The bequest of the use and income to Sarah and Mattie created a tenancy in common. Ordinarily in such a case it is presumed that the testator intended that each of the tenants in common should take an equal share and that the share of one should not pass to the other by way of survivorship. Allen v. Almy, 87 Conn. 517, 525, 89 A. 205. This, of course, is particularly true where there is a direction that the amount of the bequest be divided equally among the cotenants or that the beneficiaries shall take share and share alike, or an equivalent expression. Union New Haven Trust Co. v. Sellek, 128 Conn. 566, 568, 24 A.2d 485; State Bank Trust Co. v. Nolan, 103 Conn. 308, 317, 130 A. 483; Houghton v. Brantingham, 86 Conn. 630, 639, 86 A. 664. Whether the survivor of two beneficiaries to whom a common bequest has been made will take the whole fund bequeathed depends, however, on the intent of the testator, and if from the will as a whole it appears that it is his intent that the survivor shall take, then he does so, not by right of survivorship as in a joint tenancy, but rather by reason of a limitation over of a remainder interest. Blodgett v. Union New Haven Trust Co., 111 Conn. 165, 167, 149 A. 790; Bolles v. Smith, 39 Conn. 217, 219. Under such circumstances the tenants in common take interests sometimes called cross remainders.

The parties are in accord that, under the existing conditions, there are three possible ways of disposing of the excess income: (1) It might be accumulated and added to the principal fund; (2) it might be paid to Frederick Lewis as the sole surviving life beneficiary; or (3) it might be regarded as intestate estate, the gift of it having failed. See Union New Haven Trust Co. v. Sellek, 128 Conn. 566, 568, 24 A.2d 485. We first take up the claim of the ultimate remaindermen, the Hartford Hospital and the Immanuel Congregational Church. They maintain that the excess income should go to the principal fund. Whether their position is sound depends primarily upon the testatrix' intent.

We think that Mrs. Jorgensen's last will and testament justifies the conclusion that she evidently supposed that she had disposed of her entire estate and did not die intestate as to any part thereof. Since she had vested her trustee with title to her residuary estate, any life estate created by the trust but failing during the term thereof for want of a specific provision for the further disposition of such interest upon the death of the life tenant, in this instance, the income reserved for Harold and Ira, remained in the trustee as an addition to the trust corpus, to be distributed as such to those found entitled thereto on the termination of the trust estate, that is, upon the death of Claude. Union New Haven Trust Co. v. Sellek, 128 Conn. 566, 24 A.2d 485, 140 ALR 837, and annotations at p 864; 1 Scott, Trusts, 718, § 143. We have carefully examined all the authorities that the appellant has marshaled in support of his several propositions but find therein nothing at variance with what we have said.

Certain of the parties claim, however, that there was a right by survivorship attached to each gift in the sixth article, by virtue of which, upon the death of any of the legatees, the others would share the portion given to him or her. It is not claimed before us by any party that the gift in the sixth article was a class gift, and indeed such a claim would be without foundation. Shannon v. Eno, 120 Conn. 77, 93, 179 A. 479; Union New Haven Trust Co. v. Sellek, 128 Conn. 566, 569, 24 A.2d 485. Nor did the provision create a joint tenancy with the incident of survivorship. Such an estate is not favored, and will not be held to exist, unless the will plainly manifests that the testator so intends. Allen v. Almy, 87 Conn. 517, 525, 89 A. 205; Blodgett v. Union New Haven Trust Co., 111 Conn. 165, 167, 149 A. 790; Peyton v. Wehrhane, 125 Conn. 420, 436, 6 A.2d 313. The direction that at the termination of the trust the fund is to be "divided equally (with one exception)" among the legatees in itself is indicative that a joint tenancy was not intended; Shannon v. Eno, supra, 93; and this direction takes on increased weight from the fact that in the "exception" it was stated that a certain group of legatees was to be treated "collectively," for this strongly indicates that the others were not to be regarded in any sense as constituting a unit.

Even a legatee's contention for a construction of a will against his interest does not warrant its adoption by the court. Union New Haven Trust Company v. Sellek, 128 Conn. 566, 24 A.2d 485, 140 A.L.R. 837. As stated in In re Harries' Will, 206 N.Y.S.2d 15, "(p)erformance of precatory language occurs as a matter of conscience only, and the testator accepts all risk of compliance or non-compliance." We determine that the claim and assertion of the defendant legally amounts to no more than an expression of his conscience and intent to morally comply with the precatory language in the will.

The answer of the court to the ultimate question is No. White v. Smith, 87 Conn. 663. The right of any beneficiary dying before the termination of the trust, to receive income, terminates at his or her death, and there is nothing which could pass to his or her estate. Union New Haven Trust Co. v. Sellek, 128 Conn. 566, 576. The second question is: "Did Anna G. Concannon, by surviving the testator, obtain a vested interest in the real estate devised under Articles Two and Three of said will, subject only to the life uses therein provided, or does the title vest in the distributees to be ascertained as of the dates of death of the respective life tenants?

The duty of deciding the question rests upon the court and it cannot escape it because of concessions by the interested parties. Burnham v. Burnham, 101 Conn. 529, 533; Union New Haven Trust Co. v. Sellek, 128 Conn. 566, 571; Allen v. Tyson, 133 Conn. 699, 702. As a general rule, a testator has the right to impose such conditions as he pleases upon a beneficiary as conditions precedent to the vesting of an estate in him or to the enjoyment of a trust estate by him as cestui que trust.

Such an order would be tantamount to rewriting the Wehrle will, a practice not sanctioned by the law. Newton v. Healy, 100 Conn. 5; Union New Haven Trust Co. v. Sellek, 128 Conn. 566. The attorney general of the United States has no right to the fund in the hands of the plaintiff.