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 judgement, 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 upon 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 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 freehold to commence in futuro. It is made in consideration 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 maneri 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 aver ment in a court, or plea in bar, is matter of description? Thus the case stands upon comparing it with that of Fisher v. Wigg, and the differing 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 therefore 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 expence 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. 1 Wils. R. 57. John Curl, by indentures of lease and release, Goodtitle conveyed the lands in question to trustees, to the use of himself and his wife for their lives, remainder 341. 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 Ch. Just. 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 Fisher v.. the case Fisher v.. Wigg, where the same ante, § 55. 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 judgement that the words equally to be divided, in a deed of uses, created a tenancy in common. 660. 58. In a modern case Lord Mansfield said, the Cowp. R. opinion of the 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. J. Aston observed, that the words equally to be divided, had been determined to create a tenaucy in common in a deed. 59. It has been stated, that in several cases where Tit. 18. c. 1. $ 34, 5, 6. two or more 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. 60. 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 61. When lands are given in undivided shares to Remainders. 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. 1 Saund. 185. n. 6. Nevell v. Cole v. 62. 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 founded in 1 Roll Ab. 887. 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. 63. In ejectment upon a long special verdict, the 1 Vent. 224. following point was resolved by the Court, and de clared 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 |