of the body of the said A. B. by the said C. D. lawfully begotten; severally, successively, and in remainder, one after another, as they and every of them shall be in priority of birth; and of the several and respective heirs male of the body and bodies of all and every such son and sons lawfully issuing; the elder of such sons, and the heirs male of his body issuing, being always preferred, and to take, before the younger of the same sons, and the heirs male of his and their bodies issuing and for default of such issue, &c. 38. In a modern case, there was a limitation in a feoffment to the use of Nicholas Smyth for life, remainder to the use of the first son of the body of N. Smyth lawfully issuing; and for default of such issue, to the use and behoof of the second, third, fourth, and all and every other son and sons of N. Smyth lawfully issuing, severally and successively, &c.; and of the several heirs male of the body and bodies of all and every such son and sons respectively issuing, &c. Upon a case sent from the Court of Chancery to the Court of Common Pleas, respecting the estate which the eldest son of N. Smyth took under his limitation, Lord Chief Justice Eyre said "I think this is one of the clearest cases I ever saw; there is a demonstration plain on the face of the feoffment, that it was the intent of the parties that an estate tail should be limited to the eldest son of N. Smyth. The argument on the part of the defendant has occasionally shifted; sometimes admitting the intent, but contending that the words used were not sufficient to effectuate that intent, which I thought was the true way of considering the question; and sometimes denying the intent itself. But no man can read this deed without seeing the intent I have mentioned; though by some strange blunder, the usual words are omitted. If, indeed, it had stopped at the limitation to the first son of Nicholas, I should have agreed with the counsel for the defendant; for it certainly does not follow, that because we can see an Owenv. Smyth 2 H. Black. Rep. 594. Ante. intent on the face of a deed, therefore that the words used are sufficient to effectuate that intent. But the intent here does not rest on the first expressions; but the other part of the deed respecting the trusts and other limitations, refers to an estate tail in the first son of N. Smyth. The intent then being plain, the question is, whether we can find sufficient words. I, for one, adhere to the rule which forbids the raising estates by implication in deeds, and think that we ought not to grant the same indulgence to inaccuracy, in the construction of deeds, as we do in wills. But here it is not necessary to resort to implication, or to inquire whether the same latitude is to be allowed to conveyances to uses, as to wills; for here there are strict technical words, capable of being applied to the limitation of the first son of the body of N. Smyth, so as to give him an estate tail. The limitation is to the first son, and for default of such issue, the whole line of sons is taken in, without any particular limitation to them, and the heirs of their bodies nominatim; but it is to the several heirs male of the body and bodies of all and every such son and sons respectively issuing. Fortunately it is not said, to the heirs male of the body and bodies of such second, third, and other sons, &c. If it had been so, it could not perhaps have been got over. But the limitation is to the heirs male of the body and bodies of every such son. Now the case of Doe v. Martin is an authority to warrant the application of those words to the limitation of the first son of N. Smyth, as well as to the others. But this case is stronger than Doe v. Martin; for it does not even require the assistance of punctuation. Upon the whole, therefore, it is clear that the plaintiff took an estate tail under the limitation in the deed to the first son of the body of N. Smyth." The other judges concurring in this opinion, the Court certified that the plaintiff, who was the eldest son of N. Smyth, took an estate tail in the lands in question. create an estate 39. With respect to the words that are necessary to What words create an estate for life, those usually inserted for that for life. purpose, in deeds, are, "To hold to the said A. B. and his assigns, for and during the term of his natural life. But it has been already stated that if lands are conveyed to a natural person, without any words of Ante, c. 19. limitation whatever, he will take an estate for his own life; unless the grantor be only tenant in tail, or tenant for his own life, in which cases the grantee will take an estate for the life of the grantor only. Heathcote, 40. Under a limitation to the father for life, remain- Fitzherbert v. der to his issue male, and for want of such issue to the 4 Ves. 794. father in fee; Lord Bathurst held that the issue only took estates for life in conformity to the opinion of Mr. Fazakerly and Mr. Wilbraham, to whom the case had been previously referred. create an estate 41. Estates for years are usually created in deeds What words. by the words, "To hold to the said A. B. his executors, for years, or at administrators, and assigns, from the day of the date will hereof, for and during, and unto the full end and term of twenty-one years thence next ensuing, and fully to. be complete and ended." But any other words showing the intention of the parties, will be equally effective. 42. The technical words for creating an estate at will. Lit. § 68. are, "To hold to the said A. B. at the will of the lessor." 43. With respect to the words which are necessary to create an estate in joint tenancy, it has been already stated, that where lands are granted to two or more persons, except husband and wife, to hold to them and their heirs, or for the term of their lives, or for the term of another's life, without any restrictive, exclusive, or explanatory words; all the persons to whom lands are so given take as joint tenants. What words create a joint tenancy. Tit. 18. c. 1. Clerk v. Clerk, 2 Vern. 323. Everett, 44. A man conveyed his house and farm to trustees, upon trust that his sisters might inhabit the house, and equally divide the rents and profits between them; 1. Ld. Raym. and the whole to the survivor of them. Resolved, that 422. this was a joint tenancy; for although the words nt e, § 40. Stratton v. equally to be divided, sometimes in a will make a tenancy in common, yet the limitation to the survivor will oust such a construction, even in a will. 45. In the case of Fitzherbert v. Heathcote, a limitation to the issue male was held to create a joint tenancy for life. 46. Where the words of a settlement were, "to permit all and every the children to take the rents to them and their heirs for ever," they took as joint tenants. 47. A settlement was made before marriage, in trust to permit the husband to take the rents for ninety-nine years, if he should so long live, and after his decease, to permit the intended wife to take the rents for her life, for her jointure; and after the decease of the survivor of them, upon trust to permit and suffer all and every the child and children of the body of the husband, by the wife, to take the rents of the said premises, to them and their heirs for ever, in such shares and proportions as the husband should appoint; and for want thereof, in trust to permit and suffer all and every such child and children to receive and take the rents and profits of the said premises, to them and their heirs for ever. There were three children of the marriage, who survived their father and mother, and no appointment was made. The question was, whether the three children took as joint tenants, or tenants in common. Lord Thurlow declared that according to the true construction of the settlement, the estates comprised therein were to be considered as settled on the children of the marriage in joint tenancy, subject to the power of appointment, which was never executed. On an appeal it was contended, that the purpose of the settlement was to make a provision for all the children of the marriage, and it must have been intended to make as beneficial a provision as possible. Under the first clause they would take as tenants in common. The intention of the second clause was to regulate the proportions, not to turn them into joint tenants. The estate was first given in shares and proportions; then the father was to regulate their shares; then the settlement directed how the rents and profits were to be paid, if there were no appointment. The second clause made no new provision. The heirs and assigns of the husband were not to take till all the children of the marriage were dead without issue; it was therefore intended that the children of a child who should die in the lifetime of the husband, or his wife, should be let in to take and in order to effectuate this purpose, the children must take as tenants in common. One word in the settlement implied this intent very strongly it was the word every, which implied in a degree severalty; that each should take something to him and his heirs for ever; and the same word being repeated in the second clause, where it was unnecessary if they were to take as joint tenants, showed the intention to be, that the children should take in severalty. The course of recent determinations was against estates in joint tenancy, and to favour tenancies in common and the Court had taken hold of any words it could for that purpose, wherever it was possible to discern an intention that the estates should be in common, and not in joint tenancy. On the other side it was said, the objection taken from the word every was of no avail; that word was used in all cases where joint tenancies were raised. Supposing the words giving a power of appointment had even been express, as tenants in common, and not as joint tenants, that would not have affected the clause upon which the question turned; for the former clause never operated, the father having made no appointment. It therefore came to the subsequent clause; "and for want thereof, to permit all and every such child and children to take the rents, &c. to them and their heirs for ever;" not in shares and proportions; not equally to be divided, or accompanied by any words to make a tenancy in common: without such |