
    Banister vers. Henderson.
    1765.
    ( Messrs. Dana & Gridley, for Banister.)
    
    (Messrs. Auchmuty & Otis, (
      
      )for Henderson.)
    
      Special Verdict.
    
    THOMAS BANISTER, Grandfather of the present Demandant, made his Will the 25 January, Anno 1708-9, and after divers Legacies follows:
    “ Item, after my just Debts and Funeral Charges "are paid, I give all my Houses, Warehouses, "Lands, Mortgages, Bills, Bonds, Money, Plate, "Debts, Wares, Merchandizes, both at Sea and "Land, as also all Books, Bedding, Household "Stuff, Horses, Cattle, and all that of Right any "Ways belongs and appertains to me, whether "named or not named, to my three Sons, Thomas, "Samuel and John, to be equally divided among "them in three equal Shares or Proportions, after "my Debts, Legacies and Funeral Charges are paid, "and if either of my three Sons die without Heirs "lawfully begotten in Wedlock, I will their Share or "Proportion to the surviving Sons or Son and their "Heirs forever. And the Reason why I make my "eldest Son Thomas but equal with his Brothers "Samuel and John, is for these Reasons; first, he "hath had a considerable Share already, Secondly, "I have given his Son £6500 if the Lord spare his "Life — I need add no more Reasons, but this — "they are all equally dear to me.”
    
      Cohabitation and universal Report are sufficient Evidence of a Marriage to establish the Legitimacy of the Demandant in a Real Action.
    Devise as follows : “ I give all my Houses, Warehouses,
    Lands, Mortgages, Money, Merchandise,” &c. &c. “ and all that of Right any Ways belongs and appertains to me,” “ to my three Sons, T., S., and J., to be equally divided among them in three equal Shares or Proportions, after my Debts, Legacies, and Funeral Expenses are paid; and if either of my three Sons die without Heirs lawfully begotten in Wedlock, I will their Share or Proportion to the surviving Sons or Son and their Heirs forever.” Also a Legacy of £500 previously given to a Daughter was in a certain Event “ to be paid to my three Sons or their Heirs, to be equally divided among them as I have willed the rest of my Estate to be divided among them or the Survivors of them.” Held, that the Brothers took an equal Tenancy in Common in Fee in the Real Estate, determinable on either’s dying without Issue in the Life of some other Son, and an executory Devise over of such Deceased’s Share to the Survivor or Survivors. Hutchinson. C. J., & Oliver, J., diff.
    
    
      Afterwards: “ I will to my beloved Wife Sarah "Banifter, said Pew for her Life, to order who shall "fit with her in it, and untill my Grandson Thomas "Banister is of Age of twenty-one Years, if he liv-"eth to have Male Heirs, I give it to him and to his Male Heirs lawfully begotten in Wedlock forever, "both Proprietorship and Pew, but if he dieth "without Male Heirs, I give it to the next Male "Heirs, and to descend to the next Male Heirs, with"out any Alienation forever.” ()
    
      If an Estate Tail with Cross Remainders, whether Conveyances by the Brothers with Collateral Warranty would not bind the Issue, quœre?
    Under the Province Charter no Appeal lies to the King in Council, in a Real Action.
    In settling the special Verdict, there were three Points the Parties could not agree on. One was, whether the present Demandant was legitimate; or, in other Words, whether Thomas and Frances Banister, Father and Mother of the Demandant, were legally married.
    Thomas and Frances Banister came over from England, and lived as Man and Wife, both in Old and New England.
    
      Mr. Auchmuty, again the Legitimacy of the Demandant.
    
    Had it been personal Estate, no Doubt common Report might have done to prove the Marriage, but here is a great Real Estate to be determined — shall common Fame be relied on in this Case?() No Certificate of the Marriage, the highest, the only legal Evidence. Had it been in a new Country where Records are not kept, there might have been some saint Colour for not producing a Certificate, but in England these Records are most strictly kept; for they know it is the only Evidence that will serve; the only Proof of the Legality of Marriage.
    
      
      Mr. Gridley.
    
    In Strictness of Law they ought to produce a Copy, and not a Certificate, though generally allowed. It has been said that a Certificate highest Evidence; but I say the Persons present at the Marriage is Evidence higher in its Nature — for how will that ever prove the Identity of the Persons? Cohabitation and universal Report have always been deemed sufficient Evidence, and I never in the Course of my Practice heard it denied before.
    
      Ch. Just.
    
    Have you no Authorities, Gentlemen?
    
      Mr. Gridley.
    
    There is no Authority that the Sun shines.
    
      Auchmuty.
    
    But there is Evidence.
    
      Ch. Just.
    
    How do Quakers ever prove Marriage except by Report?
    
      Mr. Auchmuty answered,
    Favour was shown them.
    
      Mr. Gridley.
    
    There shall be no bastardizing Issue after Death, is a Maxim of the Law.
    
      Auchmuty.
    
    A Bastard can’t be Heir till Death, and after Death Bastardy can’t be proved.
    
    
      Just. Russell
    
    only instanced in Quakers.
    
      Just. Lynde.
    
    I can’t think a Certificate alone is Evidence, or the best — that is greater which Mr. Gridley mentioned. Persons present at the Marriage can only prove the identical Persons. () Universal Report is, in my Opinion, sufficient Evidence, corroborated with other Circumstances, of the Marriage.
    
      Ch. Just.
    
    From Thomas and Frances Banister living in Old and New England as Man and Wife, I think it may well be inferred they were so. () I am sorry for Want of Authorities, and that this Point was not left to the Court as well as the Rest; for it is not properly a Matter of Fact.
    The second Point (Matter of a Person’s Death) was proved to Satisfaction.
    The third, whether there was an actual Entry into the demanded Premises was given (in Effect) up; for a Devise veils the Estate immediately in the Donee; it does not mean an actual Seizin in Law, but Right to Seizin.
    The Jury found the two Points in Favour of the Demandant.
    N. B. The next morning Ch. Just, produced the following Authority from Burn’s Ecclesiast. Law, vol. 2d, p. 36. () Tit. Marriage: "The Proof “ of Marriage may be by Witnesses who were pref-. “ ent at the Solemnization; by Cohabitation of the “Parties: by publick Fame and Report: by Con- * “ session of the married Persons themselves, although “ their Acknowledgment might be only to avoid the “ Punishment of Fornication, and by divers other “Circumstances which, if they amount to a half “ Proof, ought to be extended in Favour of Marri- “ age, rather than contrary to it. Wood, Civ. Law, “ 122.”
    
      Mr. Dana.
    
    The Demandant Banister demands by Force of the Will before me; his Pedigree is set forth in the special Verdict. I need not observe that the Intent of Testator is to be the fole Director for Construction of the Words, unless a new Estate is created contrary to Law. Now from the whole Tenor of the Will the Testator’s fole Aim appears to be the keeping his Estate in his Family; and this Intention of his is the general Key to the Understanding the Will, and, if attended to, will show in the cleared: Manner he designed an Estate Tail. He gives his Estate “ to his three Sons Thomas, Samuel and John, and if either of my three Sons &c., to the surviving Sons or Son; ” Samuel, (I can’t imagine how he came to take it in his Head) supposing he had a Fee, conveys away this Estate; but if this is an Estate Tail, it wipes away all Conveyances whatsoever; for Estates Tail are inalienable, except by Fine and Recovery, and that reduces it to Fee Simple.
    I am sensible when a Man gives all his Estate without any otherwise expressing his Intent, a Fee passes. 1 Salk. 239, Hopewell vs. Ackland. If the Testator had said no more than “I give all my Houses,” &c., they would have had a Fee: but his Intent through the whole Will being not only to take Care of his Sons, but their Posterity — and though he gives all “ to his three Sons Thomas, Samuel and John, to be equally divided among them, in three equal Shares or Proportions,” yet he afterwards explains himself—“If either die without Heirs,” and he then explains what Heirs, “Heirs lawfully begotten in Wedlock,” then goes on — “ I will their Share or Proportion to the surviving Sons or Son; ” and though the Words following, “ their Heirs forever,” are not aptly expressed, yet they shall not vitiate, for his Meaning is evident from all the Words taken together, and his Intent shall take Effect. Cites 1 Salk. 226, 227, Blisset vs. Cranwell, and 2 Vent. 285.
    As to his willing “ all to his three Sons to be equally divided among them,” there are numberless Authorities where the first Words give a Fee, by giving Lands to a Man and his Heirs forever, yet the after Words, explaining what Heirs he meant, make it a Tail. Nottingham vs. Fennings, 1 Salk. 233, as in our Case. Soulle vs. Gerrard, 1 Cro. 525. The after Expressions shew he meant Heirs lawfully begotten in Wedlock, and created a Tail: So in the Case last cited, the first Words shall be set aside, because contrary to his Intent. But full to our Point is the Case of Chadock vs. Cowley, 2 Cro. 695. Here-
    
      Mr. Otis.
    
    Are you not sensible, Sir, Lord Holt denies that Case to be Law? 
    
    
      Mr. Dana.
    
    No: But if he does, he is not insallible: But the Authorities mentioned are sufficient. Cites 3 Lev. 70, Parker vs. Thacker, and 2 Cro. 415, Webb vs. Hearing — a Case in Point. It appears by all these Authorities, una voce, that Devisors’ Intent shall govern, the Intent shall be collected from all the Words together; and though the same Words give a Fee, yet if other Words explain what Heirs he means, viz? “ Heirs of the Body,” or “ Heirs lawfully begotten in Wedlock,” it shall make a Tail; and in our Case it is a Tail with a Limitation over to “either of the Sons or Son,” which the Law calls Cross Remainders. The Intent of our Grandfather was so fixed to keep his Eilate in his Family, and to make a Tail, that he extends it even to Personal Estate, in which he is “ against the Rules of Law,” therefore we don’t demand it; but his Intent in this is strongly marked. “ To the surviving Sons or Son.” The Issue take, as much as if their Father had survived.
    Authorities to support the Cross Remainders. T. Jones, 172, Holmes vs. Meynel. Thomas Raymond, 452. This last Case is full in Point. “ As for Authorities, you cannot expect many in a Will; every Will Hands upon its own Legs.” Pollexsen, 425. (This Case enlarged upon, therefore look into it more especially.) Cross Remainders may be by Implication. Dyer, 303, Tit. Devise. T. Jones, 172.
    
      Ch. Just.
    
    But it must be express Implication. Is this fo?
    
      Dana.
    
    Yes. Vid. Dyer, 303. (This Authority much relied on.)
    
      Gridley.
    
    Dyer, Saunders, &c.; four of them of the same Opinion, that Cross Remainders may be between three. 1 Vent. 224, Cole vs. Levingston, By the whole Current of the Authorities, Cross Remainders may be between three; our Cafe is much clearer than is common in these Cases “To the surviving Sons or Son.”
    
      Ch. Just.
    
    
      “ And their Heirs forever.”
    
      Dana.
    
    I take it fo: And he has shown what Heirs he meant; “Heirs lawfully begotten in Wedloch. The Expression “ If either die,” is an Answer to your Honour.
    
      Ch. Just.
    
    Did the Testator intend a Tail to all of his Sons?
    
      
      Gridley.
    
    They took Tails with Cross Remainders over.
    
      Dana.
    
    On the Whole, the Testator’s fole Intent plainly appears to intail his Estate; his Words aptly enough express his Intent; and, as it is confident with the Rules of Law, it is the Business of the Law to fulfill that Intent.
    
      Mr. Auchmuty.
    
    This is a Case of great Expectation and great Importance. We differ very much and very materially. In order to elucidate any Point in a Will, the other Parts connected with and referred to it must all be considered. Mr. Dana says the Conveyances will not hurt, but will all be “wiped away” if this is an Estate Tail: I say not.
    
      Ch. Just.
    
    What do you suppose can bar an Estate Tail?
    
      Auchmuty.
    
    Conveyances with collateral Warranty.
    
      Gridley.
    
    Abolished long ago by Act of Parliament.
    
      Auchmuty.
    
    But first to the Tail. He has expressly given Money to go over as the other Estate : “ My Will is that said Legacy of £500 be equally “divided among my three Sons, Thomas, Samuel and “ John, with the Rest of my Estate as hereafter is men- “ tioned.” And afterwards, if certain Things happen, “ then I will the lost mentioned Sum of £500 
      " shall at her Death be paid back again to my 3 Sons “ or their Heirs, to be equally divided among them, as I “ have willed the Rest of my Estate to be divided among “ them or the Survivors of them.” Can his Intent  be supposed a Tail, when he devises Monies to go as his other Estate? He very expressly intails his Pew, very trifling in its Nature, in the strongest Terms, which shews he was not ignorant of apt Words to make a Tail.
    But to the Doctrine of Implication which the Gentlemen insist on. The Expressions to make a Tail must be strong and coercive. 2 Bac. 66. “No “ Words shall be construed to make a Tail without “plain Implication.” The Courts will never extend Implications, against Estates Fee, the noblest Estates, to Fee Tail, Estates of a much baser Nature. Wild’s Case, 6 Coke, 16 b. To make Estates Tail “the “ Intent ought to be manifest and certain, not ob- “ scure and doubtfull.” In the same Case: “ The In- “ tent, and not the Words only of the Devisor, ought “to make it an Estate Tail, then this Intent ought “ to be manifest and certain, and so expressed in the “Will;” and in our Case, as in Wild’s, no such Intent appears. They have cited no Authorities, but where the Implication has been so strong that there was no avoiding the Construction. Cro. Car. 368, Spirt vs. Bence. In this Case, where the Intent is not very clear, the Court will not construe against the Common Law. I remember in Croke, Walmsley said, Implication must be very strong to disinherit other Children, and to carry the Intent against the Rules of Descent. It is said also in 3d Mod., the Court will not puzzle themselves about the Intent of a Man who was perhaps sick and confused in his Senses at the Time of making the Will, but let it descend according to Law. 3 Mod. 104, Hanchetrs. Thelwal.—“ No Reason can be given why this Court “ should not construe Wills according to the Rules “ of the Common Law, where an Estate by Implica- “ tion is so uncertain; for when Men are sick, yet “have a disposing Power left, they usually write “Nonsense, and the Judges must rack their Brains “ to find out what is intended.”
    You are sensible when there are pecuniary Legacies to pay, prima facie a Fee. What an Estate foever they took, they had it charged with “ Funeral Charges, Debts and Legacies,” &c., many of which were very large. These and many other Things to be paid, no Personal Estate appears to be left wherewith to discharge them—none found in the Verdict; thus by Reason of these Charges, it converts the Estate into a Fee. 1 Lilly, 451, 2. To the same Point is 3 Rep. 21, Boraston's Case.
    
    
      Ch. Justice.
    
    The Books vary in that Point.
    
      Auchmuty.
    
    Where there is a Sum in Gross, that creates a Fee, but where a Sum is to be paid out of the Annual Profits, that do’n’t alter; that I take to be the Rule. Your Honours remember the Case Elivell & Pierson, (
      
      ) and the Case of Dudley vs. Dudley. () This Point (of Charge) had great Weight, and justly, in those Cases.
    The Words on which the Cross Remainders are founded are Fee Simple; for it is, in Case of Death and no Issue, to the Survivor and “their Heirs forever.” Had Banister the Grandfather intended a Tail, would he have used these Words,—especially when he so well knew the Words of Tail, as in the Case of the Pew?
    
      Ch. Just.
    
    “Heirs lawfully begotten in Wedlock ” — is that Tail or Fee ?
    
      Auchmuty.
    
    A Fee; for if a Man will depart from the Rules of Law, his Estate shall go according to the Rules of Descent. But if there is any Doubt in this Case, it is at End: It is clearly then with us, both by the Principles of Law and Equity. 1 Lilly, 454. No Intent shall go against the express Words of the Devisor; at this Rate from a Paisage or two inadvertently written, shall go against the general Tenor and plain Words of a Will. 2 Bac. 68. To construe the Intent against the Words is directly against all the Books. The Courts have always detected Cross Remainders among more than two; I would observe upon Raym’d that the Cases are different. In order to induce the Court to these Cross Remainders, Mr. Dana has observed that the Devisor’s whole Intention was to keep his Estate in the Family. This is Implication upon Implication which no Lawyer ever heard of. This Intent is got by Implication, and Cross Remainders are built on that Implication: But the most natural Implication is, that he never intended a Tail at all. According to these Gentlemen’s Way, you may add Implication on Implication in Infinitum, and we shall have no settled Rules of Law to go by. In all their Authorities, the Devise was only to two, with Cross Remainders over, but the Case they would extend it to, is among three; and the Reason is given—it is to avoid Confusion by splitting Estates into a thousand Parts, and to keep Peace among Men, from disputing about so many confused Cross Remainders: Besides, the Remainders cited in the Books are not founded upon Implication, but upon Certainty. Mr. Dana has laid, there may be Words which import a Fee, changed into a Tail by afterWords. Agreed; but no such Words here—nay, the after Words are, “ their Heirs forever,” a plain Fee. They can’t produce a single Authority where the first Words controul the last; here the last Words are Fee. If any Parts clash, I can’t help that; if a Testator will devise in such a Manner that there is no telling what Estate passes, it must pass according to Law. “ Where a certain Intent may be collected, it shall be “ construed according to that Intent, but where it is “ uncertain, it is void. The Intent of the Devisor “must be collected upon plain Words, and not “ upon Words which engender Confusion.” And Walmsley said, “ It is a good Way when the Words “ in a Will are ambiguous, so as the Intent may not “be colleded, to expound the Will according to “ the Law.” Cro. Eliz. 742, Taylor & Ux. vs. Sayer. Is not the Intent here, at best, uncertain ? Are the Devisor’s Words plain? Don’t his Words engender Confusion? Therefore by the last and the other Authorities, the Intent void, and the Rules of Descent must be observed.
    The last Thing I shall mention, having already said enough, is the several Deeds from Samuel, John and Frances, the Warrantys of which are collateral, and therefore bind the Issue. Lit. §§ 709, 716, 717, with Coke’s Commentary read at large. 1 Inst. 373 a, 375 b. 376 a. It is true there is a Statute about Warranties, but unless they produce, I shall not answer it.
    Upon the Whole, Estates Tail are never implied except when the Intent is obvious — never have been, at Home or here. The Courts are very cautious how they give the Construction of Tail to Words in a Will, especially such Words as these; and I believe never known to extend them to create Cross Remainders among three. I shall not recapitulate my Arguments, but only observe that it will cause the utmost Confusion thus to eject People out of Lands they have for so many years quietly enjoyed; and now to turn them out upon so strained a Construction of Words inadvertently dropped in a Man’s last Illness, would be as much against Justice and Equity, as Law and Common Sense.
    
      Mr. Otis.
    The present Question arises on this Clause of Mr. Banister’s Will: “ After my just Debts,” &c. In the Course of my Argument I shall examine what Estate the Brothers took, whether Tail or Fee. 2dly. If a Tail, whether with Cross Remainders over. 3dly. If Remainders over, whether the Remainders were in Tail or in Fee. 4thly. If a Tail with Cross Remainders in Tail, whether the Collateral Warranty will not bind the Issue.
    The Terms Fee Simple, Tail, general and special, Cross Remainders, Executory Devise are well known, but yet as this Cafe depends pretty much on having clear and precise Ideas of them, your Honours will pardon me, if to refresh our Memories, I just run over the several Definitions.
    (Mr. O. then gave the several Definitions of the above Terms, chiefly from Black. Anal, qd vid.)
    Cross Remainders, as commonly spoken of, mean implied Remainders. I will for the present allow a Tail, their Whole depending on their shewing implied Cross Remainders rationally and legally implied. Hobart, 29, 34, Counden vs. Clerke. Though the Intent of ye Devisor is justly called the Pole-Star of the Will, yet this is not the only Director; for this I cite the last Case. There are a Variety of Opinions on this Point, and that too among the most eminent Judges; some. paying an unlimited Obedience to the Testator’s Intention, and others as much flighting it. The true Medium, I take it, is laid down in this Cafe; “ the “Devise must be taken according to the Intent of “ the Party Devisor,” yet “ such Intent must be so “ express'd in the Will, that it may be certain to “ the Court, and not against Law.” Hobart, 32. All the Vagaries of a diseased Mind are not to be attended to; yet the rational and legal Intent of a Testator should be observ’d.
    (Relative to the Cross Remainders, Mr. O. cited the following Authorities:) Viner, Tit. Remainder; the whole of this Chap. Here “Cross Re“mainders shall not rise between 3, unless the “Words do very plainly express the Intent of “ the Devisor to be so; ” “ between 3 the Law “ will not endure Cross Remainders, by Reason of “the Confusion which will ensue.” “Two Cross “Remainders may well stand together, but three “ cannot well stand together; for that would make “ such Confusion as the Law abhors, and that was “ the Reason of the Judgment in the Case of Gilbert “ vs. Witty,
      
       which Pemberton, Ch. Just, said he took “ to be found Law. 2 Show. 139, Holmes vs. Meynill.” And per Holt, Ch. J. — “a Cross Remainder is an “ awkward Sort of a Thing; the Case of Holmes vs. “ Meynill 
       has prevail’d, and is not fit to be stirr’d “ now; ” “ and Powell, J. said that the Case never “went down with him, though affirmed on a Writ “ of Error, and he has heard learned People speak “ against it ”— (And goes on, and finishes the Chapter, and reads the whole of the Cases cited above by Viner and others.) Viner, Tit. Rem. M. p. 1, 2. Ibid. Tit. Devise L. p. 1-6. 10 Rep. Seymour’s Case, 1 Inst. 1 b, (Fee Sim.)
    
      From all these Authorities there may be such a Construction as is consiscent with the Rules of Law, if it be construed a Devise in Fee with an Executory Devise over. These Authorities are against them directly: “ 3 Cross Remainders cannot well stand together.” “ Between 3 the Law will not endure Cross Remainders,” and why? “’T would make such Confusion as the Law abhors : ” they are never favour’d in Law —• Holt much against them; they are never rais’d by Implication; “ Cross Remainders will not arise to more than 2 by Implication.” Viner, Tit. Rem. X. p. 4, Notes, cites 8 Mod. 260, Shaw vs. Weigh; T. Raym’d, 455, Holmes vs. Meynill. Besides from the plain Words, the whole Contexture and Tenor of this Will, ’tis plain he intended an Executory Devise over of the Deceased’s Share to ye Survivors or Survivor; certain he never intended a Tail with Cross Remainders over, — yet if there is the least Doubt, the Case is with us. But which is likeliest to get into the Head of a mere Layman — those Cross Remainders, which these Gentlemen contend for, which, after they have got beyond two, have puzzled the wisest Heads in Europe, or that of an Executory Devise over, on a Fee determinable on either of his 3 Sons dying without Issue ?
    
      Mr. Gridley.
    
    Do you think the Teslator had a clearer Idea of an Executory Devise than Cross Remainders ?
    
      Mr. Otis.
    
    Though there may be some Niceties in the Difference between Executory Devises and other Devises, yet the general Idea is much more likely to enter into a Layman’s Head, than that of Cross Remainders.
    ’Tis manifest from the Words of the Will he intended Equality among his Children, “ The Rea-“son why I make my Eldest Son hut equal with his “ other Brothers,”—“ They are all equally dear to me Would what these Gentlemen contend for be consistent with this intended Equality ? Would not ours? An equal Tenancy in Common being, as we say, devised in Fee, determinable on either dying without Issue in the Life of some other Son, and then an Executory Devise over of such deceased’s Share to the Survivor or Survivors.
    The Words in the Will do not make an Estate Tail. Hanchet vs. Thelwal, 3 Mod. 105, 6.
    In Order to make this Will agree with their Scheme, they are obliged to have Recourse to double Implications; first an Estate Tail is to be implied and then Cross Remainders. “An Estate “ by Implication was never thought of in a Deed, “nor in a Will, but in Cases of Mecessity.” Cases in the Time of L’d Talbot, 3, Glenorcky v. Bosville. One would think this Rule would be sufficient to put an End to their Claim. But if they will have Implication, what so strong for a Fee, as Charges of “ Debts and Legacies,” &c. This Implication of a Fee is consistent both with Law and Equity— theirs directly against both. “A. devises his Brother, “ Lands &c., and all his Personal Estate, defiring him “ to pay his Debts and Legacies,—a Fee passes.” 2 Vernon, 687, Ackland vs. Ackland. 3 Cro. 58. 2 Strange, 1175, Barker vs. Suretees. Thus there was not even an implied Tail in the three Brothers; next there were no Cross Remainders: The Gentlemen can’t find I believe, if they examine all the Books from William the Conqueror down to this Time, where there are Cross Remainders by Implication, without an express Tail. There are no Cross Remainders between 3 Brothers to be found in any of the Books, not even that of Dyer, 303. That was nothing but Talk. (Mr. O. here expatiates on the aforecited Passages of Viner.) But taking this Case of Dyer to have been adjudged (which is far from being certain), “ It seem’d to the Court,” &c.
    
      Mr. Gridley.
    
    
      Videbatur was always used by the Roman Judges, and is often in the Books.
    
      Mr. Otis.
    
    Let it be so: It is well known there are obiter Opinions, which are properly enough expressed by “ It seems,” yet are not to be relied on as Law. An obiter Opinion, I take it, is about a Medium between what the first Council in England say arguendo, and the solemn Judgments of the Court, after a full Hearing the Council. The Cafe of Dyer, 303, on which they bottom themselves is totally different from the Case at Bar; excepting this Case of Dyer it is settled that Cross Remainders shall not be among more than 2, and this Case being among 3, it falls to the Ground. 3 Leon. 115, Brian vs. Cawsen, as cited by Viner, Tit. Rem. X. p. 5. 1 Leon. 166. Gilbert vs. Witty, Cro. James, 657. Roll. Abr. 835. Viner, Tit. Devise, Let. K. 4 Mod. 282. Cro. Jam. 590, Pells vs. Brown. (These Authorities cited by Mr. O. to shew the Brothers took by Executory Devise.)
    I shall now show, if all the foregoing Points were against us, yet the Collateral Warranty binds the Issue, and therefore the present Demandant must fail; but before I enter on this, the Deeds must be looked into, and your Honours will there fee how the several Warranties descend. It is incumbent upon me to shew that Collateral Warranty is a Bar, without Assetts, notwithstanding the Statute of Ann. 10 Rep. 95 b, Edward Seymour’s Case. Lineal Warranty bars with Assetts, Collateral Warranty without; it may appear hard, but if the Reason is attended to, it will be cleared; it is for the Safety of Men’s Estates, and that People should not be defrauded of what they bonâ fide bought, many Years after Purchase. And there are other Artificial Reasons, as no Man is presumed to difinherit his own Blood without leaving him greater Advancement, &c. 1 Inst. 373 a, b, 375 b, 376 a, &c. Viner, Tit. Voucher, U. b. 2, to U. b. 6. Holt, Cb. J., said, “ That the true Reason of Collateral " Warranty was the Security of Purchafers, and for " their Encouragement; as also for the establishing " and settling of such as were in by Title or Descent 44 cast, and this was the only Security such Persons " could have at Common Law; and because the “Estates of such Persons as are in by Title, are " much favoured in Law, these Covenants that were " for strengthening them were favoured likewise.” Same Tit. U. b. 5. 12 Mod. 512. The Collateral Warranties which are made void against the Heir are those made by any Ancestor who has no 
      
      Estate of Inheritance in Possession of the Lands. 4 & 5 Ann, ch. 16. Now, according to their own Supposition and the Special Verdict, the Ancestor making this Collateral Warranty had an Estate of Inheritance in Possession, and therefore does not come within this Statute; but I deny the Statute of Ann to extend here.
    The Common Law and Policy of England have been, this 4 or 500 Years, tired of these intailed Estates; and therefore every legal Method has been prosecuted for their Suppression. Many have been the ill Effects felt both by State and Individuals, in Conveyance of these Estates; therefore so far from being favoured they have ever been discountenanced; and surely never was such an Estate as is here contended for, savoured — big with the greatest Confusion and Injustice—inconsistent both with Law and Common Sense. I therefore submit it to your Honours’ Judgment, not doubting that Judgment will be rendered according to Law.
    
      Mr. Gridley.
    
    “ After my just Debts, &c., I give all,” &c. “If either,” &c., “ to the surviving Sons or Son.” The Question is, whether there was a Tenancy in Common in Fee, with an Executory Devise over, or a Tail with Cross Remainders: On the other Side they say, the first Words are Fee, and the after Clause, “ If either die without Issue,” makes an Executory Devise over: We say, if there were no more Words, a Fee, but the after Words make a Tail, and the last, Cross Remainders. When we read a Will, we aim at the Devisor’s Intent; we aim at the general governing Idea of the Testator’s Mind. If we enter into the Will, you will find, that the grand and sole Object of the Devisor was the Emolument of his Posterity, and the Perpetuity of his Estate in his Family. Let us fee, if we can’t make such a System of Estate as will be consistent with the Law, and enforce the Testator’s Intent; if it is possible it shall be done: But these Cross Remainders between 3 frighten the Gentlemen; no such Thing in the Books; no such Cross Remainders by Implication: We will fee. The first Words, “ All, &c.” a Fee, the Words last, a Tail—as for “Heirs,” the other Words shew what he means. “ Heirs lawfully begotten in Wedlock,” The Gentlemen talk of Implication upon Implication, and Implication upon that again; the Words by which the Tail is made are implied, but a necessary Implication. Heirs in general make a Fee, but he shews what Heirs he intended; “ If either die, then to the surviving Sons or Son,” this makes the Cross Remainders. The Sons Thomas, Samuel and John took Tails with Cross Remainders over, each upon the other: Upon John’s Death, Thomas and Samuel were jointly seized of John’s Part; upon Thomas’ dying, Samuel and Thomas’ Issue were seized together; and upon Samuel’s Death, the Whole remained to the Father of the present Demandant. This was the Intent of the Testator, that the Brothers took Tails with Remainders, one upon the other. It is the Business of the Law to explain the Pregnancy of Expression, and when this Pregnancy is drawn out, this is the mighty Confusion, this is the terrible Bugbear. The Lawyers who talk of the Abhorrence of the Law, the Confusion, the Awkwardness, and I don’t know what all, of Cross Remainders, were asleep, I believe, and had their Heads muffled up in Napkins.
    
      Mr. Auchmuty.
    
    I don’t understand such Reflections.
    
      Mr. Gridley.
    
    I meant no Reflection on you, Sir.
    
      Mr. Otis.
    
    Mr. Auchmuty, I did not take Mr. Gridley intended to reflect upon us, but on all the Judges of England.
    
      Mr. Gridley.
    
    What mighty Difficulty to former People I can’t tell; ’tis very plain now. Cross Remainders may be among 2; why not 3? If John dies, then to Thomas and Samuel; if Thomas dies, then to Samuel; each have a Tail with a Remainder expect the upon the Death of the others dying without Issue. A Fee can’t be limited upon a Fee — they strived hard for it in the Case of Devises, but then it was only for Years. “All the Candles burning at once,” as one of the Judges  expressed it. Chadock vs. Cowley, Cro. Jam. 695. Dyer, 303. Here is one Acre to A. and the Heirs Male of his Body, another to B. and another to C. in like Manner. “ And if they all die without Issue of their or “ any of their Bodies or either of them,” Remainder over; here are Cross Remainders among all the 3 Sons. Dyer, 303. The Darkness is here dissipated from Cross Remainders, the Words, dying without Issue ” are directly against Executory Devises.
    
    Mr. Auchmuty has endeavour’d from several Charges to prove it a Fee. The Manner of Construction in Law is, reddendo Singula Singulis; every Thing must be rendered according to its Nature. An ample personal Estate was left — real shall never be taken in such Case. The Charge was personal, and not upon the Land: Besides, it does not appear that there was no personal Estate left; the Special Verdict ought to have set forth, there was no personal Estate left; this is not done, so that’s at an End.
    
    It has been said, Devisor designed Equality—he did do Equality—all had Tails; the Event as to the Remainders was left to Chance.
    I won’t produce 20 Authorities where 1 is necessary; here have been numerous Authorities cited, to what Purpose I know not, unless Show.
    
    
      Mr. Otis.
    
    You must allow Children a little Oftentation.
    
      Mr. Gridley.
    
    I won’t say the Case of Gilbert & Witty is not Law, but I will produce Jones to show wherein it is wrong; Dodridge was certainly wrong, when he said, no Cross Remainders among 3. 7 Edward 6 (Year Book). Dodridge ought to have read this before he pronounced. It appears by this Book that Dodridge was wrong, on whom the Gentlemen so much rely: ’Tis true I have not produced the Year Book, but I have produced Hobart, whom I can trust, for he was an Oracle of the Law. 2 Jones, 172, Holmes vs. Meynill. Pemberton too is with us, one of the Miracles of Mankind; he was not afraid of the Reveries of Sick Men; was not afraid of plaguing his Mind in finding out the Meaning of diseased Minds: He used the Affiduity becoming a Judge to get the Devisor’s Intent, and when he had found it, he had it fulfilled. ’Tis not the Part of Judges to stifle, but to enforce the Devisor’s Intent; you had Cross Remainders among 3 at the Common Law, and Dyer, 303, has carried them as far as 4. Mr. Otis says there was no Judgment in this Case. Dyer seldom uses more than “it seems;” this Mr. Otis knew: It is very Arrange Dodridge should say, no Cross Remainders between 3, when here is 4, and I have shewn the Year Book; Dyer full with us, the greatest Judge that ever fat in the King’s Bench, — as great in Law as Sir Isaac Newton in Mathematicks and Philosophy. Pollexsen, 413. So, taking these Authorities, we have 5 Judges against 3, Dodridge and other obscure Names. Skinner Rep. 17. Ld. Raym’d, Meynill's Case. I have looked over all their Author ities, and these few I have selected as to the Point, and have observed on them what is necessary.
    The Intent of the Testator is the only Rule, the only Director, whether that Intent is got by Implication or otherwise: His Intent can’t be fulfilled without Cross Remainders, and if Cross Remainders are good among 2, certainly among 3; they have been carried to 3, and even to 4 according to the Authorities cited; therefore as his Intent is with us, and the Law is with us, your Honours will give Judgment accordingly.
    N. B. Mr. Gridley made an Excuse for not speaking to the Collateral Warranty, as it was a Point he did not think would be started, and therefore begged time to look into the Books. This Request was granted.
    Afterwards Mr. Gridley spoke to this Point, of Collateral Warranty, and, as I heard, so conclusively that the Council for the Tenants waived the Matter.
    
    
      
      (1) James Otis’s will, made many years after, during the unfortunate condition of mental derangement in which his life ended, commences as follows: “ In the name of God, Amen. — I, James Otis, being in no manner of fear of Death, though called by some the King of Terrors, and by old Bannister in his will, a sergeant—” Tudor’s Life of Otis, p. 483. And in the will of Thomas Banister, the testator in this case, of which a copy is on file, appears the following : — “ When Thou Jehovah shall send Thy inexorable serjeant Death to arrest this body, and carry it to that dark prison of the grave,” &c.
      -- “ Had I but time, (as this fell sergeant, Death
      Is strict in his arrest,)”
      Hamlet, Act V., Sc. 2,
      
    
    
      
      (2) The special verdict further found that the three brothers entered under the provisions of the will aforesaid, that Samuel and John (who soon after died without issue) made a letter of attorney to Thomas, who conveyed the premises to Giles Dyer, who reconveyed to Thomas, who conveyed again to Dyer one moiety of the premises. Thomas died, leaving the demandant his son and other children. Dyer then made a deed of the whole of the premises to Samuel, who afterwards, together with Frances, the widow of Thomas and mother of demandant, conveyed the premises to Peter Luce, who conveyed to John Henderson, father of the tenant, after which Samuel died without issue. If the demandant was entitled to recover, the jury found for him possession of the whole, or one moiety, or any letter part to which the Court decided that he was entitled. “ But if he be intitled to no part thereof,” then for the tenant costs. That part of the case between the statement of the devise and Mr. Dana’s argument is reported in the MS. as of the previous term, after the case, Rex v. Pourksdorff. For convenience the case is printed as a whole.
    
    
      
      (3) See Means v. Welles, 12 Met. 361, Hubbard, J.— “ It was argued that mere cohabitation was not a species of evidence sufficient to sustain a writ of right. But we are aware of no distinction as to the amount of proof necessary to establish a marriage in any one case more than another, where marriage is a fast to be proved in order to sustain an action.”
    
    
      
       Qu. if Cases in Time of Holt, 287, would not have been pertinent.
    
    
      
      (4) S. P. Commonwealth v. Norcrofs, 9 Mass. 492. Ellis v. Ellis, 11 Mass. 92.
    
    
      
      (5) S. P. Newburyport v. Boothbay, 9 Mass. 414. Means v. Welles, 12 Met. 361. Aliter in criminal proceedings before St. 1841, e. 20, Commonwealth v. Littlejohn. 15 Mass. 163.
    
    
      
      (6) Burn’s Eccl. Law, Marriage, X. 5.
      
    
    
      
       Vide 3 Mod. 45, Reeves v. Winnington.
      
    
    
      
       Qu. whether 8 Rep. 95 b, would not have been a good Authority to this Point.
    
    
      
       Qu. if Mr. Otis was not mistaken, and that he blended it with the Case of Hearn v. Allen, 3 Croke, 57, which Ld. Holt seems to doubt of in the Case of Nottingham v. Fennings, 1 Ld. Raym. 570? and qu. if that Doubt of Lord Holt does not make against Mr. Otis ?
    
    
      
       Qu if the Case Nottingham vs. Jennings, 1 Ld. Raym. 570, would not be in Favour of the Demandant.
    
    
      
       Qu. Might not this be Evidence of his strong Intent, as Mr. Dana hinted ?
    
    
      
       2u. if any Eftate but an Eftate for Life can be enlarged by any Charge. For it is Law that “ no Eftate ihall pafs by Implication of Law againft the exprefs Limitation of the Party, altho’ the Limitation is void.” 3 Rep. 55 b, and fo adjudged in the Cafe of Hog vs. Croffe, Cro. Eliz. 254. Ideo —
      Qu. whether the Case of Elwell (cited above) was not adjudged against Law.
    
    
      
      (7) Ante, p. 43.
    
    
      
      (8) Ante, p. 12.
      
    
    
      
       2 Croke, 655.
    
    
      
       2 Show. 136.
    
    
      
      
        Alias, Cases in Law and Equity.
    
    
      
      
        Twifden.
      
    
    
      
       It is said (in Carth. 310) that “ It is a certain Rule that a Will shall never operate by Way of Executory Devise, if it may take Effect by Way of Remainder.” Qu. if this Authority would have been impertinent.
    
    
      
      
        Qu. if personal Estate is not found in the Verdict, whether it is to be presumed. Vid. 3 Mod. 45, 46.
    
    
      
       Hob. Rep. 34. “ A Devise to 3 Brothers in Tail, and that one shall be Heir to the other, this makes Cross Remainders.” Hob. 34.
    
    
      
       Holt and Powell.
    
    
      
      
        Sed quœre, and fee Dr. Sullivan’s Lect. on the Laws of England, 182, 3, and qu. if ye Act of Parliament extends, or is binding here.
      Qu. If 2 Strange, 969, 996, might not with Propriety have been produced in Favour of the Tenants. Vid. Stephen v. Stephen, Chan. Cases, 168, 169, &c.; 1 Ld. Raym’d, 208. Vid. 2 Wilson’s Rep. 88 b. Driver v. Standring.
      
    
   The Court

defiring that a brief State of the Cafe, Banister vs. Henderson might be given in by the Council on both Sides, the following States were delivered to the Court.

The State of the Case by the Council for the Tenant.

Banister’s Case.

Whatever Estate the Devisees took, was by Implication—not by express Devise.

Implication must be necessary, and not barely possible. 2 Bac. 66 (G). 6 Co. 17. Cro. Car. 368.

Intent to be collected from the whole Will— therefore the Devises to the Grandson and the Daughter, as well as joining real and personal Estate must be considered. Also the Words in Remainder in the Clause now in Dispute.

From all which it appears, the Testator never meant to Entail; the Distinction between the Devise of the Pew and the Rest of the Estate proves the same Point.

The Remainder being an Express Estate in Fee, argues that the first Estate was also intended in Fee.

The Testator meant to convey an equal Tenancy in Common, in Fee, determinable on either’s dying without Issue in the Life of some other Son, and an Executory Devise over, of such Deceased’s Share to the Survivor or Survivors.

The Estate being subjected to the Payment of Debts and Legacies, is equal to being subject to Payment of certain Sums; and the Estate being implied makes a Fee Simple. 2 Vern. 687. 1 Lill. 451, 452. 3 Co. 19, Boraston's Case. 1 Cas. Abr. Equ. 176, 9, 10, 12.

But if doubtfull, then Judgment must be for us, in Law and Equity; Law, that the Demandant clearly prove his Writ, and Cro. Eliz. 743 — what Walmsley said; Equity—fairly purchased, long possessed, the Purchase Money used to support the Family.

To prove it no Tail, 3 Mod. 104; 3 Cro. 57; 2 Strange, 1172.

Granting for Argument Sake, that the first Words create an Estate Tail by Implication, yet the Remainders not cross. Hob. 34. Vin. Tit. Devise, X. pi. 1, and Notes. Vin. Remainder, per tot; 2 Cro. 655. 2 Show. 139. 8 Mod. 260.

When John died, Tom. and Sam., expressly by the Devise over, became Jointenants in Fee of his Part; and on Tom.’s Death, all his Part of John’s Third that was undisposed went to Sam., by Survivorship, and never can go back as a Remainder to the Heirs of Tom.

If Jointenants in Fee, there cannot be Cross Remainders of that joint Estate, for that would be limiting a Fee on a Fee at Large.

The Collateral Warranty binds. 1 Inst. §§ 709, 716. 1 Co. 63. 10 Co. 97. Vin. Tit. Voucher, U. b. pl. 5, U. b. 6, pi. 1 & 2, & Notes. W. b. pi. 5. W. b. 4. Notes on pi. 2. U. b. 3, pi. 25, & Notes. Voucher, X. a. 2, pl. 5, U. b. 3, pl. 3. C. b. pl. 3, & Notes.

What is the Distinction between a Collateral and Lineal Warranty is proved by 1 Inst. §§ 704, 704, & 717.

By the Council for the Demandant.

Case of Banister vs. Henderson.

Mr. Thomas Banister by his last Will devised (among other Things) £500 to his Daughter Mary Banister; but if she did not live to have Issue, then to be paid to his three Sons to be equally divided amongst them, as he had willed the Rest of his Estate to be divided among them, or the Survivors of them.

Item. He gave all his Houses, Lands, Mortgages, Bills, Bonds, Money, Plate, Debts, Merchandizes, both at Sea and Land; as also all Books, Bedding, Household Stuff, Horses, Cattle, and all that of Right any ways belonged or appertained to him whether named or not named to his three Sons Thomas, Samuel, and John; to be equally divided amongst them; and if either of his three Sons die without Heirs lawfully begotten in Wedlock, he willed their Share to the surviving Sons or Son, and their Heirs forever.

By this Devife the three Sons took an Eftate in Common in Tail general in the Lands &c. devised, with Cross Remainders in Tail among them of each other’s Shares.

First. By the Devise of all his Houses and Lands &c., and all that of Right anyways belonged to him, whether named or not named, a Fee would have passed to his three Sons by Force of the Words taken by themselves. Vid. 1 Salk. 239, Hopewell vs. Ackland, where Alleyn, 28, Wheeler’s Case, and 2 Vent. 285, Willow’s Case, are rely’d on; for the Words are as strong and comprehensive as those made Use of in those Cases, and mull comprehend all his Estate, which alone would pass a Fee; and as by Devise of all his Lands an Estate for Life passed, the following Words, unless they comprehend his Estate in those Lands, mull be useless.

Secondly. The following Words, “ equally to be divided among them,” make them Tenants in Common of the Whole. Vid. x Salk. 226, Blisset vs. Cranwell.

Thirdly. By the subsequent Words — if either of his three Sons die without Heirs lawfully begotten in Wedlock, he wills their Share to the surviving Sons or Son, and to their Heirs forever—an Estate Tail general is created of their several Shares; for this shews the Intent of the Teslator to be Heirs of their Bodies, by necessary Implication; sw that Heirs here signifies the same as Issue; for they could not die without Heirs, living their Brother. Vid. Cro. James, 415, 416, Webb vs. Hearing. Same, 448, King vs. Rumball 3 Lev. 70, Parker vs. Thacker, 1 Salk. 233, Nottingham vs. Fennings. Cro. James, 695, Chadock vs. Cowley.

Fourthly. By these Words — if either of his three Sons die without Heirs lawfully begotten in Wedlock, he willed their Share to surviving Sons or Son, and their Heirs forever — Cross Remainders in Tail are created among them of their several Shares; for the Words “if either of them,” &c. make Cross Remainders, express, and differs the Case from that of Gilbert & Witty. In 1 Vent. 224, Cole vs. Levingston, per Hale, C. F. Vid. also Dyer, 303. Cross Remainders express among four, exactly agreeing with the present Case. 2 Jones, 172, Holmes vs. Meynill, a Cross Remainder by Implication— whereas this express, and consequently a much stronger Case.

In both the said Cases the Cross Remainders veiled in Tail, as well as the first Estate of each in their several Shares; and by the same Reason and Law, they shall veil in Tail in the present Case; so that the Estate shall not revert till all the Sons are dead without Issue, and the whole Estate Tail entirely spent. And this is corroborated by the Limitation to the surviving Son as well as Sons, which plainly shows the Intent of the Teilator was, that all these Remainders to each of the Sons, of the other’s Shares, should veil in Tail immediately by the Devise; and this is perfectly agreeable to the Refolution in the above Cases, particularly that in Dyer, which corresponds exactly to it, and is full in Point; and this Construction renders the whole Devise in every it perfectly agreeable to evident Design and Intention of the Testator.

Upon the Whole, the Devise then as was observed at first will stand thus: To Thomas, Samuel and John, in Common in Tail general, with Cross Remainders in Tail to each of the others' Shares; so that when John died first without Issue, his Estate was entirely spent, and the Remainder of his Share came equally to Thomas and Samuel in Tail; when Thomas died leaving Issue, his Moiety descended to the Heirs of his Body in Tail, and also the Remainder in Tail of John’s Moiety, which was veiled in Thomas, descended upon the Death of Thomas to the Heirs of his Body in Tail; so that when Samuel died without Issue, his Moiety also came to the Issue of Thomas in Tail; and no Part of the said Estate so devised can revert to the Heirs of the Devisor till all the Issue of the Body of Thomas is entirely spent.

(Another State of Banister’s Case which I received from Chief Justice Hutchinson, together with the foregoing State of that Case, by the Demandant’s Council.)

Case of Banister vs. Henderson.

The Testator devises all his Houses, Lands, &c., and all that of Right anyways belonged or appertained to him, whether named or not named, to his three Sons Thomas, Samuel and John, to be equally divided among them; and if either of his three Sons die without Heirs lawfully begotten in Wedlock, he willed their Share to the surviving Sons or Son, and their Heirs forever.

It was argued for the Defendant, that this was an Executory Devise, &c.

In Answer to which, it was urged for the Plaintiff, that it is a settled and certain Rule of Law, that a Will shall never operate by Way of Executory Devise, if it might take Effect by Way of Remainder, viz., if there is a particular Estate sufficient to support it. Vid. Carthew, 310, in the Case of Reeve vs. Long; 2 Saund. 380, Purefoy vs. Rogers, at the latter End of the Case; 2 Bacon, 72, where these and several other Cases are cited.

By this Devise (as we shall shew clearly) an Estate Tail was created in the three Sons, of their several Shares; which is a particular Estate sufficient to support a Remainder; and therefore by the Rule, the Limitation shall take Effect. by Way of Remainder, and cannot be construed an Executory Devise.

It is insistead for the Plaintiff, that, by this Devise, the three Sons took an Estate in Common in Tail general in the Lands devised, with Cross Remainders in Tail among them of each other’s Shares.

To shew this, they observe—

First. By Devise of all his Land, and all that of Right anyways belonged to him, &c., a Fee would have passed to the three Sons, by Force of these Words taken by themselves; for this they rely on the Case of Hopewell vs. Ackland, 1 Salk. 239, where Alleyn, 28, Wheeler's Case, and 2 Vent. 235, Willow’s Case, are rely’d on; for these Words are as full and strong as those made Use of in these Cases, and must comprehend all his Estate.

Secondly. The following Words, “equally to be divided among them,” make them Tenants in Common; for which Vid. 1 Salk. 226, Blisset vs. Cranwell.

Thirdly. By the subsequent Words — if either of his three Sons die without Heirs lawfully begotten in Wedlock, he wills their Share to the surviving Sons or Son, and their Heirs for ever. By the first Part of them, an Estate in Tail general is created of their several Shares: For this shows the Intent of the Testator to be, Heirs of their Bodies; so that Heirs here signifies the same as Issue, for neither could die without Heirs in the general Sense of the Word, living his Brothers. For this they rely on Cro. James, 415, 416, Webb vs. Hearing; Same, 448, King vs. Rumball; Same, 695, Chaddock vs. Cowley; 3 Lev. 70, Parker vs. Thacker; 1 Salk. 233, Nottingham’s Case.

N. B. By the above Cases of Webb of Hearing, and Chaddock of Cowley, and their Analogy to the present, it appears that this was not a contingent Estate, but took Place and veiled immediately by the Devise.

Fourthly. By the same Words, also (the latter Part of them), Cross Remainders are created among the three Sons, of their several Shares. These Words, “ if either of them,” &c., make Cross Remainders express, (1 Vent. 224, Cole vs. Livingston) and is not by Implication, but as determinate as if Cross Remainders had been drawn out at Length. And this differs the Case from that of Gilbert & Witty, produced on the other Side. Vid. also, Dyer 303, Crofs Remainders in Tail among 4, a Case in Point. Also 2 Jones, 172, Holmes & Meynill, where the Case of Gilbert & Witty is questioned. Vid. Hobart, 34, which Case, and that in Dyer, must have been overlooked by Justice Dodridge. He said, in Gilbert & Witty, that it would not be found in any Book that Cross Remainders could be between three.

It appears, also, by the Limitation being to the surviving Son as well as Sons, that it was the Intent of the Testator that the last surviving Son, the other two dying without Issue, should take the Whole. This could not take Effect by any Construction, but the above of Cross Remainders in Tail executed; but upon this Construction, no Part of the Estate could revert to the right Heirs of the Devisor, until all the Sons were dead without Issue, and the whole Estate Tail in each spent, according to the above Case in Dyer.

Upon the Whole, therefore, the Devise stands thus: To Thomas, Samuel and John in Common, in Tail general; and if Thomas die without Issue, the Remainder of his Share to Samuel and John in Tail; and if Samuel dies without Issue, the Remainder of his Share to Thomas and John in Tail; and if John dies without Issue, the Remainder of his Share to Thomas and Samuel in Tail.

So that when John died without Issue, his Share came to Thomas and Samuel in equal Moieties in Tail, with Cross Remainders in Tail between them of each other’s Shares; and when Thomas died leaving Issue, his Share, and his Moiety of John’s Share, came to his Issue in Tail; and when Samuel died without Issue, his Share, and his Moiety of John’s Share, came to the Issue of Thomas in Tail.

The last Words, “ then to the surviving Sons or Son, and their Heirs for ever,” could not possibly make a Jointenancy in Fee, is Case of Death without Issue. The Survivor was to have the Whole, which might have been prevented by severing the Jointenancy; so that, to answer the Testator’s Intent, a Remainder in Tail veiled in Thomas upon Samuel’s Estate in Tail in this Moiety; and so vice versa, and upon Samuel’s Death, this Remainder came veiled in Possession.

Judgment was afterwards rendered at Worcester Court for the Tenants; By the Opinion of Lynde, Cushing & Russell: Chief Justice & Oliver full in Favour of the Demandant. () 
      
       By the first: and last Cases in Cro. James, it appears it was not a Contingent Estate, but took Place immediately by the Devise.
     
      
       Qu. if 2 Black. Comment, ch. 20, pp. 302, 303, and ch. 23, pp. 381, 382, would have been impertinent in this Case.
     
      
      (9) It is to be regretted that we have no means of ascertaining conclusively on what grounds this decision was given. The three points raised are briefly as follows : 1. Whether the words of the will created an estate tail, or a see with executory devises; 2. If an estate tail, whether cross remainders can he created by implication among more than two; 3. Whether collateral warranty will not bind the issue. Quincy states that the last point was given up by the tenant’s counsel; and although it was inserted in his “ state of the case,” yet its not being mentioned in the others, would seem to show that it was, in effect, abandoned. As to the second point, it is true that most of the authorities at that day leaned strongly against the establishment of crost remainders among more than two. See 3 Bl. Com. 381, 2, cited by Quincy supra. But upon this ground alone, it is difficult to fee why the demandant should not have had judgment for one third of the premises. And it was soon after established that cross remainders might arise among any number. Cowp. 780. 2 East, 36. Hall v. Prieft, 6 Gray, 18, in which laft cafe they were eftabliihed among eight. From thefe coniiderations, it feems to us more probable that the deciiion was given upon the firft point; and we have, accordingly, fo ftated it in the marginal note.
      But whether the point of collateral warranty was not well taken, queere. That the reporter fo coniidered it, appears from his note, ante, 145, and his citation, fupra, of 3 Bl. Com. 303, where it is laid down that collateral warranty is ftill a bar, “ notwithftanding the ftatute of Queen Anne, if made by tenant in tail in poffeffion.”
      Among the law papers of John Adams, for access to which we are indebted to the kindness of Hon. Charles Francis Adams, we find a copy of an opinion given in 1745, by the diftinguilhed lawyer, John Read, upon a case which had arisen upon the same clause in the will, and in which some of the same questions were involved. That opinion is printed below. The cafe resulted in favor of the tenants; but it will be feen that Mr. Read’s opinion coincided with that of the minority of the Court in Banister v. Henderson, viz., that the devise created an estate tail with cross remainders. It appears, also, that the point was raised which was afterwards decided in Baker v. Mattocks (ante, p. 69), viz., the partibility of estates tail; and that the opinion of Mr. Read, and alfo, it would feem, of Mr. Pratt (afterwards Chief Juftice of New York), was in favor of the partibility, coinciding with that of the minority of the Court in Baker v. Mattocks, and with that of Judge Trow-bridge. See ante, p. 74, note.
      “ Mr. Banifter's Cafe v. Nat. Cunningham.
      
      1692. The Province Law, p. 3, enacteth that any Man Seized in Fee Simple of Land in this Province may dispose of it at Pleasure by Deed or Will; or it shall be Subject to a Division with his Personal Estate, vizt, a double Portion to his eldest Son, and equal Shares to the Rest of his Children.
      1708. Mr. Thomas Banister devised, among other Things, £500 to his Daughter, Mary Banister, but if she did not live to have Issue, then to be paid to his 3 Sons, to be equally divided among them, as he had willed the Rest of his Estate to be divided among them or the Survivor of them.”
      
        Item. He all his Houses, Ware-houses, Lands, Mortgages, Bills, Bonds, Money, Plate, Debts, Wares, Merchandizes, at and Land, as also all Books, Bedding, Household Stuff, Horses, Cattle, and all that of Right any ways belonged or appertained to him, ’whether named or not named, to his Three Sons, Thomas, Samuel and John, to be equally divided among them; and if Either of his Three Sons dye ’without Heirs lawfully begotten in Wedlock, he voilled their Share to the Surviving Sons or Son, and their Heirs for ever.
      
      The Testator died; then his Son John died without Issue; then Thomas leaving Issue, whereof the Eldest Son is since deceased without Issue; but there are now living John, Samuel Annesley, and Frances Wife of Wm. Bowen. The Testator’s Son Samuel, surviving his two Brothers, mortgaged 7 Acres of Pasture in Boston, Part of the Estate deviled them, to Nathaniel Cunningham, and his Heirs, by Force whereof he entered and held it, and then the Mortgagor died without Issue.
      Q. Is Nath’l Cunningham’s Estate in this Pasture good, or not?
      A. His Estate is void, for the Mortgagor had but one Half, and that in Tail, by the Devise above. —
      For the Devise above, giving all that of Right any ways belonged to the Testator, gave every Parcell of his Estate, and all the Right he had therein, and is as large as the Exprellion in the Case of Hopewell vs. Ackland, 1 Salk. 239, vizt., “ and whatsoever else I have not before dilposed of; ” and therefore would by itself pass a Fee Simple to the Three Sons.
      And these Words added, “to be equally divided among them,” would make them Tenants in Common of the Whole. 1 Salk. 226, Blisset vs. Cranwell. But by farther devising the Remainder to the Survivor, if either of his Three Sons dye without Heirs lawfully begotten in Wedlock, the Testator createth an Entail of their several Shares, 1 Salk. 233, Nottingham vs. Jennings. Devise to his second Son to hold to him and his Heirs for ever, and for Want of such Heirs, then to his own Right Heirs — adjudged an Estate Tail; and the Word Heirs can import nothing more than Issue, for he could not die without Heirs, living Heirs of the Father.
      Lastly, by devising the Share of such as dye without Heirs lawfully begotten in Wedlock, to the surviving Sons or Son, and their Heirs for ever, makes Cross Remainders among them. So that when John died first without Issue, the Remainder of his Share came equally to Thomas and Samuel in Tail; when Thomas died leaving Issue, his Moiety descended to the Heirs of his Body in Tail; and when Samuel died without Issue, his Moiety came to the Heirs of the Body of Thomas in Tail. 2 Jones, 172, Holmes vs. Meynell, on Cross Remainders by Implication, where Croke, James, 655, Gilbert & Witty, is questioned. See Dyer’ 303 Devise Cross Remainders express among 3, as this Case is. And Mr. Samuel Banister’s surviving both his Brethren doth not change his Estate, which was an Entail immediate by the Will, Remainder to Thomas and John, and the Heirs of their Bodies. Cro. James, 695, Chadock vs. Cowley. Therefore by Samuel’s Death without Issue, his Estate is determined ; by the Death of John without Issue, and of Thomas leaving Issue, the Right to this Remainder, by Force of the Gift vesteth in Thomas’s Issue in Tail, the Reversion to the Right Heirs of the Donor.
      Wherefore the Heirs of ye Body of Thomas shall demand and recover the Pasture of Mr. Cunningham by Force of the Devise aforesaid.
      Q. 2. To whom doth this Pasture fall, — to John the eldest Son surviving, or to the four Children of Thomas equally?
      A. This Pasture descends to all his Children equally as Coparceners by the Prov. Law, and they must join in Suit.
      The Testator was Seized of this Pasture as of an Inheritance descendible to all his Children as Coparceners as above, and therefore by giving it in Tail to his Sons and the Heirs of their Bodies, he could not alter ye Descent, and make that descendible to the Eldest Son only, which was by Law descendible to all ye Children; for —
      1. The fullest Words of Limitation to make an Intail, as in a Gift to A. and his Heirs of his Body begotten, have no Tendency to alter the Course of Descent, but only to limit whose Issue shall inherit, and so how long the Inheritance shall endure; and when that Issue is spent, the Estate reverts to the Donor. Lit. Ten. § 18, 19.
      2. The Stat. of West. 2, c. 1, makes no Intail but of such Estates as were Fee Simple Conditional at Common Law, and confirms them according to the Will of the Donor, but makes no Alteration of the Course of Descent. Co. Lit. 18, 19. Therefore Lands of Inheritance, whether intailed or not, always descended to the same Heirs. So Lands in Burrough English to the youngest Son. Co. Lit. no, b. Lands in Gavelkind to all the Sons. Co. Lit. 175, &c.
      3. If the Donor, intending by express Words to alter the Course of Descents, gives Lands to a Man and his eldest Heirs females of his Body, or Lands holden in Gavelkind, to a Man and his eldest Heirs, he cannot thereby alter the Law; the Word Eldest shall be rejected, and all the Parceners shall inherit. Co. Lit. 27, § 31.
      By ye same Reason and Law, this Pasture, descendible to all his Children as Parceners in Fee Simple by the Prov. Law, now intailed descends to all the Children, and they mull bring the Action.
      Boston, December 19, 1745. John Read.
      
      
        Or say, —
      1. The Nature of an Intail consists in limiting what Issue shall inherit, and how long the Inheritance shall endure, before the Donor or his Heirs may enter as in their Reversion. Lit. Ten. § 18.
      2. The Stat. of Donis conditionalibus creates no Estate Tail but of such an Estate as was Fee Simple at the Common Law, and is descendible in such Form as it was at the Common Law. Co. Lit. 19, Devant le dit Statute, &c.—the penultimate Sentence of the second Paragraph. Therefore Lands of Inheritance, whether intailed or not, always descend to ye Same Heirs in Either Case, Lands in Burrough English to the youngest Son. Co. Lit. § 165. Toutes les Terres ou Tenements. Lands in Gavelkind to all the Sons. Co. Lit. § 265.
      N. B. This last was, I think, in Mr. Pratt’s Handwriting.
     