
    Amos Hungerford, Josiah Hungerford, Jehiel Hungerford, Stephen Hungerford, Nathaniel Hungerford and Elihu Hungerford against Robert Anderson.
    June, 1810.
    
      A. devised four^ons, ⅛! ?nd ""to their male ow"3 °bodies ever^añd⅞ case either or any of them ■should die be-oTsi^his^r their lands to be equally divided between brethren,IV1 or their male heirs. JS. died during infancy, and before distribution of the lands, without issue. C. and D. died ■successively afterwards leaving issue male; and lastly E. died leaving issue female only. Held that this devise created no cross remainders between the devisees, and that the entailment being spent on the death of E. without issue male, the estate reverted to ¡the heirs general of the devisor, except the share of B. which, on his death, went to the surviving brethren, and on their deaths to their respective heirs general.
    In order to raise cross remainders by implication in a will, there must appear an intention that no other person shall inherit any part of the estate, or take it by way of remainder, as long as any of the immediate devisees, or any of their issue, are living.
    in a devise of real estate the words lgive such estate to J.I., or A. shall have such estate, or such estate shall be eqnalllif divided between A', and B.f are sufficient, without other words, to vest a fee-simple in the devisee or devisees.
    CASE stated.
    This was an action of ejectment. The defendant P^eade(l the general issue; after which the following cass was stated, and agreed to by the parties:
    
      Green Hungerford died in 1735, seised in fee of the demanded premises, having devised the same by his last will as follows : “ I give to my four sons, viz. Green, _ ¶⅜- ... Lemuel, Stephen and JVathamel, all my right in all the undivided lands in East Haddam, to be equally divided between'them; all which lands, and right of lands, I give . . to my aforesaid four sons, and to their male heirs of their own bodies begotten, for ever. And it is my will t[lat jf either of my sons shall die before he or they shall come of age, his or their lands shall be equally divided between the surviving brothers, or their male heirs.” Stephen died in 1737, an infant, without issue. In 1743 the premises were distributed to Green, who thereupon entered and possessed the same until his death. In 1786 Lemuel died, leaving Joaiah Hunger-ford, one of the plaintiffs, his only son. In 1807 Nathaniel died, leaving the other plaintiffs, his sons. In 1808 Green died, having never had issue male, leaving Anna, wife of the defendant, with eight other daughters. The plaintiffs entered, and were disseised by the defendant. The question for the opinion of the nine judges was, whether the plaintiffs were entitled to recover.
    
      Daggett and Peters, for the plaintiffs,
    after remarking that the estate devised was an estate in tail male general, and that by no possibility could a female take until such estate was spent, contended, that cross remainders were created by the will, and that upon the death of Green, the estate went to the heirs male of Lemuel and Nathaniel. The old doctrine that cross remainders shall never be raised by implication between more than two, is entirely exploded. They cited Dyer, 303. b. pi. 49. 4 Leon, 14. pi. 51. T. Raym. 454. Wright v. Holford, Cowp. 31. Phi-par d v. Mansfield, Cowp. 797. Atherton v. Pye, 4 Term Rep. 710. Co. Lift. 195. b. n.fii. by Butler.
    
    
      Hosmer, for the defendant,
    contended,
    1. That the devise created no remainder of any kind; because it expressed no life estate in the sons of the testator. The whole inheritance passed to them. The words “ heirs male” are not words of purchase but of limitation. 2 Bl, Com. 164. Shelley's Case, 1 Co. 104. Bishop v. Selleck, 1 Day, 299. The word “ heirs,” by long usage, has obtained a technical import as nomen collectivum, and conclusively so, unless other words show a different intent. Paw. on Dev. 357, 358. 363. Doug. 327. Per Duller, J. Per se it is a word of limitation, designating the quantity of interest. But at any rate, a devise to ar>d his heirs mail, is always an estate tail.
    
    2. That the testator did not devise an estate tail jointly inheritable by the male descendants of all the sons; but the sons were tenants in common of the premises, and on the death of either, his share descended to his male heirs, and on failure of such, reverted to the donor. That the first donees were tenants in common is evident from two considerations. First, our law allows of no joint tenancy, as it exists in England, Phelps v. Jepson, 1 Root, 48. And even in England it is considered as odious by the courts of chancery. Barker v. Giles, 2 P. Wins. 281, Secondly, the words “ equally to be divided,” in a will, create a tenancy in common. 2 Bl. Com. 193. 2 P. Wms. 282. 1 Ves. 167. If the first donees were tenants in common, it follows that the inheritance must be several from each to his heirs male; and for want thereof, there must be a reversion.
   Reeve, J.

This is a case stated for the purpose of taking the opinion of this court thereon.

Green Hungerford the elder, by his will, gave the demanded premises to his four sons, Green, Lemuel, Stephen and Nathaniel, to them and the male heirs of their bodies, creating in them an estate in tail male. And if any of his said sons should die before they came of age, bis part was given to the survivors, or their male heirs. Stephen did die before he came of age, and before the distribution of the estate of Green Hungerford the elder, by which means his share went to the surviving brothers. The lands in question were distributed to Green Hunger-ford the younger, who afterwards died and left no sons, but left several daughters, one of whom is married to the defendant, who is in possession of the' same ; and the plaintiffs, being the male heirs of the bodies of Le-= tnuel and Nathaniel, their fathers having deceased} have brought the present action of ejectment, on which this case is predicated, claiming that they are entitled to the lands under the will of Green Hungerford. The object of the parties is to learn whether the plaintiffs took any part of the estate by virtue of the will of their grandfather.

I am of opinion that they took nothing on the death, of Green the younger without male issue. The entailment to him was spent, and, of course, reverted to the heirs of Green Hungerford the elder; and in its state of reversion, became in those heirs a fee-simple, as it was in Green Hungerford; so that all the heirs, male and female, of Green Hungerford, are entitled to equal Shares of the lands so entailed to Green Hungerford the younger.

As to that part which was distributed to Stephen, oft his death it vested a fee-simple in the surviving brothersi One third thereof was to be distributed to Green the younger, and on his death, vested in his daughters; for this estate was not to go to the surviving brothers and the male heirs of their bodies, but to them or their male heirs; and, they all being alive, Stephen’s part vested irk them a fee-simple, and had any of them been dead, the estate would have vested a fee-simple in their male heirs; so that this part of the estate of Green the younger, which came from Stephen, descended to the daughters of Green the younger.

It is true, there are no words of inheritance in the devise over of Stephen's part; neither are there any words which would furnish evidence of the intent of the devisor to give a fee-simple according to English decisions. But I take it, that, according to a well esta-tablished series of decisions, when real property is devised in a will in Connecticut, the same absolute ownership is given as if it had been a legacy of personal property. The principle, both in the English, law and in ourfe, is, that the intention of the devisor shall govern. The difference arises not from any difference of prinei-pie; but, in Connecticut, we consider the gift of real property, without other words, as furnishing evidence that the devisor meant to convey a fee-simple; which, inteh* tion, in England, they do not consider as sufficiently manifested by such a devise. The plaintiffs in this ease claim the premises exclusively, contending that the will ¡of Green Hungerford the elder, gave to the devisees and their male issue cross remainders, so that the estate so devised cannot ever revert to- the heirs general of said Green the elder, while any of the male issue of any of the devisees are living. It is a universal rule of law, that cross remainders can never be created but by express words in the will, or by necessary implication. There is no pretence that cross remainders are created in this will by express words. In Order to constitute a cross remainder by necessary implication, there must appear in the will an intention that no person shall inherit any part of the estate, or take it by way of remainder, as long as any of the devisees, or any of their issue, to whom it is given, are alive. On this ground it has been determined in Dyer, 303. b. where an estate was given to divers persons, and the heirs of their bodies, and if they all die without issue of them, remainder to A. Now it is apparent that A. cannot take, unless they all cUe without issue; who, then, is to take the estate of one of them who should die without heirs of his body ? By necessary implication it must be the other devisees. So a devise to two daughters and their heirs, and if they die without issue, then to B. That is, if both die without issue, B. takes the land; but not until that time. If bne of them had died without issue, the other devisee must take it by necessary implication ; for B. could not.

There are no words in this will that manifest the least intention, that if one of the devisees should die without male heirs of his body, his heirs at law should not take his part, as long as there were any male heirs of the bodies of the other devisees. If this should appear, there woqld be more reason to say that there must be cross remainders; for, in thi§ case, if the plaintiffs, the male • heirs of the bodies of the other devisees, could not take, no person could. Upon examination of the authorities both where it has been decided that there were cross remainders, and where it has been decided that there were not, no one is to be found like this. No lawyer seems to have entertained an opinion that a cross remainder can arise by implication only, when on failure of the devisee’s issue, the estate is limited over to another. The presumption of law is, when a man devises an estate to two or more, to be divided betwixt them, and to the heirs of their bodies, that is, their respective heirs, that if such heirs should fail, the estate should revert to the heirs of the devisor. Every case to be found, arises where an ultimate remainder was limited, after failure of the issue of the devisees, to some person; and the inquiry has ever been, can this person to whom the remainder was limited, take the estate of one of the de-visees dying without issue ? or must he wait until all the devisees are dead without issue? The intention manifested in the will determines this. If it is clear that he cannot take the estate as long as any devisee or his issue are living, then such devisee or issue takes the share of the deceased devisee, by necessary implication.

In this opinion, the other judges severally concurred.  