Roe v.
Grew,
ante, § 55.

8 Term R. 519.

ante, § 27.

1 Bro. R. 219.

ante, c. 8. § 27.

other sons would take vested estates, while the eldest or any issue of his body were in existence.

If the remainder was devised to the issue of A. the estate would vest in all his children, as joint tenants for life, and tenants in common of the inheritance.

The consequence is, that in order to effectuate the general intent of the testator; which in the three cases put certainly is, that the estate devised shall go to all the lineal descendants of the first devisee, in a course of inheritance; and shall not go over as long as there are any such descendants remaining; the Court is obliged to apply the rule, and to construe the second devise in such a manner as to create an estate in fee or in tail in the first devisee.

73. This doctrine is fully confirmed by Lord Thurlow in his determination of the case of Jones v. Morgan, in which he concluded his judgment in these words" By all the cases, where the estate is so given that after the limitation to the first taker it is to go to every person who can claim as heir to the first taker, the word heirs must be a word of limitation; all heirs, taking as heirs, must take by descent. In cases where I can bring it to the point, that the testator by the word heirs, as used in the will, means first, second, third, and other sons, there I change the words of the will. But here I think the word heirs was the very thing he meant. Suppose William had had a son, which son had had a son, and died, living Sir William; the eldest son of the son would have been heir; if there had been a title he would have taken it; but the estate, if these had been words of purchase, must have gone to the second son, the devise to the first son being a lapsed devise, like the case of Warner v. White, lately in the House of Lords, from Ireland. But Sir William Morgan meant

the estate to go to whoever should be heir. I think the argument immaterial that he meant the first estate to be an estate for life; I take it that in all cases the testator does mean so; I rest it upon what he meant afterwards. If he meant that every other person who should be heir should take, he then meant what the law would not suffer him to give, or the heir to take as a purchaser. In conversing with a great authority, whom I will not name, I asked what would become, in the case stated, of the grandson; the answer was, he should take as heir. I know he might, but then he must take by descent; all possible heirs must take as heirs, and not as purchasers. Many cases have been determined on the ground of a devise to the first taker, with a remainder to the heir male in the singular, or heirs male in the plural, as in King v. Burchall before Lord Henley, where it ante. was in the singular number.

The rule in Shelley's case was used as a demonstration that it was indifferent whether the limitation was in the singular or in the plural number; it was equally an estate tail. So where it is to the heir of the first taker, and to the heirs of that heir, it has been determined to be an estate tail. Indeed in all cases where the limitation is of an estate of freehold to a man, and afterwards to the heirs of his body, whether general or special, so as to give it to the heirs as a denomination or class, the heirs shall be in by descent, and not by purchase. And the case stated by Anderson in Shelley's case, of a limitation to the use of A. for life, remainder to the use of his heirs, and of their heirs female, is the only one to the contrary; and in that case the word heirs must be a description of persons, in order to let in the limitations to the heirs female.

Cont. Rem. 6th edit. 196.

74. Mr. Fearne's conclusion to his observations on the rule appears to have been founded on the same principle; or if not, is certainly conformable to it for he says, "Wherever the ancestor takes the freehold, the inheritance will not go to all the heirs, &c. in the course of inheritable succession, unless by an actual descent; and consequently if, after the first taker, it is to go to every person who can claim as heir to him, the intended succession can only be effectuated by taking the word heirs, &c. as a word of limitation. If after him all heirs, &c. are to take as such, that is, as answering that description, they can only take by descent. If the law will not admit of all possible heirs, &c. taking the inheritance, after its inception by a freehold in the ancestor, otherwise than by descent; it follows, that wherever the limitation to the heirs, &c. after a freehold to the ancestor, is admitted to reach the whole denomination or class of heirs described, they must take by descent, and not by purchase."

TITLE XXXVIII.

DEVISE.

CHAP. XV.

Construction-What words create a Joint Tenancy, or
Tenancy in Common, and Cross Remainders.

W

SECTION 1.

Joint

ITH respect to the words which create a joint What words tenancy in a will, it has been long settled create a that a devise to A. and B. generally, or to A. and Tenancy. B. and their heirs, makes them joint tenants. So Tit. 18. c. 1. where a man devised lands to his two daughters and Anon. Cro. their heirs, it was resolved that they took an estate Eliz. 431.

in joint tenancy.

3.

c. 1.

Aylor v.

2. Though the estates devised to two or more per- ante, tit. 18. sons, in this manner, should have different commencements, yet the devisees will take as joint Cheap. tenants, as appears from two cases which have been Oates v. already stated.

3. Wherever lands are devised to two or more persons, with a benefit of survivorship among them, they will take as joint tenants; though there are other VOL. VI.

E e

Jackson.

Fowler v.
Ongley,
And. 194.
Webster's
case, 3 Leon.

19.

Furse v. Wicks,

2 Roll. Ab. 89.

1 Vent. 216.

Tuckerman v. Jefferies,

3 Bac. Ab. 681.

Holt. Rep. 370.

words in the will indicating an intention to create a tenancy in common.

4. Lands were devised to A. B. and C. in tail; and then followed these words-I will that every of them be the other's heir, by equal portions.

The Court at first held this to be a tenancy in common; but afterwards upon good consideration it was adjudged to be a joint tenancy, for so it was implied; and it was as much as to say that each survivor should be the other's heir.

5. Lord Hale says, a devise to two, equally to be divided between them, and to the survivor of them, makes an estate in joint tenancy, upon the express import of the last words.

6. A person devised to Jane the wife of B. and to Elizabeth the wife of C. all his estate, &c., to be equally divided between them, during their natural lives; and after the deceases of the said Jane and Elizabeth, to the right heirs of Jane for ever.

The question was, whether this devise made Jane and Elizabeth joint tenants for life, so as upon the death of Jane the whole survived to Elizabeth for life; or whether upon the words, equally to be divided between them, they were tenants in com

mon.

Lord Holt pronounced the opinion of the Court, that they were joint tenants, notwithstanding the words, equally to be divided between them, and the lands ought to survive to Elizabeth. 1st. Though upon such words generally, they would be tenants in common, yet if it should be so in this case, it would be expressly against the intent of the testator, and would defeat the heirs of Jane of part; for they were to take altogether, and not by moieties, one at one time, and one at another, but all at once;