more than two, the presumption was against them; but that presumption might be answered by circumstances of plain and manifest intention, either way. Whatever was declaratory of the intention of the party, he took to be expressed; no technical words were necessary to convey an intention, but if taking the whole instrument together there was no doubt of the party's meaning, the Court arrived at the con clusion. Now here the testator set out with devising all his farm, &c. to his daughter and grand-daughter for their lives, remainder after the death of the sur vivor, to all and every the younger children of Mary Foxon ; if more than one, equally to be divided amongst them, and the heirs of their respective body and bodies, as tenants in common; and if only one child, then to such only child and the heirs of his or her body, &c.; and for want of such issue, he gave and devised the said premises to his son in law C. N. What he meant by the said premises was evident, and could not have been rendered clearer by saying all the said premises, though it might have served to multiply words. Then, after several limitations, and for want of such issue, he proceeded to divide the estate into thirds, to go to different persons: till then the entirety of the estate was to be preserved, and all was to go over at the same time. But great stress was laid upon the word respective, as disjoining the title; and the authority of Lord Hardwicke was referred to in the cases mentioned. No person regarded what fell from that great Judge with more reverence than he did; but it was unworthy of his great learning and ability to lay such stress as he was stated to have done on the word respective. Creating a tenancy in common divided the title as much, whether the word respective was used or not; and as

to what might have been said by other Judges with
reference to the opinion delivered in Comber v. Hill,
and Davenport v. Oldis; in subsequent cases, where
the word respective did not occur, feeling themselves
right on the principle on which they proceeded, it
was not to be wondered at that they were desirous of
relieving their own minds from the weight of Lord
Hardwicke's opinion, that there was a distinction
between the cases, in the omission of that word, on
which he so much relied; but it was too much to
infer from thence that those Judges therefore ap-
proved of his opinion, or that their judgments were
governed solely by that consideration. In the case
of Atherton v. Pye, the devise over, in default of such ante, § 42.
issue, was of all the testator's said lands; and stress
was laid by some of the Judges on the word all, in
support of raising cross remainders between the

issue;
he would not say by implication, but by what
the Judges collected to be the intention of the tes-
But the word all was not decisive in that
case, and in truth made no difference in the sense;
for a devise over of the said premises, or the pre-
mises, or all the said premises, meant exactly the
same thing. Admitting therefore the general rule,
that the presumption was not in favour of raising
cross remainders by implication between more than
two, still that was upon the supposition that nothing
appeared to the contrary, from the apparent intention
of the testator. He had no doubt here but that the
testator intended to give cross remainders among
the issue of Mary Foxon. The devise over of the
premises meant all the premises; he intended that all
the estate should go over at the same time. He
thought Lord Mansfield's quarrel with Davenport v.
Oldis was well founded, and he agreed with the cases

Doe v. Webb,

of Wright v. Holford, and Phipard v. Mansfield; and he could not distinguish this case from those. He was clearly of opinion that the intention of the testator was the polar star by which the Court should be guided in the construction of wills, where no law was infringed and here the intention was clear to give cross remainders.

The other Judges concurred, and judgment was given accordingly.

45. A person devised her estate in remainder, 1 Taunt. 234. after giving several preceding estates, to her three daughters Frances, Mary, and Arabella, and to the heirs of their bodies respectively, as tenants in common; and in default of such issue, she gave the same to her own right heirs for ever.

The Court of C. P. held, that cross remainders were created between the three daughters; and that wherever it appeared to be the intention of a testator, that the whole of his estate should go over together, upon the failure of issue of more than two tenants in common, cross remainders shall be implied between 6 East, 628. them in the mean time, in order to effectuate that

Roe v.
Clayton,

1 Dow. 384.

intent.

TITLE XXXVIII.

DEVISE.

CHAP. XVI.

Construction-What words create a Condition, and make
Lands liable to Debts and Legacies, and enable
Persons to sell Lands.

1. What Words create a Con- | 17. Copyholds liable as well as
dition.
Freeholds.
4. Where construed a Limitation. 20. Legacies not preferred to
7. What Words make Lands

specific Devises.

liable to Debts and Lega- 22. What Words enable Persons

WITH

SECTION 1.

Condition.

ITH respect to the words that are necessary What Words to make a devise conditional, it is laid down create a by Lord Coke that many words in a will make a con- 1 Inst. 236 b. dition in law, that make no condition in a deed; as a devise of lands to an executor, ad vendendum. if lands be devised to one ad solvendum 201. to J. S., or paying 201. to J. N., this amounts to a condition.

So

2. A person seised of lands, and having issue two Crickmore v. daughters, devised to the eldest and her heirs, that Paterson, she should pay to her younger sister yearly thirty 146. pounds.

The question was, if this was a condition, and all the Justices held that it was; for so was the intent of the devisor; and otherwise the younger sister had no remedy for the rent. Wray and Gawdy held, that

Cro. Eliz.

Tit. 32. c. 24. § 11.

if the words were, paying thirty pounds to her sister, this clearly was a condition; and so ea intentione, or ad effectum; and the testator's intent appearing, the law should so adjudge it; and the younger daughter might enter into the moiety.

3. It has been already observed, that even in a deed there were no precise technical words required to make a condition precedent or subsequent: a rule which may be applied more generally and fully to the case of a will. And it has been also stated, in Tit. 16. c. 1. a preceding title, that in general adverbs of time are construed only to denote the period when an estate 3 Terin R.41. in remainder is to vest in interest, and do not create a condition precedent; and all the cases on this point will be found there.

Doe v. Lea,

$79.

Where construed a

4. In consequence of the doctrine that no person but the heir can enter for a condition broken, it has Tit. 16. c. 2. been long established that a devise to the heir upon $ 29. a condition will be construed a limitation.

Limitation.

Wellock v.

5. A person devised his land to his eldest son, Hammond, paying to his daughter and to each of his other sons 40 shillings within two years after his death.

Cro. Eliz. 204.

3 Rep. 20 b.

Curteis v.

It was resolved, that though in a will the word paying would create a condition, yet in this case the law would construe it to create a limitation; for if it should be held a condition, then it would descend on the eldest son, and it would be at his pleasure whether his sister or brothers should be paid or not, and therefore it must be considered the same as if the devise had been to the eldest son till he made default in payment of the sums given to the sister and brothers.

6. A person devised his estate to his second son Wolverston, in fee, upon condition to pay to his four daughters 201. each at their full age. This was held to be a

Cro. Ja. 56.