[170] 27. Cook versus Gerrard. 
Hil. 16 & 17 Car. II. Regis, Rol. 33. 
Essex, to wit.—Be it remembered, that on Monday next after the octave of St. Hilary in this same term, before our lord the King at Westminster, came Gideon Cook by Nicholas Jekyll his attorney, and brought here into the Court of our said lord the King, then there, his certain bill against Sir Francis Gerrard Knight, in the custody of the marshal, &c. of a plea of trespass and ejectment; and there are pledges of prosecution, to wit, John Doe and Richard Roe; which said bill follows in these words, to wit; Essex, to wit, Gideon Cook complains of Sir Francis Gerrard Knight, being in the custody of the marshal of the Marshalsea of our lord the King, [171] before the King himself; for that whereas one Thomas Kempe on the 20th day of October, in the 16th year of the reign of our Lord Charles the Second, now King of England, &c. at Finchingfield, in the said county, had demised, granted, and to farm let to the said Gideon, six messuages, six cottages, one water corn-mill, one windmill, 360 acres of land, 40 acres of meadow, 200 acres of pasture, and 100 acres of wood, with the appurtenances, in Finchingfield aforesaid, and Sampford Parva, in the said county; to have and to hold the said tenements with the appurtenances to the said Gideon, from the Feast of St. Michael the Archangel then last past, unto the end and term of five years thence next following, and fully to be complete and ended; by virtue of which said demise the said Gideon entered into tho said tenements with the appurtenances, and was thereof possessed until the said Francis afterwards, to wit, on the day and year aforesaid, with force and arms, &c. entered into the said tenements with the appurtenances, in and upon the possession of him the said Gideon thereof, and ejected, expelled, and amoved him the said Gideon from his said farm, his said term therein being not ended, and him the said Gideon from his said possession thereof has kept out, and still keeps out, and other wrongs to him did against the peace of our said lord the now King, and to the damage of him the said Gideon of 51.: and therefore he brings suit, &c.
And the said Sir Francis Gerrard, by Humphrey Davis his attorney, comes and defends the force and injury when, &c. and says, that he is not thereof guilty, and of this be puts himself upon the country; and the said Gideon thereof likewise: therefore let a jury thereof come before our lord the King at Westminster, on Thursday next after the Purification of the Blessed Mary, and who neither, &c. to recognise, &c. because as well, &c.: the same day is given to the said parties there, &c.; afterwards, the process thereof is continued between the parties aforesaid, of the plea aforesaid by the jury being respited between them, before our lord the King at Westminster, until Wednesday next after fifteen days of Easter thence next following, unless the justices of our lord the King assigned to take assizes in the said county shall have come before that time, on Monday the 13th day of March, at Brentwood, in the said county, according to the form of the statute, &c. by reason of the default of jurors, &c.: at which day, before our lord the King at Westminster, come the said parties by their said attornies, &c.: and the said justices of our said lord the King of Assizes, before whom, &c. sent here their record had before them in these words, to wit:
Afterwards, at the day and place within contained, before Sir Samuel Brown Knight, one of the justices of our lord the King of the Bench, and Thomas Lee, this time associated to Sir Orlando Bridgraan Knight and Baronet, Chief Justice of our said lord the King of the Bench, and the said Sir Samuel Brown, justices of our said lord the King assigned to take assizes in the said county of Essex, according to the form of the statute, &c. (the presence of the said Sir Orlando Bridgman being not ex-[172]-pected by virtue of His said Majesty's writ of si non (mines, &c.),* came as well the within-named Gideon Cook, as the within-written Sir Francis Gerrard Knight, by their attornies within contained; and the jurors of the jury, whereof mention is within made, being called, some of them, to wit, J. U., J. T, N. C, A J., F. C, and T. W., come and are sworn upon the said jury; and because the rest of the jurors of the said jury did not appear, therefore others of the bystanders, being chosen for this purpose by the sheriff of the said county, at the request of the said Gideon Cook, and by the command of the said justices, are newly appointed, whose names are affiled to the within-written panel, according to the form of the statute in such case lately made and provided, and the jury so newly appointed, to wit, L. L, T. N., A. B., J. G., K. G, and W. H., being called, likewise come, who, together with the said other jury first impanelled and sworn, being elected, tried, and sworn to speak the truth of the within contained, say upon their oath, that long before the within-time when the within-mentioned trespass and ejectment are within supposed to be made, one Sir Robert Kempe Knight was seised (among other things) in his demesne as of fee of and in the within-written tenements, with the appurtenances; and that the said Sir Robert Kempe Knight, being so thereof seised, afterwards, and before the said time when, &c. to wit, on the 30th day of October, in the 14th year of the reign of our said lord the now King, made his last will and testament in writing,(1)* in these words following; that is to say, "I give and bequeath unto my loving wife, Dame Elizabeth Kempe, one annuity, or yearly rent-charge of two hundred pounds per annum, to be issuing and payable yearly out of my manors of Spaynes-hall, in Finchingfield aforesaid, and out of all the lands thereunto belonging, and out of all other my lands, tenements, and hereditaments in Finchingfield aforesaid, except my manor of Jekylls, now in the occupation of Robert Choate, and two parcels of wood-ground, called Bradfield-wood and Cheere-wood, now in my own occupation, and also except my other lands now in jointure to my daughter Ruth Kempe: the said annuity of two hundred pounds per annum to be paid to her or her assigus, for and during the term of her natural life, by half-yearly payments, at LadyDay and Michaelmas yearly, by equal portions, the first payment thereof to begin and to be paid at the first of the said feasts which shall first and next happen after the time of my decease, in full satisfaction of all such dower and thirds, as the said Dame
* Vid. F. N. B. Ill, 186.
(1) Since the statute of Frauds, 29 Car. 2, c. 3, s. 5, it is proper to add, "and which was duly executed by him the said testator in the presence of three witnesses, who duly and properly attested such execution." (a)
* See post, 276, note (2). Will set out in kmc verba. 
(a) [See the notes to Duppa v. Mayo, post, 279, et seq.] 
Elizabeth should or might claim out of my lands after my decease, and according to certain articles of agreement, bearing date the third day of May 1662, made between me the said Sir Robert Kempe of the one part, and Thomas Steward Esquire, [173] father of the said Dame Elizabeth my now wife, of the other part. And my further will and mind is, and I do hereby will and devise, that the said Dame Elizabeth, my loving wife, have the free use of my manor-house, called Spaynes-hall, and the orchard and garden thereunto belonging, and the free use of all my goods there, both within doors »nd without, for the space of one whole year next after my decease. And my further will and meaning is, that if in case I should happen to die, leaving the said Dame Elizabeth my loving wife with child, and the same child shall be a son, then my will and mind is, and I do hereby give, will, and devise all that manor house called Spaynes-hall, and all my lands, tenements, and hereditaments thereunto belonging, and all other my lands, tenements, and hereditaments whatsoever in Finchingfield aforesaid, and elsewhere in the said county of Essex, except my manor of Jekylls and lands thereunto belonging, and two parcels of wood-ground called Bradfield-wood and Cheere-wood, with the appurtenances, to my said after-born son, and to his heirs and assigns for ever. And my further mind and desire is, that in case I leave a son, that the sale of the said manor of Jekylls, and the two parcels of wood-ground called Bradfield-wood and Cheere wood, may be spared, and the lands not sold, but that the said sum of two thousand pounds may be paid out of the revenue of my estate, after my decease, not charged with any rent-charge or jointure, and out of my said loving wife's marriage-portion, which is now remaining in the hands of Thomas Steward Esquire, her father, when the same shall become due, and be unpaid at the time of my decease, and by the sale of such woods and timber which I do hereby appoint to be sold, as may be conveniently raised, not defacing the seat. And my further will and mind is, that in case I shall happen to die, leaving the said Dame Elizabeth my wife with child of a daughter, then my will and mind is, and I do hereby give, will, and devise all that my manor of Jekylls, and all the lands, meadows, and pastures thereunto belonging, with the appurtenances, and also all that parcel of wood-ground called Cheere-wood, and that other parcel of wood-ground called Bradfield-wood; and also all that messuage, tenement, or farm in Finchingfield aforesaid, and all the lands thereunto belonging, called by the name of Lymitts and Mortimers, or otherwise, with the appurtenances, now in the tenure of Joseph Choate, being of the yearly value of threescore and two pounds; and also all that parcel of wood-ground, lying in Finchingfield aforesaid, [174] near adjoining to the farm last before-mentioned, called Frithwood, containing by estimation twelve acres more or less, being of the yearly value of six pounds; and also all that messuage, tenement, or farm called Hovels, and all the land now therewith used with the appurtenances, in Finchingfield aforesaid, now in the occupation of Edward Lunn the younger, his assignee or assignees, being of the yearly value of forty-five pounds; and also all that messuage, tenement, or farm called by the name of the moiety of the manor of Cockfields with the appurtenances in Finchingfield aforesaid, and all the lands now therewith used, now in the tenure of George Barnard, and of the yearly value of fifty pounds, to the said Mary Kempe my grandchild, and to any such after born daughter, equally and indifferently to be divided betwixt them part and part alike; to have and to hold the said manor of Jekylls, and the two parcels of wood-ground called Cheere-wood and Bradfield-wood, immediately from and after my decease, to the said Mary Kempe and my said after-born daughter, for and during the term of their natural lives, doing no strip or waste: and after the several deceases of the said Mary Kempe and my said after-born daughter, I will and devise the same premises unto the heirs of the body of the said Mary Kempe and my said after-born daughter lawfully to be begotten, equally betwixt them to be divided; and if it shall happen I have no after-born son, or any such after-born daughter, then I will, give, and devise all and singular my said manors of Jekylls, and the lands thereunto belonging; and the said two parcels of wood-ground called Cheere-wood and Bradfield-wood, unto the said Mary Kempe, and to the heirs of her body lawfully to be begotten, for ever, and to have and to hold the farm called Lymitts and Mortimers, with the appurtenances, now in the tenure of Joseph Choate, the parcel of wood-ground called the Frith, the farm called Hovels, in the occupation of Edward Lunn, and the moiety of the manor of Cockfields, and the lands therewith used, in the tenure of George Barnard, to the said Mary Kempe and my said after-born daughter, immediately from and after the decease of Dame Elizabeth Kempe my now wife, for and during the term of their natural lives, doing no strip or waste; and after the several deceases of the said Mary Kempe and my said after-born daughter, I will, give, and devise the said lastmentioned premises unto the heirs of the body of the said Mary Kempe and my said after-born daughter lawfully to be begotten, equally and indifferently betwixt them to be divided part and part alike; and if it shall happen I have no after-born son, nor any such after-born daughter, then I will give and devise all and singular the said last-mentioned premises, in the [175] tenure of Joseph Choate, Edward Lunn, and George Barnard, and the parcel of wood ground called the Frith, in my own occupation, after the decease of Dame Elizabeth my now wife unto the said Mary Kempe, and to the heirs of her body lawfully to be begotten, for ever. And because I am very desirous to continue the possession of the capital messuage called Spaynes-hall in Finchingfield aforesaid, and of divers lands thereunto belonging, in the name and blood of the Kempes, so long as it shall please Almighty God, in case I leave no heir male of my body lawfully begotten, in which name and blood it hath continued for many ages past, and in pursuance of a promise and engagement by me heretofore made to my late dear uncle William Kempe Esquire, deceased, for the purpose aforesaid, when he gave the same to me; I do therefore hereby will, give, and devise the said capital messuage called Spaynes-hall, and lands aforesaid, in manner and form following: Item, I give and bequeath to my loving kinsman Thomas Kempe, citizen and draper of London, all that my said capital messuage called Spaynes-hall, and all the lands thereunto belonging, and all other my lands, tenements, and hereditaments whatsoever, with their and every of their appurtenances in Finchingfield aforesaid, and Sampford, in the said county of Essex, not heretofore by this my last will and testament willed and devised, or otherwise settled and disposed of by any act by me heretofore lawfully executed, to have and to hold all and singular the said capital messuage called Spaynes-hall, and all other the before mentioned premises with the appurtenances, unto the said Thomas Kempe, immediately from and after the expiration of one whole year next after my decease, and the decease of Ruth Kempe my daughter-inlaw, for and during the term of his natural life, doing no strip or waste; and after the decease of the said Thomas Kempe, I will, give, and devise the same premises to Thomas Kempe, eldest son of the said Thomas Kempe, by Elizabeth his now wife, for the term of his natural life, doing no strip or waste; and after his decease, to the heirs males of the body of the said Thomas Kempe, the son lawfully to be begotten; and for default of such issue, to the use and behoof of the heirs males of Thomas Kempe the father, lawfully begotten or to be begotten; and for default of such issue, then to the use and behoof of the right heirs males of me the said Sir Robert Kempe for ever. And my further will and mind is, that the said Thomas Kempe and his heirs respectively, in consideration of the devise aforesaid, immediately from and after the decease of Ruth Kempe my daughter-in-law, shall [176] pay unto my godson Robert Outlaw, out of the rents and profits of the jointure-lands of the said Ruth Kempe, for and during the natural life of him the said Robert Outlaw, one annuity or yearly rent-charge of twenty pounds per annum, by half-yearly payments, at LadyDay and Michaelmas yearly; and unto Edward Osborne my nephew, the like sum of twenty pounds per annum, by half-yearly payments, at Lady-Day and Michaelmas yearly during his natural life; and unto William Doughty my nephew, the like sum of twenty pounds by half-yearly payments, at Lady-Day and Michaelmas yearly, for and during the term of his natural life; and unto Elizabeth Outlaw, the daughter of my nephew Thomas Outlaw, the sum of twenty pounds per annum, by half-yearly payments, at Lady-Day and Michaelmas yearly, during her natural life. And my will and mind is, that if all or any of the said annuities or rent-charges shall happen to be behind and unpaid by the space of fourteen days after Lady-Day and Michaelmas yearly, being lawfully demanded at Spaynes-hall aforesaid, that then and at all times after it shall and may be lawful to and for the parties above named, and every or any of them, to enter into all or any part of the lands, which were the jointure-lands of the said Ruth Kempe, after the decease of the said Ruth, and distrain, and the distress and distresses there taken and found, to take, lead, drive, and carry away,
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and the same to retain, keep, or sell, rendering back the overplus, until he, her, or they be severally paid their several annuities before mentioned, and the arrearages of the same, if any shall happen to be. And my will and mind is, that the first payment of the said several annuities shall commence and begin to be paid at the first of the said feast-days as shall first and next happen after the death or decease of the said Ruth Kempe," as by the said will to the said justices and jury now here shewn, proved, read, and given in evidence, more fully appears. And the jurors aforesaid, upon their oath aforesaid, further say, that the said Ruth Kempe widow, daughter-inlaw of the said Sir Robert Kempe Knight, named in the said will, and lately the wife of one William Kempe Esquire, deceased, the only son and heir apparent while he lived of the said Sir Robert Kempe Knight, survived the said William Kempe her husband, and is still in full life; and that the said Ruth Kempe, at the time of making the said will, and of the death of the said Sir Robert Kempe had divers land and tenements, other than the lands and tenements mentioned in the declaration, and which also belonged to the said capital messuage at the time of making the said will and of the death of the said Sir Robert, settled upon her [177] for her jointure for the term of the life of her the said Ruth, of the reversion of which said lands so in jointure to the said Ruth for the term of her life, the said Sir Robert Kempe, at the said time when the last will and testament was above made by him the said Sir Robert Kempe, and also at the time of the death of him the said Sir Robert, was seised (among other things) in fee. And the jurors aforesaid, upon their oath aforesaid, further say, that the said William Kempe was the only son and heir apparent, while he lived, of the said Sir Robert Kempe of his body begotten, and that he the said William Kempe had issue of the body of him the said William, upon the body of the said Ruth his wife begotten, one daughter, namely, Mary Kempe, which said Mary is the daughter and heir of him the said William Kempe; and that afterwards and before the said time when, &c. and before the death of the said Sir Robert Kempe, father of him the said William Kempe, to wit, on the 15th day of January, in the year of our Lord 1660, the said William Kempe, at Finchingfield aforesaid, died, and the said Mary Kempe survived him the said William Kempe, and is yet in full life. And the jurors aforesaid, upon their oath aforesaid, further say, that the said Sir Robert Kempe Knight, being so seised as aforesaid, of and in the said tenements, with the appurtenances in the said declaration mentioned, and likewise of the said reversion as aforesaid, afterwards and before the said time when, &c. to wit, on the 3d day of September, in the 15th year of the reign of our said lord the now King at F. aforesaid, died so thereof seised, without heir of his body, other than the said Mary. And the jurors aforesaid, upon their oath aforesaid, further say, that the said Thomas Kempe, named in the within written declaration, who demised to the said Gideon Cook the said tenements, with the appurtenances in the said declaration mentioned, and Thomas Kempe likewise above mentioned in the said last will and testament of the said Sir Robert, are one and the same person, and not other or different; and that afterwards and before the said time when, &c. and after the term of one whole year after the death of him the said Sir Robert Kempe, to wit, on the 15th day of October, in the 16th year of the reign of our said lord the now King, he the said Thomas Kempe entered into the capital messuage called Spaynes-hall, being the said messuage devised to the said Elizabeth Kempe for one year, and into the lands, tenements and hereditaments with the appurtenances thereunto belonging and appertaining, being the same messuage, and the same tenements with the appurtenances, as well in manner and form aforesaid devised in the said last will and testament to the said Thomas Kempe as above mentioned in the said testament, as mentioned in the said declaration, and not other or different, nor being lands or tenements, or any parcel thereof, in the jointure of the said Ruth Kempe above mentioned, [178] nor otherwise settled or disposed of by any act of him the said Sir Robert Kempe, lawfully executed, and was thereof seised as the law requires; and that the said Thomas Kempe being so seised thereof afterwards, to wit, on the 20th day of the said month of October, in the 16th year aforesaid, demised unto the said Gideon Cook the said tenements with the appurtenances mentioned in the said last will and testament and declaration, to have and to hold the said tenements with the appurtenances, to the said Gideon Cook, from the Feast of St. Michael the Archangel then last past, unto the end and term of five years thence next following, and fully to be complete and ended; and that by virtue of the said demise, he the said Gideon entered into the said tenements with the appurtenances, and was thereof possessed; and that the said Gideon being so possessed thereof, the said Francis Gerrard, by the command of the said Ruth Kempe and the said Mary Kempe afterwards, to wit, on the said 20th day of October, in the 16th year aforesaid, entered into the said tenements, with the appurtenances in and upon the possession of him the said Gideon thereof, and ejected him from his said farm; but whether upon the whole matter aforesaid, by the said jurors in form aforesaid found, the said Francis Gerrard is guilty of the said trespass and ejectment within supposed to be by him done, the said jurors are entirely ignorant, and thereof pray the advice and consideration of the Court here. And if upon the whole matter aforesaid, by the said jurors in form aforesaid found, it shall appear to the Court here, that the said Francis Gerrard is guilty of the said trespass and ejectment, then the said jurors upon their oath say, that the said Francis Gerrard is guilty of the said trespass and ejectment, in manner and form as the said Gideon Cook within complains against him, and then they assess the damages of him the said Gideon Cook, on occasion of the said trespass and ejectment, beyond his costs and charges by him about his suit in this behalf expended, to 6d, and for those costs and charges to 40s. And if, upon the whole matter aforesaid by the said jurors in form aforesaid found, it shall appear to the Court here, that the said Francis Gerrard is not guilty of the said trespass and ejectment within supposed to be by him done, then the said jurors say upon their said oath, that the said Francis Gerrard is not guilty of the said trespass and ejectment, as he the said Francis Gerrard has within in pleading alleged. And because the Court of our said lord the Ring here is not yet advised of giving their judgment of and upon the premises, a day thereof is given to the said parties before our lord the King at Westminster, until Friday next after the morrow of the Holy Trinity, to hear their judgment thereof, because the Court of our said lord the King here is thereof not yet, &c. At which day, before our lord the King at Westminster, come the said parties by their said attornies; and because the Court of our lord the King here is not yet advised of giving their judgment of and upon the premises, a day thereof is further given to the said parties before our lord the King at Westminster, until Tuesday next after three weeks [179] of St. Michael, to hear their judgment thereof, &c. because the Court of our lord the King here is thereof not yet, &c. Before which said three weeks of St. Michael the said suit was adjourned by His Majesty's writ of common adjournment, from Westminster aforesaid, to the City of Oxford, in the county of Oxford, until the octave of St. Martin then next following; at which said octave of St. Martin, before our lord the King at Oxford aforesaid, come the said parties by their said attornies; and because the Court of our lord the King here is not yet advised of giving their judgment of and upon the premises, a day thereof is further given to the said parties before our lord the King at Oxford aforesaid, until Saturday next after the octave of the Purification of the Blessed Mary thence next following. Before which day the said suit was further adjourned by another writ of His said Majesty of common adjournment to Westminster aforesaid, until the said octave of the Purification of the Blessed Mary; at which said Saturday next after the octave of the Purification of the Blessed Mary, before our lord the King at Westminster, come the said parties by their said attornies; and because the Court of our lord the King here is not yet advised of giving their judgment of and upon the premises, a day thereof is further given to the said parties before our lord the King at Westminster, until Wednesday next after fifteen days of Easter, to hear their judgment thereof, &c. because the Court of our lord the King here is thereof not yet, &c. (and so it is continued from term to term). At which day, before our lord the King at Westminster, come the said parties by their said attornies; whereupon all and singular the premises being seen, and by the Court of our lord the King here more fully understood, and mature deliberation being thereof had, for that it seems to the Court of our lord the King here, upon the whole matter aforesaid above in form aforesaid found, that the said Francis Gerrard is guilty of the said trespass and ejectment in the said declaration above imputed to him, in manner and form as the said Gideon Cook has above declared against him; therefore it is considered, that the said Gideon do recover against the said Francis his term yet to come of and in the said tenements, with the appurtenances, and the said damages by the said jury in form aforesaid assessed; and also 181. for his said costs and charges adjudged of increase to the said Gideon by the Court of our lord the King here with his assent, which said damages amount in the whole to 261. And let the said Francis Gerrard be taken, &c.
Afterwards, to wit, on Saturday the 15th day of June, in the 19th year of the reign of our said lord the now King, the transcript of the said record and process between the said parties, with all things touching the same, was transmitted from the said Court of our lord the King here before the King himself, by virtue of a certain writ of our lord the King for correcting of error prosecuted by the said Francis Gerrard in the [180] premises, before the justices of our said lord the King of Common Bench and Barons of the Exchequer, in the Chamber of the said Exchequer, according to the form of the statute made in the Parliament of the Lady Elizabeth, late Queen of England, holden at Westminster, on the 23d day of November, in the 27th year of her reign; and the said Francis, in the same Court of the said Exchequer-Chamber, assigned divers matters in the said record and process to reverse and annul the said judgment; to which the said Gideon, appearing in the said Court, pleaded that there was not any error, either in the said record and process, or in the giving of the said judgment. And afterwards, to wit, on Saturday the 6th day of February in the 21st year of the reign of our said lord the now King, before the said justices of our said lord the King of Common Bench and Barons of the Exchequer of our said lord the King in the said Court of the said Exchequer-Chamber, came as well the said Gideon Cook, as the said Francis Gerrard by their said attornies, whereupon all and singular the premises being seen by the Court of our lord the King in the same Exchequer-Chamber, and diligently examined and more fully understood, and mature deliberation being thereof had, it was considered that the said judgment is in nothing vitious or defective, and that there is not any error in the said record; therefore it was considered that the said judgment should be in all things affirmed, and stand in its full force and effect, notwithstanding the said cause above assigned for error; and it was then and there further considered, that the said Gideon Cook should recover against the said Francis Gerrard * pounds, adjudged to the said Gideon with his assent, by the Court of our lord the King in the same Exchequer-Chamber, according to the form of the statute thereof* made and provided, for his damages, costs, and charges, which be had on occasion of the delay of the execution of the said judgment, on pretence of prosecuting the said writ of error. And thereupon the said record and process thereof, had before the said justices and Barons in the premises, were remitted by the said justices and Barons, before the King, wheresoever, &c. according to the form of the said statute, &c. and now remain here in the said Court of our said lord the King, before the King himself, &c.

[180] 27. Cook versus Gerrard. 
S. C. 1 Lev. 212. 2 Keb. 206, 224. Vin. Devise, 353, pi. 20. S. C. cited in Prec. Chanc. 440, Sympsom v. Hornsby. A. seised in fee of lands in demesne, and also of a reversion expectant on the death of R. K. devises the free use of the demesne, to his wife for one year, and then devises the said demesnes, and all other his lands, tenements, and hereditaments whatsoever, not before devised, or otherwise settled, to W. K. habendum immediately from and after the expiration of that year, and the decease of the said R. K. to the said W. K. The devisor dies, and the year expires. W. K. shall have the demesnes presently, and the reversion after the death of R. K.; for it shall be taken reddendo singula singulis.(a) Also a devise of the free use of lands passes the interest in them.
Ejectment.—The plaintiff declares, that Thomas Kempe, on the 20th of October, in the 16th year of the reign of the now King, demised to the plaintiff divers messuages, lands, and tenements, in Little Finchingfield and Little Sampford, in the

county of Essex, to have from Michaelmas then last past for five years, by force of which demise the [181] plaintiff entered and was possessed, until the defendant ejected him to his damage, &c. Upon not guilty pleaded, the jury found a special verdict to this effect, namely, they found that, before the trespass and ejectment, Sir Robert Kempe Knight was seised of the lands in question (among other things) in his demesne as of fee; and being so seised on the 13th of October, in the 14th year of the now King, made his will in writing, which is found in hat verba, whereby he devised (among other things) as follows, that is to say, "I do will and devise that my loving wife Dame Elizabeth have the free use of my manor-house called Spaynes-hall, with the orchard and garden thereunto belonging (being the lands in question), for the space of one whole year next after my decease. Ana my further will and meaning is, that in case I shall happen to die, leaving my wife with child, and the same child be a son, then I do will and devise my manor-house called Spaynes-hall, and all my lands and tenements thereto belonging, and all my lands in Essex, (except the manor of Jekylls and some other lands, expressed in the will), to my said after-born son, and his heirs and assigns for ever." And then he made provision for the after-born child, in case it should be a daughter, by a devise of the manor of Jekylls to her and Mary Kempe his grand-daughter in fee; but in case he should have no after-born child, then he devised the whole manor of Jekylls to Mary his grand-daughter in fee. And then followed the clause upon which the controversy arose, namely, "and because I am very desirous to continue the possession of the capital messuage called Spaynes-hall, in Finchingfield aforesaid, and of divers lands thereunto belonging, in the name and blood of the Kempes, so long as it shall please Almighty God, in case I leave no heir male of my body lawfully begotten, in which name and blood it hath continued for many ages past, and in pursuance of a promise and engagement by me heretofore made to my late dear uncle William Kempe Esquire deceased, for the purpose aforesaid, when he gave the same to me, I do therefore hereby will, give, and devise the said capital messuage called Spaynes-hall, and lands aforesaid, in manner and form following: Item, I give and bequeath unto my loving kinsman Thomas Kempe, citizen and draper of London (who is the lessor of the plaintiff), all that my said capital messuage called Spaynes-ball, and all the lands thereunto belonging, and all other my lands, tenements, and hereditaments whatsoever, with their and every of their appurtenances in Finchingfield aforesaid, and Sampford, in the said county of Essex, not heretofore by this my last will and testament willed and devised, or otherwise settled and [182] disposed of by any act by me heretofore lawfully executed, to have and to hold all and singular the said capital messuage called Spaynes-hall and all other the before-mentioued premises with their appurtenances, unto the said Thomas Kempe, immediately from and after the expiration of one wholo year next after my decease, and the decease of Ruth Kempe my daughter-in-law, for and during the term of his natural life, doing no strip or waste. And after the decease of the said Thomas Kempe, I will, give, and devise the same premises to Thomas Kempe, eldest son of the said Thomas Kempe, by Elizabeth his now wife, for the term of his natural life, doing no strip or waste," with the remainder over in tail to the heirs male of Thomas the son, remainder over in tail to the heirs male of Thomas the father, with limitation over to the right heirs male of the devisor. And they further found, that the said Ruth Kempe, widow, the daughter-in-law of the said devisor, and late the wife of one William Kempe Esquire, the only son and heir apparent (while he lived) of the devisor, survived her husband, and was in full life; and that the said Ruth, at the time of the making of the said will, and at the time of the death of the devisor, had divers lands and tenements (besides the lands in question which belonged to the said capital messuage) settled upon her for her jointure for the term of the life of the said Ruth (of the reversion whereof the said devisor was seised in fee at the time of the will and his death). And the jury further found, that the said William Kempe, while he lived, was the only son and heir of the body of the devisor; and that the said William died in the life-time of the devisor, and that the devisor died so seised without any other issue; and that the lessor of the plaintiff, and Thomas Kempe named in the will, is the same person; and that the said lessor of the plaintiff, after the expiration of a year after the death of the devisor, entered into the messuage called Spaynes-hall, and the other lands thereto belonging, being the lands devised to Elizabeth for a year, and which were not in jointure to Ruth, nor otherwise disposed by the devisor, and was seised as the law requires, &c.; and being so seised, demised them to the plaintiff for the term mentioned in the declaration, who entered and was possessed until the defendant, by the command of the said Ruth and Mary, who was the heir at law, entered upon him and ejected him, as the plaintiff has declared; but whether the defendant be guilty of the ejectment or not, they leave to the judgment of the Court; and if the Court shall adjudge for the plaintiff, they find for the plaintiff, and give damages and costs; and if the Court shall adjudge for the defendant, they find for the defendant.
And this case was argued in the King's Bench by Jones [183] for the plaintiff, and by Conyers of the Middle Temple for the defendant. And the case upon the verdict was opened in this manner, namely, Sir Robert Kempe Knight, was seised of the lands in question in fee, and was also seised of the reversion of other lands expectant upon the death of Ruth Kempe his daughter-in-law (whereof Ruth had an estate for her life for her jointure); and being so seised, the said Sir Robert Kempe, by his will in writing, devised that Dame Elizabeth his wife should have the free use of the demesne lands (being the lands in question) for one year after his death; and then he ilevised the demesnes and the reversion (I) together to the lessor of the plaintiff, habendum immediately from and after the expiration of one whole year next after his decease, and the decease of the said Ruth Kempe, who was tenant for life of the reversion lands, for the term of the life of the said Thomas Kempe, lessor of the plaintiff, doing no strip or waste. And whether Thomas Kempe the lessor should have the demesne lands immediately after the expiration of the year, or should have nothing until the death of the said Ruth, and if the demesne lands should descend to the heir in the mean time, was the question; for if he must wait until the death of Ruth, then the plaintiff and his lessor have not any title, because the said Ruth was found to be living.
And Jones for the plaintiff argued, that Thomas Kempe the plaintiff's lessor had title to the demesne lands (being the lands in question) immediately after the expiration of the year; for though the words of the will are joint, namely, habendum immediately from and after the expiration of one whole year after my decease, and tlie decease of my daughter-in-law, Ruth Kempe, yet, he said, the words shall be takeu distributively, and reddendo singula singulis; that is to say, that the devisee Thomas Kempe shall have the demesne land immediately from and after the expiration of the year, and the lands in reversion from and after the decease of the said Ruth Kempe; and upon this ground he cited divers books, namely Cro. Eliz. 199, Veale v. Roberts.(2) Stephens was seised of two customary messuages with the lands thereto belonging; and Heydon was seised of two others with the lands thereto belonging; and W. and W. were possessed of 10 acres called Normors, being the lands in question; all which were parcel of the possessions of the Abbey of Gloucester: the abbot and convent demised for years to John Veale all the said messuages and lands thereto belonging, and also the said lands called Normors, habendum the said messuages and lands, and also the said land called Normors, from the time of the death, surrender, forfeiture, or determination of the said estate and term of the said Stephens, Heydon, and W. and W. rendering a rent. The estate of the said VV. and W. in Normors expired, and the other estates were in esse; and it was adjudged that the term granted to John Veale should commence imme-[184]-diately in Normors, and should not wait until the
(1) It was admitted on both sides that the reversion passed by the devise of "all other his lands not before devised or otherwise settled." 1 Lev. 212. So is Willows v. Lydcot. 2 Vent. 285. Carth. 50, S. C. Strode v. Russell. 2 Vern. 621. 3 P. Will. 55, Chester v. Chester.^) 
(2) S. C. 2 Leon. 105.
(6) [1 B. & Ad. 593, Doe v. Jeyes, where Lord Tenterden said, that the rule of law is, that a reversion will pass by general words, unless it distinctly appear that the settlor or testator intended to exclude it. See 1 Bing. N. C. 341, Mostyn v. Champneys. 1 Scott, 293, S. C. 1 Mann. & Gr. 335, Doe v. Thomas. 1 Scott, N. R. 359, S. C. accord.] 
determination of the other estates, and that the habendum should be construed distributively, reddendo singula singulis. Cro. Jac. 259, Aylor v. Chep.(3) One devised lands to his two sons and the heirs of their two bodies, and that his executor should have the lands until they came to their several ages of one-and-tweniy years; one son attained his age of 21 years, and entered, and adjudged that he might well do so, notwithstanding the other had not attained his age; for the words of the will shall be taken distributively, reddendo singula singulis, and therefore they should enter into their several parts as they should respectively attain their age. So is Cro. Jac. 655, Gilbert v. Witty and Others: (4c) the devisor had three sons, and devised one messuage to the first son and his heirs, and another messuage to the second son and his heirs, and a third messuage to the third son and his heirs; provided always, that if all my said sons die without issue of their bodies lawfully begotten, tlien all my said messuages shall remain and be to Margery my wife and her heirs for ever. Two of the sons died without issue, the third son survived and had issue; yet it was adjudged that the wife should have the messuages devised to the two sons who were dead without issue, immediately after their respective deceases, though the words were, that if all my sons die, then all my lands shall remain, &c. And Justice Wyndham's case * has the same construction as Veale and Robert's case above cited: and yet that was in a deed, which is not so favourably construed as a will; for a will shall be construed as near the true meaning as can be. And he contended the true meaning of the will in question to be as he had construed it: for, first, it appears by the will that the testator intended that the lands devised should remain in his name; but if they should descend to Mary Kempe his grand daughter and heir, although she be of the name of Kempe at present, yet by common intendment she will change her name by marriage, and then the intent of the devisor will not take effect; and the devisor has otherwise provided for his said granddaughter and heir by the devise of the manor of Jekylls and other lands. Secondly, it appears by the will, that Kempe the devisee, immediately after the death of Ruth, should pay out of the jointure lands 201. a year to one Robert Outlaw, a godson of the devisor, for his life, at Lady-Day and Michaelmas. Now, if the said Ruth had died within the year after the testator, the said 201. a-year should not be paid unless the devisee should have [185] them immediately after the decease of Ruth, notwithstanding the year was not expired; and therefore it should be construed that the devisee should have the jointure lands immediately after the death of Ruth, and should have the demesne lands immediately after the expiration of the year after the testator's death; for otherwise the 201. a-year would not be paid immediately after the decease of Ruth by the devisee, if Ruth had died within the year, which is directly contrary to the express words of the will. Thirdly, the devisor provides by his will, that there shall be no waste or strip committed by the devisees, but would have it kept entire without spoil to continue in his name: but if the demesne lands should descend to the heir in the mean time until the death of Ruth, the heir may commit what waste she pleases, and no means to prevent it, which would be directly against the will and the true meaning of the devisor. And for these reasons he prayed judgment for the plaintiff.
Conyers for the defendant put the case, and it appeared to him that the plaintiff ought to be barred, because (as he held) the lessor of the plaintiff being the devisee should take nothing before the death of Ruth, and the expiration of the year, but that the demesne lands, after the expiration of the year, should descend to the heir at law until the death of Ruth and that the words of the will should be taken as they are, namely, joint, and not distributively; for he argued that the words in a will, which disinherit the heir at law, ought to be very perspicuous and clear, and not dubious; for if they are dubious (as in this case), they ought to be interpreted
(3) S. C. Yelv. 183. 1 Brownl. 147; and 1 Bulst. 42; but misreported in this last book.
(4) S. C. 2 Rol. Rep. 281, S. C. cited by Bridgman C.J. in Rundal v. Eelay, Cart. 173; cited also in Cole v. Levingston, 1 Vent. 224; in Holmes v. Meynel, Sir T. Raym. 454, and 2 Show. 139; and arguendo in Wright v. Holford. Cowp. 32, 34. Bee post, 185, note (6).
* 5 Rep. 7.
for the benefit of the heir, and not to disinherit him ; and for this he cited many cases.(5) And as to the case of Gilbert and Witty above cited, he said, that there the construction, that the wife should take the messuages devised to the said two sons who died, immediately after their deceases, was through necessity, because the Judges could not make cross remainders; (6) and for that reason alone they construed that the wife
(5) So is Cro. Car. 369, Spirt v. Bence. Vaug. 262, Gardner v. Sheldon. Sir T. Raym. 453, Holmes v. Meynel. 1 Chanc. Cases, 7. Cowp. 660, 661, Denn v. Gaskin. 1 P. Will. 38, Philips v. Philips. Ibid. 473, Willis v. Lucas. 3 P. Will. 61, Chester v. Chester. 6 T. R. 671, Thomas v. Thomas.(c) But where there is no ambiguity, a devisee is as much favoured as an heir at law. 6 Mod. 133. Anon. 2 Vera. 340, per Holt Chief Justice, in Lord Falkland v. Bertie. 
(6) This was upon the principle that cross-remainders could not be implied between more than two; Doddridge Justice saying, that though cross-remainders may be implied between two, yet the law would not endure them between three, to which the two other Judges agreed; but Ley the Chief Justice was of opinion, that there ought to have been cross-remainders in order to satisfy the word all, which shewed the testator's intent to be, that his wife should not have any part of the estate until all his sons were dead without issue, and likewise that all the estate was to vest in the wife at the same lime. ' 2 Rol. Rep. 282, S. C. And it seems certain, that the case would now be decided according to his opinion. See Sir T. Jones, 173, Holmes v. Meynel. There were two reasons assigned against implying cross-remainders between more than two. One was to prevent, as well the confusion which, it is said, would follow from the division of an estate among many, as the uncertainty which would arise, whether the surviving shares should vest in them as joint tenants or tenants in common, and for what estate. The other, which was a technical reason, was to avoid tbe splitting of tenures. The distinction taken by Doddridge J. seems to have been adhered to for a considerable time after. Lord Hale gives it as his opinion that cross-remainders shall not rise between three, unless the words do very plainly express the intent of the devisor to be so: as where Black-acre is devised to A., White-acre to B., and Green-acre to G, and if they die without issue of their bodies, vel alteriux mum, then to remain, &c. there, by reason of the words "alterius eorum," crossremainders shall be. 1 Vent. 224, Cole v. Levingdon. And the Court of K. B. adopted the same distinction in Holmes v. Meynel, Sir T. Jones, 173. So in 1 Ves. 104, Marryat v. Townly, Lord Hardwicke lays it down, that the law will not admit cross-remainders to be raised by implication among more than two. The leaning of his mind seems to have been against raising cross-remainders by implication even between two only. In 1 Atk. 579, 580, Davenport v. Oldis, he says, that cross-remainders are never favoured by the law, and can only be raised by an implication absolutely necessary. And therefore, where a man devised to his wife for life, and after her decease to his son and daughter I. 0. and M. O. to be equally divided between them, and the several and respective issues of their bodies, and for want of such issue to the wife in fee; I. O. died without issue; Lord Hardwicke held that there was no cross-remainder, because the words "several and respective" effectually disjoin the title, and the presumption was as strong in favour of the wife as of the children. So where a devise was to the testator's grandson R. H. and to E. H. his grand-daughter, equally to be divided, and to the heirs of their respective bodies, and for default of such issue to his grand-daughter A. B. in fee; E. H. the grand-daughter died without issue; Lord Hardwicke C.J. in delivering the opinion of the K. B. said, that the words "in default of such issue " may very naturally refer to the word respective, and then it would run as if the devise had been of one half to his grandson, and the other to his grand daughter, and for want of such issue respectively, to A. B.; that is, the same respective part that the person dying was seised of. 2 Str. 969, Comber v. Hill. S. C. Cas. temp. Hardw. 22. And precisely the same point was determined in Williams v. Browne, 2 Str. 996. And where a devise was "to R. C. for life, and after his decease unto the lawful issue of the said R. C. as tenants
(c) 7 East, 97, Trent v. Hanning. 9 East, 267, Right v. Compton. 3 B. & A. 425, Cooper v. Jones. [9 B. & C. 224, Rex v. Ringstead. 4 M. & R. 75, S. C. 1 Sim. & Stu. 544, Aspinall v. Petvin.] 
should take immediately after the deceases of the sons, because there was no other to take it. And he also urged that here there was no devise to the wife of the devisor of Spaynes-hall and the demesne lands at all, but only of the free use of them: and
in common; but in case the said R. C. shall die without leaving lawful issue, then to E. H. in fee;" it was held that R. C. took an estate tail in order to effectuate the testator's general intent, and that cross-remainders could not be implied between the issue of R. C.; for that would be in express contradiction to the rule of law in Comber v. Hill, namely, that cross-remainders shall not be implied between more than two, unless such appears on the face of the will to have been the intention of the testator; but that no such intent appeared in that case from the words of the will. 1 East, 229, Doe on dem. of Cook v. Cooper. But if the intent were plain, Lord Hardwicke admitted that cross-remainders might then be implied between two, and recognised the cases where it had been so decided. As where a man devised part of his land to his eldest son in tail, and the other part of his land to his younger son in tail, and that if any of his sons died without issue, "then the whole land should remain to a stranger in fee ; " the younger son died without issue; it was adjudged that the eldest son should have the land by the implicative devise. 4 Leon. 14, pi. 51. So where a man devised all his lands unto his two daughters E. an A. and their heirs, equally to be divided betwixt them, and in case they happen to die without issue, then to F. M. in tail; A. died without issue; it was held that the other daughter should take A.'s moiety by way of cross-remainder. For that seemed to be the clear intent of the testator, as appeared from the words they and all; which was as much as to say, that if both died without issue, then all the said land should go together to F. M. Sir T. Jones, 172, Holmes v. Meynel. S. C. Sir T. Raym. 452. Pollexf. 415.
But the rule of cross-remainders has of late years been construed with some qualification, and the leaning of Courts of Justice seems to have been in favour of them. For the settled distinction now is, that the presumption is in favour of cross-remainders between two and no more; but where they are to be raised between more than two, the presumption is against cross-remainders, though such presumption may be answered by circumstances of plain and manifest intention either way. Cowp. 777, Pery v. White. Ibid. 797, Phipard v. Mansfield. 4 T. R 710, Alherton v. Pye. If it appears from the whole will, that the testator intended cross-remainders between more than two, that intent will now be effectuated in the same manner as is done in every other case of an intent in a will, and as was formerly done where crossremainders were to be implied between two only, though with more liberality of construction than in some of the former cases. And this seems agreeable to what had been decided long before, namely, in the 13 Eliz. Dyer, 303 b, where a man, having issue five sons, devised lands to his four younger sons and the heirs male of. their bodies, and if they all died without issue of their bodies, or any of their bodies, that the lands should remain to his right heirs: it was held, that no part should revert as long as any of his sons had issue male. Accordingly in a late case, where the devise was to the use of "all and every the daughter and daughters of P. H. and C. M. H. the testatrix lawfully to be begotten, and to the heirs of their body and bodies; such daughters, if more than one, to take as tenants in common and not as joint tenants; and for default of such issue, to the use of her right heirs :" the testatrix died leaving I. W. her heir at law, and two daughters by P. H.: one of the daughters died without issue. The Court of K. B. was of opinion that the daughters took cross-remainders. Cowp. 31, Wright v. Holford; see S. C. 6 Brown. P. C. 156, 164, 165, 180. This has been considered as a leading case ever since. The words "several and respective," which were relied upon in the cases of Comber v. Hill, Williams v. Browne, and Davenport v. Oldis, to shew that the limitation over was to take place upon failure of either of the daughters and their issue respectively, were not used in this case, and therefore it is in that respect distinguishable from them. But still it has been objected, that these words are necessarily implied in the case of Holford v. Wright; because the words "to take as tenants in common " do, it is said, also effectually disjoin the title; for tenants in common take by several titles, and the estate descends to their issue respectively, and by such issue is necessarily meant respective issue: and therefore it is alleged, that there is no substantial distinction between these cases. The same reasoning is adopted those lands descended to the heir at law; and so it is but an executory devise to the lessor of the plaintiff to commence at a future time, (and in the mean time it will descend to the heir at law,) which may take effect after the death of Ruth
by Lord Kenyon in Watson v. Foxon, 2 East, 41. So too where G. P. gave all his lands unto his two brothers W. P. and I. P. and his sister E. C, and the heirs of their bodies lawfully begotten, as tenants in common and not as joint tenants, and for want of such issue, to his own right heirs for ever; W. P. was heir at law; I. P. died without issue: it was held that there were cross-remainders, and of course the share of I. P. vested in W. P. and E. C. Cowp. 797, Phipard v. Mansfield. So where a man devised to all and every the daughter and daughters of the body of his daughter M. and the beirs male of the body of such daughter or daughters equally between them, if more tban one, as tenants in common, and not as joint tenants; and for and in default of such issue, he gave and devised all the premises unto his right heirs: the Court was of opinion that the testator intended that the whole should go together upon the death of all his grand-daughters without issue male, and held that they should take by cross-remainders. 4 T. R. 710, Atherton v. Pye. And where a testator devised to S. N. and M. F. for their lives, and after their death he gave "all and every the said premises to all and every the younger children of the said M. F. begotten or to be begotten, if more than one, equally to be divided amongst them, and to the heirs of their respective body and bodies, to hold as tenants in common, and not as joint-tenants; and if the said M. F. shall have only one child, then to such only child, and to the beirs of his or her body lawfully issuing, and for want of such issue he gave the said premises to C. N. (with several limitations over) and for want of such issue, then the testator devised the said premises over :" it was held that cross-remainders were to be implied between the younger children of M. F. from the apparent intention of the testator; notwithstanding the word "respective" used in such devise. 2 East, 36, IVatson v. Foxon. And Mr. Justice Lawrence, in giving his judgment, cited the case of Doe v. Burville, decided in the K. B. in Easter, 13 Geo. 3, where a devise by A. (who had three sons and seven daughters) "to bis sons successively for life, remainder to the heirs male of their bodies, remainder to the heirs female of their bodies, remainder over to all and every his daughter and daughters (if two or more) as tenants in common, and to the heirs of her and their bodies, remainder to the heirs of the devisor's brother, was held to give cross-remainders to the daughters: for though between more than two the presumption is against cross-remainders, yet that may be controlled by a plain intention to the contrary. 2 East, 47.(d) 
So cross-remainders may be created by deed, but then it must be by express words. 
(d) [5 Bing. 469, Doe v. Jenkins. 3 M. & P. 59, S. C] The [other] principal cases which have been since decided upon the subject of cross-remainders in a will, are 6 East, 628, Roe v. Claykm. 1 Dow. 384, S. C. 1 Taunt. 234, Doe v. Webb. 17 Ves. 64, Green v. Stephens. 3 B. & A. 425, Cooper v. Jones. [1 Russ. & M. 636, Livesey v. Harding. 6 Sim. 358, Ashley v. Ashley."] 
In Roe v. Clayton a man, having a niece S. E. the daughter of a deceased brother, and four sisters, one of whom alone had issue, gave all his lands, tenements, and hereditaments, at Elly-Hill, and all other his real estate whatsoever and wheresoever, to S. E. for her life; remainder to trustees to preserve contingent remainders; remainder to the first son of S. K in tail; remainder to the second and other sons of S. E. successively in tail; remainder to all and every the daughter and daughters of S. E. in tail as tenants in common; "and for default of such issue, then to the issue of my sisters, S. S., I. W., B. E., and I. M. in tail in such manner as I have limited the same to my said niece S. E.'s issue; and for default of such issue, to remain to my own right heirs for ever." The Court was of opinion, that the testator intended that all his estate should be enjoyed by the issue of his four sisters, so long as there were any such, and in default of such issue all should go over together, and held that the issue of the four sisters took by cross-remainders among each other; relying principally on the words "all his ettate." This judgment was affirmed in Dom. Proc. 1 Dow. 384; but it does not appear on what precise ground; for it was there contended, that the children of the four sisters took as joint-tenants for life with several inheritances, and therefore, that the lessors of the plaintiff, who were daughters of J. W., and the only surviving as well as before, as there was no precedent estate devised to direct it. And he relied on the case in Moor's Reports; * a man, seised of a manor, parcel in demesne and parcel in service, by his will devised to his wife all his demesne lands for her life;
* Fol. 7, cited for another purpose, and commented upon by Vaughan C.J. in
Gardner v. Sheldon, Vaug. 263.
The usual form is, "and in case there shall be a failure of issue of the body or bodies of any of the said daughters, then as to the part or parts, as well accruing and surviv
children of the four sisters (their brother, the only other child, having died without issue) would be entitled by survivorship, without implying cross-remainders. But this point does not seem tenable, inasmuch as the limitation to the issue of the four sisters is in tail in such manner as the testator had limited the same to S. E.'s issue, and that was to the sons successively in tail, remainder to all the daughters in tail, as tenants in common. The reasoning upon the expression "all the estate," &c. is considered not to be satisfactory by Lord Eldon C. 17 Ves. 75, Greein v. Stephens. The case of Doe v. Webb, arose on a clause in the testatrix's will, in which she gave certain premises "to her three daughters, and to the heirs of their bodies respectively, as tenants in common; and in default of such issue to her own right heirs." The Court held, that cross-remainders should be implied notwithstanding the word "respectively." Mansfield C.J. observing, that "if the word were omitted, the sense would continue the same; for a devise to two as tenants in common, and the heirs of their bodies, must necessarily mean, and to the heirs of their respective bodies." The same point was determined by Lord Eldon C. in Green v. Stephens, which case is particularly strong, because the testator had omitted the word in one clause of his will and inserted it in another, from which circumstance an argument was raised that he meant to make the distinction. The clauses, which were consecutive, are given in 12 Ves. 419, and are as follows : "To the use and behoof of all and every the daughter and daughters of the testator, and to her and their heirs for ever, as tenants in common; and for want or such issue, then to the use and behoof of the testator's nieces A., S., and I., and their several and respective heirs for ever as tenants in common; and for want of such issue, then to the use of the testator's right heirs for ever." In Cooper v. Jones the testator had three sons, James, John, and George: the words of the will were, "I leave the Withy Stakes Farm, &c. to my two sons John and George, equally between them, share and share alike, and all my household goods, &c. paying all my debts, funeral expences, and legacies hereinafter named; and I entail the Withy Stakes Farm on the male heirs of John Cooper and George Cooper, being born in wedlock." After the death of the testator, George died without issue. The Court held, that his moiety should go to James the heir at law, and that cross-remainders should not be implied, for want of any devise over. [In Livesey v. Harding it was laid down by Sir J. Leach M.R. that where estates tail are devised to more than two persons as tenants in common, and it is manifest that the testator did not intend that any part of the estate should go over, unless there were a failure of issue of all the devisees, there the devisees take cross-remainders: and further that where estates tail are given to two persons only as tenants in common, there cross-remainders between them will be implied, although there is no expressed intention that no part of the estate should go over until the failure of issue of both, unless the limitation to them be successively, severally, or respectively.
In Ashley v. Ashley & testator devised an estate to A. for life, remainder to trustees to preserve, &c., remainder to all the children of A. as tenants in common, and not as joint tenants, and, for want of such issue, to B. for life, remainder to trustees to preserve, &c., remainder to all the children of B. as tenants in common, and not as joint tenants, and for want of such issue, to C. in fee: and Sir L. Shadwell V.C. held that the children of A. took estates for life, with cross-remainders between them, for life, with remainder to B. for life, with remainder to her children, as tenants in common, with cross-remainders between them for life, with remainder to C. in fee. [See further Mr. Butler's note on Co. Litt. 195 b.] 2 Bing. 126, Wollen v. Andrewes. 9 Moore, 248, S. C. 2 Bred. & B. 623, Murthwaite v. Barnard. 2 B. & C. 357, Murthwaite v. Jenkinson. 3 B. & C. 191.]