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 survivor, 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 approved 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 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 testator. 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 premises, 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 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, 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 whereever it appeared to be the intention of a testator, that the whole of his estate should go over together, upon the Roe v. failure of issue of more than two tenants in common, 6 East, 628. cross remainders shall be implied between them in the Dow. 384. mean time, in order to effectuate that intent.

Clayton,

1

Cooper v.
Jones,

3 B. & A. 425.

CHAP. XVI.

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

1. What Words create a Condi- 18. The same Words extend to

create a

WITH respect to the words that are necessary to What Words make a devise conditional, it is laid down by Lord Condition. Coke, that many words in a will make a condition in 1 Inst. 236, b. law, that make no condition in a deed; as a devise of lands to an executor ad vendendum. So if lands be devised to one ad solvendum, 20l. to J. S., or paying 201. to J. S., this amounts to a condition.

Paterson,

2. A person seised of lands, and having issue two Crickmore v. daughters, devised to the eldest and her heirs, that Cro. Eliz. she should pay to her youngest sister yearly thirty 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 if the words were, paying thirty pounds to her sister; this clearly was a condition; and so ea intentione, or

146.

Tit, 32. c. 24.

Tit. 16. c. 1.

Doe v. Lea,

3 Term R. 41.

Where con strued a

limitation.

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 terms 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 a preceding title, that in general, adverbs of time are construed only to denote the period when an estate in remainder is to vest in interest, and do not create a condition precedent; and all the cases on this point will found there.

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

Wellock v.

Hammond, Cro. Eliz. 204.

3 Rep. 20. b.

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

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 in Cro. Ja. 56. fee, upon condition to pay to his four daughters 201. each at their full age. This was held to be a condition; for it should be expounded according to the common law, where it was not necessary to expound it to the contrary. But where a devise was to an eldest son, upon such a condition, if it should be expounded to be a condition, it would be void, and to

Curteis v.

Wolverston,

no purpose; for it would descend upon the eldest son, and no remedy could be had against him.

make lands

debts and

7. By the common law real estates are not subject What words to the payment of debts due on simple contract, unless liable to made so by will; which is considered by many as a legacies. great defect, because credit is in fact given to the pos- Tit. 1. § 55. sessors of landed estates in proportion to the value of them. He, therefore, who neglects to charge his real property with the payment of his debts, sins, as it has been emphatically said, in his grave. And if he omits this circumstance, on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart.

8. These principles have given rise to a rule, both at law and in equity, that whenever a testator expresses an intention that all his debts shall be paid; or devises all his property, subject to the payment of his debts; his real estate shall be charged with the payment of his debts by simple contract, if there be a de- Tit. 1. § 59. ficiency in his personal estate.

Smith,

264.

9. A person devised in these words," As to my Bowdler v. temporal estate wherewith God has blessed me, I Prec. in Cha. give and dispose thereof as followeth-First, I will that all my debts be justly paid which I shall at my death owe, or stand indebted in, to any person or persons whatsoever. Also, I devise all the estate in G. to A. B." And this was all the estate the testator had. The Court held, that this will created a charge on the real estate, for payment of debts.

Tompkins v.

Id. 398. S. P.
Tompkins,

Vernon,

10. A person being seised of a real estate, and also Trott v. possessed of some personal estate, made his will in Prec. in Cha. writing, and thereby devised in these words,-"Im- 430. primis, I will and devise that all my debts, legacies, and funerals shall be paid and satisfied in the first place."

It was held, that this clause amounted to a charge on his real estate, for the payment of the debts and legacies.