. Pierce v. Baker, 58 N.H. 531. Garland's Appeal, 126 Me. 84, is relied upon to show that a joint interest in personalty, so as to confer a right of survivorship, can only be created when the four unities, required for joint tenancies in realty, are present.

The Supreme Court of Michigan in Finch v. Haynes, 144 Mich. 352, 107 N.W. 910, held that a deed which conveys land to two grantees and to the survivor of them, and to their heirs and assigns forever, conveyed a moiety to each for life with remainder to the survivor in fee, and that neither of them, by conveyance during his life can create a tenancy in common, so as to cut off the contingent remainder. In 46 A.L.R.2d l. c. 535, it is stated: "A gift to persons `and' to the survivor of them * * * is at least open to the construction that it manifests an intent to create a joint tenancy," citing Stimpson v. Batterman, 59 Mass. (5 Cush.) 153; Bowditch v. Atty. General, 241 Mass. 168, 134 N.E. 796, 28 A.L.R. 713; and Pierce v. Baker, 58 N.H. 531. Appellant contends that the will created a tenancy in common among the three devisees and that therefore one of the tenants had the right to bring partition. It is true that the words "to share equally," as used in this will, or "share and share alike" frequently import a division of the property among the takers, and in fact are part of the language often used conveying a tenancy in common.