been drawn together, is Fisher v. Wigg. It was said indeed to Ante, s. 53. be of doubtful authority; Lord Chief Justice Holt, differing from the other two Judges, and the judgment said to be reversed. But there never was any reversal, or even a writ of error brought; and therefore it is an authority as to a surrender of copyhold lands. In that case there is another anonymous one cited, 2 Vent. 365. upon a covenant to stand seised, which is directly in point to the present, though I can find no trace of it in the Register's book. In Lord Raymond's report, towards the end, there is a case cited of Hamerton v. Clayton, whereof the roll cannot be found; and in another, of Smith v. Johnson, which is said to have arisen upon a feoffment; which last Lord Holt, when observing upon the authorities urged by the two Judges, avoids the determination in, by saying it never came to a final judgment, upon account of the death of one of the parties. But these authorities seem express to support the opinion of the Court in Fisher v. Wigg: and upon the best consideration I can give the question, I am inclined to think that, be it in a will or deed, these words will make a tenancy in common; and to say otherwise would almost in every instance contradict the intent of the parties. I have the greatest reverence for the opinion of Lord Holt; but upon weighing the arguments, I own those of the two Judges appear to me to have more of natural reason, and his more of artificial and refined learning. Mr. Justice Gould's argument is an extraordinary good one, and not answered to my satisfaction. It is true, that case was upon a surrender, and those who argued to construe the words into a tenancy in common, compare a surrender to a will. Lord Chief Justice Holt insisting on the one hand, that it was to be construed as a deed, and rightly adds, that a surrender to uses is not like a deed to uses or trusts; for the surrenderor continues seised till the admittance of the surrenderee, who is not cestui que use in the mean time, but when admitted, is in by grant of the lord, and the statute of Uses does not extend to copyholds. But, if the reasoning of the other Judges be right, upon a surrender, it is much stronger and less liable to doubt than upon a covenant to stand seised, which is the manner the conveyance in question must operate. No livery was ever made upon this deed; it was to take effect after the death of the grantor, which, in a conveyance at common law, would be making an estate of

1 Watk. Cop.

[110.] et seq.

freehold to commence in futuro. It is made in consideration of of love and affection to his wife and children, and so cannot be good but as a covenant to stand seised. It was indeed said, that this, though a deed to uses, must be construed as a conveyance at common law, since otherwise the rules of construction will be confounded: now, it is true in general, that the construction of the words ought to be so; but that holds rather as to the limitation of the estate, than to the modification of the tenure, or manner of holding; as whether the estate given be a joint tenancy or a tenancy in common, in which case a greater latitude may be allowed, the law having no technical words to this purpose, as it has to the creating a fee simple or fee tail. 1 Inst. 190. b. If a verdict finds that a man has, duas partes mânerii in tres partes divisas, this shall not be intended a tenancy in common. But if it be in tres partes dividendas, then it seems that they are tenants in common by the intendment of the verdict.' And if these words will amount to a tenancy in common in a verdict, why shall not they do the same in a deed to uses; since the only latitude of construction allowed to a verdict, beyond an averment in a court, or a plea in bar, is matter of description? Thus the case stands upon comparing it with that of Fisher v. Wigg, and the different opinions of the learned Judges who debated it.

"But there are other reasons and circumstances which strengthen the construction of this deed, in a court of equity. Here is a father making a provision for his children; and if the estate given be construed a joint tenancy, the share of the sister so dying goes to the survivor, in prejudice of her own children.

"This Court has taken the liberty of making a tenancy in common, in many cases, even without the words equally to be divided as when mortgage money has been lent by two persons in equal moieties, and the security taken to them and their heirs ; the Court has held no joint tenancy to be intended by that conveyance. Indeed, in purchases where the money has been advanced in like proportions, it has been said to be otherwise; but when one advances more than the other, the Court has always held it a tenancy in common, upon the ground of intention; ever inclining much against joint tenancy and survivorship. The father has put his own construction on this deed. I am there

fore of opinion for the plaintiff, upon the authority of Fisher v. Wigg; strengthened by the special circumstances of this case. But as the books are a good deal unsettled upon the general point, if the defendant is not satisfied, I will send it to be argued before the Lord Chief Baron and Mr. Justice Burnet, at their chambers, who may certify their opinions to me: for the estate being of small value, the expense of making a case for the Court of King's Bench would be too heavy on the parties."

N. B.-Mr. Attorney General, the defendant's counsel, declaring himself satisfied with the opinion of the Court, the decree was accordingly.

Goodtitle v.

Stokes,

1 Wils. R. 341.

55. John Curl, by indentures of lease and release, conveyed the lands in question to trustees, to the use of himself and his wife for their lives, remainder to the use of all and every the children of John Curl, and their heirs, equally to be divided amongst them. The question was, whether they took as joint tenants or tenants in common. Lord Chief Justice Lee delivered the unanimous opinion of the whole Court, that this being a deed of uses, must be construed according to the intent of the parties, which most plainly was, that the children should take in common. And they relied upon the case of Fisher v. Wigg, Ante, s. 53. where the same point was determined in the case of a copyhold, which the Chief Justice said was never reversed, notwithstanding what is said in 1 Ab. Eq. 291. The Court also cited the case of Rigden v. Vallier; and gave judgment that the words equally Ante, s. 54. to be divided, in a deed of uses, created a tenancy in common.

56. In a modern case Lord Mansfield said, the opinion of the Cowp. R. 660. two Judges in Fisher v. Wigg, who differed from Lord Holt, appeared to be the better one; more liberal and better founded in law. And Mr. Justice Aston observed, that the words equally to be divided, had been determined to create a tenancy in common in a deed.

57. It has been stated, that in several cases where two or more Tit. 18. c. 1. persons make a joint purchase, they shall be considered in equity

as tenants in common; though the words equally to be divided be not inserted in the conveyance.

58. The usual manner of creating a tenancy in common, is to limit the estate to two or more persons, equally to be divided among them; they to take as tenants in common, and not as joint tenants.

What words

create cross remainders.

1 Saund. 185. n. 6.

Nevell v. Nevell.

Cole v.
Levingston,

1 Vent. 224.

Doe v. Dorvell, 5 Term. Rep. 518.

59. Where lands are given, in undivided shares, to two or more persons, for particular estates; so as that upon the determination of the particular estates in any of those shares, they remain over to the other grantees, and the remainder-man or reversioner is not let in till the determination of all the particular estates; there the grantees take their original shares as tenants in common, and the remainders limited among them, on the failure of the particular estates, are called cross remainders. But no technical words are necessary to create such remainders, for any expressions which sufficiently indicate the intention of the parties, will have that effect.

60. It is however a fundamental rule of law, that cross remainders cannot be implied in a deed. And Mr. Serjeant Williams observes, that the reason of this rule is to be found in 1 Roll. Ab. 837. R. pl, 2., where it is said, that if a man makes a feoffment in fee, to the use of J. S. and J. D., and the heirs male of their bodies; and for default of such issue of either of them, to the use of the survivor of them, having issue male, and to the issue male of such issue male; and for default of issue male of their bodies, the remainder to another: by this gift J. S. and J. D. have several inheritances: and no cross remainder in tail is raised by the words after, for want of the word heirs; for though it be by way of use, yet an estate tail cannot be raised without the word heirs.

61. In ejectment upon a long special verdict, the following point was resolved by the Court, and declared by Lord Hale as the opinion of himself, and the rest of the Judges :-That where one covenants to stand seised to the use of A. and B. and the heirs of their bodies, of part of his land, and if they die without issue of their bodies, then to remain, &c.; and of another part of his land, to the use of C., D., and E., and the heirs of their bodies, and if they die without issue of their bodies, then to remain, &c. That here, there are no cross remainders created by implication; for there never shall be such remainders upon the construction of a deed, though sometimes there are in the case of a will.

62. A. upon the marriage of his son B., who had two children then living, conveyed lands by deed to trustees, to the use of himself for life, remainder to B. for life, remainder to trustees to preserve contingent remainders, remainder to the use of such

child or children of B., and in such shares, &c. as B. should appoint; and in default of appointment, to the use of all and every the children of B., and the heirs of their several and respective bodies, as tenants in common; but if only one child, to the use of such only child, and the heirs of his or her body; and in default of all such issue, to the right heirs of A. for ever. B. had other children, and died without having made an appointment. It was held, that B.'s children took vested interests as tenants in tail, notwithstanding the power of appointment; and that there were no cross remainders between them, but on the death of each child without issue, his share fell into the reversion.

1 East's R. 416.

63. By a settlement made previous to marriage, lands were Doe v. Worsley, limited to the use of all and every the daughter and daughters of the marriage, share and share alike, equally to be divided between them, and of the heirs of the body and bodies of all and every such daughter and daughters lawfully issuing; and for default of such issue, to the use of the right heirs of the husband. A question arose upon this settlement, whether there were cross remainders between the daughters and their issue.

Lord Kenyon said, this was the case of a deed, in which by the practice of centuries no such implication could be raised. And it would be of most dangerous consequence to have this point disputed, upon which so many titles must depend. It was probably intended, that no part of the settled estate should go over, as long as there was any issue of the marriage remaining; but the parties had not said so. There were certain words used to express such an intention in deeds, which were well known; those had not been adopted in the present case, but the framers of the settlement had left that intention to be implied from other words, which could not be done. He would not go through all the cases, because they were collected with great ability by Mr. Serjeant Williams, in a note, in his edition of Saunders' Reports, Vol. 1. 185. a. to which he referred. They established the proposition he had before laid down, in respect to the construction of deeds, which never had or could be suffered to be doubted, without affecting an infinite proportion of the property of the kingdom, and removing land-marks.

Mr. Justice Lawrence observed, that in order to raise cross remainders in a deed between the issue of the first takers, there

n. 6.