
    The Lessee of James N. Lawrence v. Henry H. McArter.
    In a devise, “ to my four sons or the survivors of them, and their heirs and assigns, to be equally divided among them, when the youngest attains the age of twenty-one years,” cross remainders are not raised, but each takes a fee.
    Letters of attorney, from an infant, conveying no present interest, are absolutely null.
    This is a motion to set aside a verdict, taken for the defendant, in an action of ejectment, in the county of Knox.
    William Barton, Sen., was once the owner of the land.
    He died, and his will was proved, in 1802. By it, he devised the land, “to my four sons, Gilbert, William, Joseph, and Georgei or the survivors of them, and their heirs and assigns, to be equally divided among them, when the youngest attains the age of twenty-one years."
    
    All the sons survived the testator.
    ^George, the youngest son, attained twenty-one years in 1816. [88 Gilbert died, in 1812, intestate and without issue.
    William died, prior to 1812, and left a son, William, and a daughter, his heirs at law.
    Joseph was living when George arrived at full age, and the defendant now holds his interest.
    In 1815, before he came of age, George gave to his brother Joseph a letter of attorney, to sell his lands, and they have been sold under it, and the defendant claims the title.
    In 1835, George conveyed to the plaintiff.
    In the same year, William, the grandson, conveyed to the plaintiff.
    M. A. Sayre and R. C. Hurd, for the plaintiff:
    I. The letter of attorney from George Barton is void, because,, at the time of giving it, he was an infant. There may be doubts whether an infant can make a valid deed of bargain and sale, or of lease and release, but a letter of attorney, conveying no present interest, is spoken of in all the books as a mere nullity. Zouch v. Parsons, 3 Burr. 1804; Saunderson v. Marr, 1 H. Bl. 75 ; Stafford v. Roof, 9 Cowen, 626 ; 2 Kent’s Com. 234 236 ; Fonda Van Horne, 15 Wend. 631; 3 Bac. Ab. 598; 2 Roll. Ab. 2; Noy, 130 ; Palm. 237 ; Roll. 242; 8 Co. 45, a.
    
    
      An act done by another for an infant, which act must necessarily be by letter of attorney under seal, is absolutely void. Whitney v. Dutch, 14 Mass.’ 461.
    A letter of attorney given by an infant is absolutely void. Pyle v. Cravens, 4 Littell, 18; Burton on Real Property, 69; Law Library, No. 67; 1 Story’s Eq. 247; Bingham on Infancy, 34; Story’s Agency, 7.
    II.' The next question is, what estate was transmitted by the will.
    It is clear, that the devise creates a tenancy in common to commence in possession at the death of the testator. But does the 39] survivorship relate to the death of the testator, or to *the period fixed for the division of the estate ? This question depends on the meaning of the testator. Hawes v. Hawes, 3 Atk. 524 ; S. C., 1 Wils. 165; 1 Ves. 13 ; Roebuck v. Dean, 2 Ves. 265 ; Perry v. Woods, 3 Ves. 206; Stringer v. Phillips, 1 Eq. Cas. Ab. 292 ; Stones v. Heartley, 1 Ves. Sen. 164; Maberly v. Strode, 3 Ves. 454; Garland et al. v. Thomas et al., 1 Bos. & Pul. 88.
    The words, “ to be equally divided,” in a will, go to the quality and not to the limitation, of an estate. Jackson v. Luquera, 5 Cowen, 221; 2 Hilliard Ab. 43.
    If the construction claimed by the defendants be right, the devisees must be adjudged to have cross remainders, which are not favored in law. In Perry v. White, Cowp. 780, it was settled, that •cross remainders are not to be implied between more than two. An able writer, in relation to cross remainders, says: “ The only rules well settled seem to be these: 1. None by implication in a •deed. 2. Among two, the judges favor them, but not among more -than two.” 4 Dane’s Ab. 285.
    H. Stanbery, C. Delano, and H. B. Curtis, for the defendant:
    I. There is scarcely any question more vexed than whether the .acts of infants are void or voidable.
    This court was pressed with the difficulty arising from the contrariety of the cases, in Drake v. Ramsay, 5 Ohio, 251, but settled .no general rule.
    The older cases seem inclined to make the acts of infants void rather than voidable, and though no recent case is found directly. ■overruling these decisions, yet the rule of late recognized is based on a different principle, holding the acts of an infant void, where, .they are to his prejudice, but voidable, where they may be beneficial to him; and leaving their ratification or disaffirmance to his mature judgment, at full age. 2 Kent’s Com. 236 ; Oliver v. Houdlett, 13 Mass. 239 ; Kline v. Beebe, 6 Conn. 503.
    ^In Yin. Ab. 384, it is said: “ If a man makes a deed of [40 feoffment to an infant, and the infant makes a letter of attorney to another to take livery for him, this is good, because it is for his benefit.” S. P., 1 Roll. Ab. 730; Whitney v. Dutch, 14 Mass. 457.
    II. There can be no legal objection to the creation of a joint tenancy, in Ohio, by will. It is true this court has said, in Sargent v. Steinberger, 2 Ohio, 423, that estates in joint tenancy do not exist under our laws. But in that case there was a conveyance to husband and wife and their heirs. Such a limitation would create a joint tenancy at common law. It is very clear that we have no joint tenancy by operation of law, and that where without express words to create a survivorship, there is only a joint estate granted or devised, which at common law would make a joint tenancy, it would here be construed a tenancy in common. Eor it can scarcely be maintained that a survivorship can not be provided for and established by devise, where the intent is manifest. So long as a testator keeps within the restriction as to perpetuities declared in the law to restrict the entailment of estates, the disposition he may see proper to make of his land will be respected. There is certainly no statute to forbid a testamentary provision for survivorship or cross remainders among the first donees. An estate so limited is not in strictness a joint tenancy — a right of survivorship may be devised with a tenancy in common, and yet not make a joint tenancy, for there are other incidents to a joint tenancy besides the jus accrescendi. Eor instance, a joint tenant may by lease convey a title paramount to that of the survivors, which he could not do where a survivorship is provided by will among tenants in common, until the happening of a contingency.
    In Doe v. Abey, 1 M. & S. 428, it is said by Mr. Justice Bayley, that a “ tenancy in common, with benefit of survivorship, is a case which may exist without being in joint tenancy, because survivor-ship is not the only characteristic of a joint tenancy.”
   *Lane, C. J.

As the plaintiff holds the right of William [41 Barton, the grandson, if he inherited any from his father, it becomes necessary first to consider what estate was transmitted to the sons by the will. It gives the land to his sons, or the survivors and their heirs, to be divided when the youngest attains twenty-one. By this phraseology, did the testator intend to create cross remainders among his four sons, so that those who were surviving when the youngest was of age should take the estate, or does the condition of survivorship relate to the death of the testator, and an estate in fee pass to those of his sons who were then living?

We can not hesitate to believe that the intention of the testator will bo better met by the last construction. For if the former prevailed, the children of his son William, who died before the youngest became of age, would be excluded from the inheritance, and all their father’s share of the estate pass to the brothers. And the contingency which has here happened is a good example of the value of the rule which the law applies to cases like this, that cross remainders are not to bo presumed between more than two devisees, unless required by the imperative terms of the will; that they are not to be raised by implication, except between two only.

By the operation of this rule, the estate became vested in those of his children who survived the testator, and at the death of such children was transmitted by descent, and not in remainder.

The effect of this interpretation is, that William Barton, the grandson, took one-half the share of his father, who held one-fourth the land under the will, and one-sixteenth as the heir of his uncle Gilbert, which is now the property of the plaintiff, and is five thirty-seconds of the entire estate.

The same rule of construction gave to George Barton ten thirty-seconds, which is likewise held by the plaintiff, under a deed from him, unless George was divested of his title by the sale under the letters of attorney, given, in his minority, to his brother Joseph.

It is claimed by the plaintiff that these letters of attorney 42] *are void, incapable of ratification, and never well executed. We are then led to the oft discussed, and yet not settled question, as to what acts of an infant are void and what voidable. No accurate test has yet been propounded to determine this important point, and the authorities seem rather to decide individual cases than to give a comprehensive and intelligible rule. Yet in all, and from, the earliest, we find it laid down, that deeds which, do not derive their efficacy from delivery only, are void; and it has been held in many cases, and, as far as 1 can learn, without a dissenting opinion, or a contradictory authority, that letters of attorney, conveying no present interest, are absolutely null.

It would be a bold act to attempt to withstand this body of precedent, and we can not but recognize it as destructive of that part of the defendant’s title.

It is therefore unnecessary to consider any further questions. The plaintiff is entitled to fifteen thirty-seconds of the land.

The defendant is to have the benefit of the law for the relief of occupants.

Motion granted.  