This bill in equity to remove a cloud on title presents the question whether a joint tenancy or a tenancy in common was *Page 156 created by the deed. If the former, the plaintiff prevails and the appeal is dismissed; if the latter, the defendants prevail to the extent of an undivided one half interest in common and the appeal is granted. The controlling statute (R. L., c. 259, s. 17) provides: "Tenants in Common. Every conveyance or devise of real estate made to two or more persons shall be construed to create an estate in common and not in joint tenancy, unless it shall be expressed therein that the estate is to be holden by the grantees or devisees as joint tenants, or to them and the survivor of them, or unless other words are used clearly expressing an intention to create a joint tenancy."
The purpose of the statute was to require that the intention to create a joint tenancy should be clearly expressed. Laws 1830, Title XX; Stilphen v. Stilphen, 65 N.H. 126, 138. The use of the phrase "and to the survivors of them" in the clause of the deed which recites the consideration and names the grantees is too sketchy and speculative to comply with the statutory requirement of a clear expression to create a joint tenancy. In no other clause of the deed is there words which suggest any estate other than a tenancy in common. It is difficult to believe that the quoted phrase can qualify as an expression that the estate is "to be holden by the grantees . . . as joint tenants, or to them and the survivor of them." At most it was an obscure and inaccurate use of the statutory language and consequently insufficient to come within the statute.
While we are not bound by technical common law rules of construction (Therrien v. Therrien, 94 N.H. 66), we are not committed to a rule that may discourage the use of accurate and clear expressions in legal instruments. The phrase used in this case and its location in the deed is more indicative of lack of comprehension on the part of the draftsman as to the effect of the words used than it is indicative of an intent and purpose to create a joint tenancy. The deed created tenancy in common and the order must be
Exceptions sustained.
JOHNSTON, C. J. and KENISON, J., dissented: the others concurred.