
    APRIL TERM, 1771.
    Cromwell’s Lessee vs. Dulany, et al.
    
    Ejectment for a tract of land called Kinsey, lying sn Anne-Arundel county. Verdict for the plaintiff The following point was saved for the court’s opinion, to wit:
    rji¡)e tract of land called Kinsetj, was granted by pa* tent, bearing date the 13th February 1659, to Hugh Kinsey, and his heirs, in fee, containing 400 acres.
    
      Richard Johns, and Elizabeth his wife, daughter of Hugh Kinsey the grantee, conveyed by deed, bearing date the 2 0th March 1681, the land in question called Kinsey, to THlliam Cromwell., and his heirs, except that part which lav in the elder survey of Buck Cove.
    
    The plaintiff, to make out his title, produced the will and codicil, or additional will, of William Cromwell, dated the 19th of June 1680, wherein are the following devises: “Item. I will and bequeath my plantation jl “now' live, on, called Cromwell’s Adventure, with 100 ««acres more adjoining to it called Mascall’s Hope, to my “dear and loving wife Elizabeth Cromwell, during her life, «‘but when my son William shall come to the age of seventeen, my will is that he shall have the adjoining «‘land to my plantation, called Mascall’s Hope, and after «‘the- decease of my clear wife aforesaid, my w'ill is, that “lie enjoy my part of the plantation that is between my «‘brother John and me, known by the name of Cromwell’s Adventure-, the said land I leave to my son Tfil~ «4iam, and the lawful heirs of liis body, for ever, and to “continue in the name of Cromwell, and to the nearest of *(blood after the decease of all of the name of Cromwell.”
    
    «•Item. I will and bequeath unto my loving son, Tho“mas Cromwell, the tract of land that I have lying “upon the N. side of Curtiou’s Creek, being laid out for *-134 acres, known by the name of Hunting Quarter, “and the heirs of his body lawfully begotten for ever, •¡and so to return at his decease to the next heir of the «‘name as long as there is any alive, and after, to the near~ “est of blood; also my will is, that my son Thomas shall “have that tract of land that lieth in Whetstone Neck, “lying by David’s Pond, known by the name of • — -, “laid out for 100 acres, to him and his heirs for ever: “list my intent and meaning is, that none of the land be “sold by either of my sons, or their heirs, but to continue “in the name as long as there is any alive, and after, to the “nearest of blood.”
    
    The Codicil, or additional will, is as follows:— “My will is, that after my debts are paid, and my “wife has had her thirds, that my land and personal estate may be equally divided amongst my children} and my will is, that this above mentioned will, “dated the 19ih of Jane 1680, in Ml force and pow'er “and verity. I having more land than is mentioned ««above thought fit to make this addition, having more “children, that every one might have a share; — my mean*‘ing is, that my land may run to my heirs in the same «manner and form as it is mentioned in the above said «will”
    
    The will and codicil were proved on the 1st of May 1683. The land in dispute was purchased by the sa-d William Cromwell from Johns and wife, after the making of his said will, and before bis making the s§id codicil, to wit, on the 20th of March 1681.
    The Defendants objected that the said will and codicil passed to the devisee, William Cromwell, the particular lands mentioned in thé said will to be devised to him in tail; to the devisee Thomas Cromwell, (who was proved to be heir at law to the devisor,) the particular lands mentioned in the said will to be devised to him in, tail; and to the same William Cromwell, Thomas Cromwell, and one other son of the devisor, named Philip Cromwell, (born between the making of the said will and the time of making the said codicil,) the land in question in tail in common; and that by the death of Philip, (who was proved to have died without issue,) the part of Philip descended in fee to Thomas, which passed to George Jlshman, by the de\ ise of the said Thomas, in. fee, the said Thomas having by his will duly made, devised the said land in question to the said Jlshman in fee. And therefore that the plaintiff liad failed in shewing title as to two undivided third parts of the land in question, there still being issue in being of William, the devisee, under whom the defendants claim. Which point is saved for the opinion of the court; and the verdict which may be given in this cause for the plaintiff is agreed to be subject to the court’s opinion on the said point.
    The testator had issue three sons — Thomas the eldest, William and Philip. William, the son, entered into and possessed the particular lands devised him by the wili of his father in severalty, which were of more than the value of one-third part of the real estate of the testator.
    
      Thomas, the eldest son, under the-devise to himself, and in right of his brother Philip, possessed all the rest of the lands, and amongst others, was seised of the land in question called Kinsey, in severalty; and by his will in writing, dated 17th July 1723, devised the same to his brother George Jlshman, in fee. The devisee entered, and after holding possession sometime,, relinquished and surrendered the same to Thomas Cromwell, eldest son and heir at law of Thomas Cromwell, deceased.
    
      Thomas., the son, entered and conveyed by deed to his uncle William Cromwell, for his own life only. William Cromwell conveyed to the defendants, in fee. Thomas, the son, is dead without issue, and the lands in question. are claimed by Oliver Cromwell. lessor of the plaintiff^ the said Oliver being the eldest brother and heir at law 0[‘ Thomas Cromwell, junior. ■
    
    The point saved is upon the will and codicil of William Cromwell, the elder.
    
      Johnson, for the defendants,
    objected that the will and codicil of William Cromwell passed to William the particular lands mentioned in the will, to him in tail; to Tho~ mas in tail; and to the testators three sons William, Thomas and Philip, the land in dispute called Kinsey, in thirds, as tenants in tail in common,* and that on Philip's death, without issue, his third part descended in fee to Thomas, who devised it to Ashman in fee, and that Ashman is thereby entitled to one third part of Kinsey. He contended, that the defendants, (who claim under the issue of William, now living.) are entitled to one other third. That the lessor of the plaintiff. Oliver, as heir to Thomas, can only recover that third part of Kinsey devised to Thomas by William Cromwell.
    
    He cited Cro.Jac. 655 — No cross remainders can arise between more than two, from the incertainty, inconvenience and confusion, it would create — 4 Bac. Ab. 332-. Dyer, 303. Ilob. 33. Fitxgib. 30. Dyer, 333. b. % Jones, 172. Carter, ITS. 2 Black. 381. Freem. 4S4. 1 Vent. 224. 2 Show. 139. Vangh. 262. Savil, 92.
    
      Hall, for plaintiff.
    The tract of land called Kinsey was intaiied on Philip; on his death, without issue, it descended in tail, not in fee, to his eldest brother Thomas, to comply with the express words of the devisor. A court cannot construe cross remainders by implication between more than two, but devisor may create by express limitation, between as many as he pleases. Cited Dyer, SSS.'b. Chapman's case, Dyer, 303, Hob. 33. oir T. Jones, 172. Poll. 423, 431, to shake Cro. Jac. 655.
    
    
      Johnson, in reply.
    The question is on the codicil, and can only affect the land called Kinsey. By the word heirs the devisor meant all his children, and therefore will let in all three to part of Kinsey. There is a limitation to William, as well as to Thomas; if it is only to Thomas, yet it is in fee, and therefore devised by him to Ashman. There is no express limitation in the will. The blood will extend to collateral. The name will extend to strangers. Alienation is prohibited only as to his sons, and their heirs respectively, otherwise it would create a perpetuity, which the law abhors and would reject. The words of reference must not only create an estate in tail to Philip, 
      but also to cany over an estate in tail to Thomas. To whom is the limitation over? It cannot be by way of cross remainders, because to three persons. Must the reference Male to the devise, and the limitation to Thomas or William? They differ, are uncertain, therefore cannot refer to either. If Thomas took a reversion in fee on the death of Philip, the plaintiff has no title to any part. 1 Soil. Jib. 383, s. 1, 2. Co. Litt. 20. b. 3 Lev. 70. A partition by parol was good, fCo Lit. 169. a. Bro. Jib. tit. Partition, 123, b. s. 27, 32, J before the year 1725, when the statute of 29 Car. II, of frauds and perjuries, was first introduced into this province — Vide, Fin. Jib. tit. Partition, 231, pi. 8. Bac. Jib. tit. Tenants, 207, (in margin.) Co. Lit. 169, s. 250. The king’s grant shall be expounded most beneficially to the patentee — Tin. Jib. iit. Prerogative, 153,4. 2 Inst. 282, 496, 497. 6 Co. 5, 6. Montyn’s case. Vin. Jib. tit. Grant, 59, pi. 14, 15.
    The Provincial Court gave j udgment on the point saved, and verdict lor the Plaintiff. The defendants brought a writ of error to the Court of Appeals, and at Oct,her term 1772, the case was entered struck off, in that court.
     