3 Bro. Parl. Ca. 104. What words create Cross so taken; and then, as to the next words" and to their heirs equally to be divided between them, share and share alike," these were plainly words importing a tenancy in common, and should operate accordingly, so as to make them tenants in common of the inheritance; by which construction of the will every word would take place. A decree was made accordingly; which was affirmed by the House of Lords. 26. With respect to the words by which cross reRemainders. mainders are expressly created in a will, they are of course the same as those which are used for that purpose in a deed. But cross remainders may arise in a will, by implication of law; where it appears to have been the intention of the testator that there should be cross remainders. Clache's Case, Dyer, 303-330. Chadock v. Cowley, 27. A. having issue five sons, his wife being ensient with the sixth, devised two-thirds of his lands to his four younger sons, and the child in ventre matris, if it was a son, and their heirs; and if they all died without issue male of their bodies, or any of them, that the lands should revert to the right heirs of the devisor. It was adjudged that the younger sons were tenants in tail, with cross remainders to each of them: for it was clearly the intention of the testator that no part of the estate devised should revert to the heirs of the devisor, as long as any issue remained, of any of his younger sons. 28. A man having two sons, devised part of his Cro. Ja. 695. lands to one of them and his heirs, and the remaining part to the other and his heirs and added this item; I will that the survivor of them shall be heir to the other, if either of them die without issue. Adjudged that they were tenants in common in tail, with cross remainders. 29. A testator devised in these words,-"I give Holmes v. all my lands in M. to my two daughters, Elizabeth Meynell, T. Raynı. and Anne, and their heirs, equally to be divided 452. between them; and in case they happen to die with- 2 Show. 135. out issue, then I give and devise all the said lands to my nephew." Adjudged that the two daughters took estates tail, with cross remainders. 30. But cross remainders will not be raised between two persons without words creating a necessary implication. 969. 31. Richard Holden devised lands to his grandson Comber v. Richard Holden, and grand-daughter Ann Holden, Hill, Stra. equally to be divided, and to the heirs of their respective bodies; and for default of such issue, to another person. It was determined that there were no cross remainders between Richard and Ann Holden, because there were no express words, nor any necessary implication to raise them; for the mere words, "and for default of such issue," being relative to what went before, only meant, and for default of heirs of their respective bodies; and then it was no more than if it had been a devise of a moiety to Richard and the heirs of his body, and of the other moiety to Elizabeth and the heirs of her body, and for default of heirs of their respective bodies, remainder over; in which case there could be no doubt. v. Oldis, 32. John Owen being seised in fee of two mes- Davenport suages, devised them to his wife for her life, and after her decease to his son and daughter John and Margaret, to be equally divided between them, and the several and respective issues of their bodies, and for want of such issue to his wife in fee. Lord Hardwicke Formerly between more than Two. 1 Saund. 185 a. n. 6. was of opinion that this will was not so penned as to create cross remainders, which not being favoured by the law could only be raised by an implication absolutely necessary; and that was not the case here, for the words several and respective effectually disjoined the title. 33. It was however laid down by the Judges in the not implied reign of King Charles I., that cross remainders should not be implied between more than two persons. And the late Mr. Serjeant Williams has observed that this doctrine was established for two reasons; one was to prevent, as well the confusion which it was said would follow, from the division of an estate among many, as the uncertainty which would arise whether the surviving shares should vest in them as joint tenants or tenants in common, and for what estate; the other, which was a technical reason, was to avoid the splitting of tenures. Gilbert v. Witty, Cro. Ja. 655. 34. A person having three sons, and being seised of three houses, devised a house to each son and his heirs; with a proviso, that if all his said children should die without issue of their bodies begotten, that then all his said messuages should remain over, and be to his wife and her heirs. It was adjudged that these words did not create cross remainders, between the sons; but that on the death of any one of them without issue, his house should go over to his mother. And Mr. Just. Dodridge said, that although in a devise to two persons, there might be cross remainders, by implication, yet that in a devise to three, cross remainders should never be implied; on account of the uncertainty and inconvenience. Cole v. 35. In a subsequent case Lord Hale said, that cross Levingstone, remainders should not be created between three. 1 Vent. 224. as if persons, unless the words of the will plainly proved the intent of the testator to have been so; Blackacre were devised to A., Whiteacre to B., and Greenacre to C., and if they should all die without issue of their bodies, vel alterius eorum, then cross remainders would be allowed. White, Cowp. 777. 36. A person devised to his four sisters and a niece Perry v. for their lives, share and share alike, as tenants in common, and not as joint tenants, remainder to their sons successively in tail male, remainder to their daughters in tail, the reversion to his own right heirs. Lord Mansfield said, that wherever cross remainders were to be raised by implication between two, and no more, the presumption was in favour of cross remainders, where they were to be raised between more than two, there the presumption was against cross remainders; but that presumption might be answered by circumstances of plain and manifest intention either way. This was a qualificaticn of the rule laid down in former cases; for they seemed to say that there should not be cross remainders between more than two; but the true rule was to take it with the qualification above stated. Here the presumption was against cross remainders, and judgment was given that there were no cross remainders. 37. In the case of Doe v. Cowper, which has been ante, c. 12. stated in a former chapter, Mr. Just. Lawrence § 53. observed, that the principal part of the plaintiff's argument was founded upon the raising of cross remainders by implication, between the issue of Richard Cook. But it was a settled rule that they should not be implied between more than two, unless such appeared upon the face of the will to have been the intention of the testator: but no such intent This Doctrine somewhat altered. 1 Saund. 185 a. n. 6. Wright v. appeared in that case, from the words of the will; nor could it be implied merely from the circumstance that the remainder over was not to take effect but upon the dying of Richard Cook without leaving issue. 38. This doctrine has been somewhat altered in modern times; and it is now held, that where there are no words to sever the title, cross remainders shall be implied, and that the presumption against cross remainders, between more than two persons, may be answered by circumstances of plain intention. 39. A devise was in these words,-"To the use of all and every the daughter and daughters of the body of P. H., and to the heirs of her and their body and bodies lawfully issuing; such daughters, if more than one, to take as tenants in common, and not as joint tenants; and for default of such issue, to the right heirs of the devisor." There were two daughters; and one of them having died an infant, the question was, whether her sister became entitled to her moiety. On a On a case being sent out of the Court of Chancery, for the opinion of the Judges of the Court of K. B., the certificate was,-"There are no words in the instrument which intimate any intention to limit over the respective shares of the two daughters dying without heirs of their bodies respectively; on the contrary the limitation over is of the whole estate limited to all the daughters, and is to take place on the express contingency of failure of all and every the daughter and daughters, and the heirs of their body and bodies; and the limitation over on default of such issue is to the heir at law. Consequently we are of opinion that as nothing is given to the heir at law, whilst any of the daughters or their issue continue, they must, among themselves, take cross remainders." |