case holms against MAYNELL Trinity term car roll refer to Taafe v Conmee h l c  if a testator devise all his land to a and b his two daughter and their heir  equal to be divide betwixt they and if they die without issue then to his  nephew c and the heir male of his body the daughter have several estate tail  by moieties but on the death of one of they without issue her moiety shall not  go immediate to the nephew but shall remain with the survive daughter by way  of cross remainder SC Jones SC ray SC Pollexf SC skin ejectment special  verdict Isaac Maynell devise all his land to Elizabeth Maynell and whether  Maynell his two daughter and their heir equal to be divide betwixt they and if  they die without issue then to my nephew Francis Maynell and the heir male of  his body with diverse remainder over one of the daughter die without issue the  question be whether this remainder to Francis Maynell shall take effect  immediate for a moiety or shall wait till the death of both daughter without  issue Mr finch for the plaintiff these word must be take distributive as if  two tenant in common join in a grant of a rend though the word be joint the  grant be double and they ought to be take discretive as be the case of ayler v  Chep a one devise his land to his two son and to the heir of their two body  and say that his executor shall have his land till they come to their several  age of twentyoneyears one attain the age of twentyone year and it be hold that  that son may enter for the word be till they shall accomplish their several  age I e To give back one one when either come to the age of twentyone year he  shall have his part b and if it shall be otherwise then the survive daughter  will have a a but see Mod a cro James SC Brownl Yelv Bulst Eq Abr b see  davenport v oldis atk shower KB er p remainder in the other part by  implication whereas estate make by implication be never favour in law and  never allow but for necessity as if a term be devise to a stranger after the  death of the devisor wife if there be no more she shall have no estate but if  it be to executor after his wife death there of a necessity the wife have a  estate for life because there be none else to enjoy it and the testator plain  say the executor shall not have it till after her death and here be nothing  find in this verdict that shall induce a belief that the testator intend any  such thing as cross remainder they have several shower KB freehold and several  inheritance the subsequent word therefore shall be several he have express  give they a estate tail and that in severalty and therefore no estate by  implication for the law never create a estate by implication where the party  have give a express estate clark case c be express so and roll title remainder  r Leon d Mr pollexfen for the defendant argue that he in the remainder can  take till they die I e both here the first word do original give they a fee  but then come those other word and if they die without issue then the sole  reason why this be construe a estate tail be that pursuant to the party  intention be in remainder may be let in and therefore it will be hard to  stretch it any further for his advantage who have nothing but by a stretch we  must never make a distribution to destroy but only to serve the intention e  there be a vast difference where the devise be to three and where only to two  no cross remainder shall be admit in case of three because it be uncertain to  which of the survivor it shall go on the death of one he cite Gilbert v withy  f corbet case g full v full h and the case of coal v leviston where this very  point be adjudge by Lord hale and this difference allow good I this case be  argue again but I hear they not but in Michaelmas term follow sir Francis  Pemberton be then chief justice deliver the opinion of the court in these word  or to the like effect the case arise only on the clause of the will and the  question be whether Francis Maynell the remainderman shall have any estate in  part of the land on the decease of one daughter without issue during the life  of the other sister and we be all unanimous of opinion with the defendant for  we take it here that the lessor of the plaintiff be to have no estate till  both daughter be dead without issue for it be in the case of a devise we must  be rule and govern by the intention of the party whether there be any word  legal to carry it or not the case of Henry pl seem to make this out very plain  for there a man devise his land to his shower KB heir after his wife decease  and it be hold that his wife have a estate for her life this can be but dark  collect from the word and yet they take his intent and meaning to be so here  be a plain intention that Francis shall have nothing till both child be dead  and it be such a intention as both nature and prudence direct a man by nature  be to provide for his child before any other beside any other construction  will be a violence to the very word themselves for it be if they die I e if  they both die c the case in Leonard king be a case in point and this be very  much strong than that for there be a devise of several parcel of land to two  son several and then it be if any of they die c l I confess it to be a  anonymous case but I do not find any book to impugn or contradict that  judgement there be the case in more be Rep and Higham v baker cro Elizabeth  glover v latch c dyer see Jones d see Caubec v hill stram b r u William v  brown stram pery v white Cowp e king v rumball cro James Coundens case hob f  cro James roll Rep Eq Abr g ander h cro Elizabeth I mich term car keb SC keb  SC vent but see as to this point the authority cite at the end of the case  king Leon see coke v Gerrard sand cro James shower KB er p Frenchans case dyer  m all of the same import I take that of more and crook to be all one though in  the first book it be Anonymous they be to a man and the heir male of his body  and if he die without issue of his body c his heir female shall not take by  this devise and this be plain accord to the intention of the party devisor and  no way contrary to this judgement dyer as to the case of Bryon v Cauzon n  there be no colour why our case shall be affect thereby and I have hear great  opinion against the law of that case but take it as you will there the opinion  be that where the party have express his mind in particular limitation over on  condition there they will not find our remainder by implication which imply  that if there have be no cross remainder express there shall have be some by  implication the case of Johnson v smart oh seem the strong case against we  there a devise be to two for their life remainder to the two son equal to be  divide and to their heir and each to be the other heir and if they die without  issue then to remain to a three person it be say there that on the death of  one without issue his part shall go to he in remainder if there be such a case  I think the law be quite otherwise but I believe he take it at second hand  shower KB for he be scarce of age sufficient to report at that time and in  truth as I have see by a manuscript show I by my brother dolben it be the  opinion of the court upon evidence in a trial at common plea bar there be  nothing of a devise in the case for it be if a copyholder shall make a  surrender to the use of a and b his two son and if one die without issue the  other to be his heir and if both of they die without issue then to c in tail  and the court be of opinion that if a die without issue b shall be seize in  tail thereof and that during the life of b it shall not go to the stranger so  that this be a very strong case for we and quite mistake by Mr roll the case  of Gilbert v withy p accord to the account that Doddridge justice give of it  be by no mean to be cite for the plaintiff two cross remainder will very well  stand together but otherwise in case of three for that will make such  confusion as the law abhor and that be the reason of the judgement in that  case and I take it to be sound law Q these be the principal if not all the  case that be cite and I think none of they will impugn our judgement but it be  agreeable to the rule of law and here be a pregnant intention with the  plaintiff the Lord hale declare himself of this opinion and take a mighty  difference between the case of a devise and of a conveyance at law judgement  for the defendant