of an intestacy; the intendment being, that the testator had in mind those whom the law recognises as next of kin (a). So where, after a devise to a person for life, the remainder is limited to his heirs, or the heirs of his body, the remainder will be held to vest immediately in the tenant for life, and give him an estate in fee, or in tail (b). But, on the other hand, if, in the former of these cases, the word "relations" be shown from the context to comprise persons who would not take under the statute, or to exclude others who would (c); or in the second, that the term “heirs” [*]was used as synonymous with children (d); the technical signification of these expressions will be rejected, and make way for a construction which corresponds with the testator's intention. VI. Presumptions originating in the policy of the law constitute the last division proposed to becon. sidered in the present chapter. The instances adduced were, the presumption in favour of cross remainders, when land is devised between two persons as tenants in common in tail, and the contrary when between more than two; and the presumption that money borrowed by a husband and wife, on security of the wife's estate, is appropriated exclusively by the husband. (a) Rayner v. Mowbray, 3 Bro. C. C. 234; Pope v. Whitcombe, 3 Mer. 689. (b) See 2 Lord Raym. 873; 4 Burr. 2579; and Fearne on Cont. Rem. 156, et seq. (c) Greenwood v. Greenwood, 1 Bro. C. C. 32, n; Smith v. Campbell, Coop. 275; 19 Ves. 400, S. C. (d) See the cases collected in Fearne on Cont. Rem. 153, et seq.; and particularly those respecting executory trusts, p. 90, et seq.; also Crump v. Norwood, 7 Taunt. 362; and Doe v. Ironmonger, 3 East, 533. It should be premised that cross remainders are never raised by implication in deeds: and the reason for the distinction in this particular between deeds and wills is, that a will is considered to be made at a time when the testator is inops consilii, but a deed to be prepared after due deliberation, and with the advice and assistance of persons skilled in the law ;-that deeds, therefore, are to be construed strictly ;-wills, according to the apparent intention. The presumptions in favour of and against the raising of cross remainders in devises, under the different circumstances above recited, appear to [*]have arisen from the ancient laws respecting feudal inheritances. The negative implication, where the devisees are more than two, Lord Mansfield observed (a), was established to prevent the splitting of freeholds; for admitting the contrary doctrine, not only would the original portion of each tenant, but also (as was probable). the accruing shares, become severally divisible, on his death without issue, among the other devisees or their respective descendants. An additional reason, it is elsewhere said, consisted in the uncertainty, as to what interests the survivors would take in the accruing shares; that is, whether they would be entitled as tenants in common, or as joint tenants; and whether for life, in tail, or in fee.(b) Respecting the ground on which the presumption (a) See Cowp. 800; 2 East, S. C.; see p. 455, ib.; also 2 Roll. Rep. 281; and 1 Saund. by Serjt. Wms. 185 a, n. 6. 48, n. (b) Holmes v. Meynel, Sir T. Jones, 172; Sir T. Raym. 452. in favour of cross remainders rests, where the devisees are only two, nothing positive has been delivered. If, however, in the preceding case, the presumption against cross remainders sprung from a desire to prevent the splitting of freeholds; it seems not improbable, that the inclination to support cross remainders, in the present instance, might originate in the advantages resulting from keeping feuds or fees entire, in the hands of single proprietors.. The distinction, it is proper.to remark, between cases where the devisees are only two in number, and where more than two, exists perhaps, now rather in [*]theory than reality. It is true, the distinction is frequently adverted to, and always recognized as valid (a) but it does not seem to be ever acted on. From the courts having at first admitted, that the presumption, whether favourable to or opposing cross remainders, might be answered by circumstances of plain intention; it has ultimately become established, that the testator's meaning is the only thing to be consulted. And the rules deducible from modern cases are, that where the intent sufficiently appears to give the devised estate over to the remainder-man at once and entire, cross remainders shall be implied among the devisees, however numerous (b); but that where no such intent is manifested (c), or where the (a) Cowp. 780. 800; 4 T. R. 713; 2 East, 40; 3 Barn. and Ald. 429. (b) Doe v. Burville, 2 East, 47. n; Phipard v. Mansfield, Cowp. 797; Atherton v. Pye, 4 T. R. 710; Staunton v. Peck, 2 Cox, 8; Watson v. Foxon, 2 East, 36; Roe v. Clayton, 6 East, 628; Doe v. (c) Comber v. Hill, Stra. 969; Davenport v. Oldis, 1 Atk. 579. See also Dyer v. Dyer, 19 Ves. 612; 1 Mer. 414, S. C.; and Jones v. Randall, 1 Jac. and W. 100. estate is not given over (a), cross remainders shall not be implied, though the devisees be two only. The presumption, that money borrowed by a husband and wife on security of the wife's land, is appropriated solely by the husband, results from the nature of the marital right: as the money is under the husband's power, it is considered to be applied exclusively to his use(b). On this supposition is founded a rule [*] in equity-which the unprotected condition of married women obviously renders expedient,-that the husband's property, in cases of this description, shall, as between him or his representatives, and his wife or claimants under her, be first liable to satisfy the sum borrowed, and go in exoneration of the estate actually charged (c). Such at least is the construction, where there are no opposing equities to be consulted. But the rule is not inflexible; for if the supposition on which it rests be contradicted, it will yield to the circumstances, and either totally or partially fail of application. For example: should the loan appear to have been effected for the purpose of discharging debts contracted by the wife dum sola (d); or the money raised to have been paid to her, with the husband's concurrence, for her private use (e); in both of these cases the estate will be adjudged to (a) Cooper v. Jones, 3 Barn. kerville, 3 Bro. C. C. 545. See and Ald. 425. also 2 Atk. 384. (b) See in Kinnoul v. Money, 3 Swans. 208, n. (c) Tate v. Austin, 1P. Wms. 264; Lord Huntingdon's case, 2 Vern. 437; Astley v. Earl Tan (d) Lewis v. Nangle, Amb. 150; 2 P. Wms. 664, n. S. C.; Kinnoul v. Money, 3 Swans. 202, n. (e) See 1 Ves. jun. 188. have been rightly encumbered. Nor, as it should seem, would the determination vary, though the wife, in the latter instance, afterwards gave up the money to her husband (a). A further exception from the general rule is where, shortly after marriage, a sum is raised by mortgage of the wife's land, partly in order to discharge her antecedent debts, and partly for the husband's benefit, and the estate subject to the mortgage is then settled according to articles entered into before the marriage: [*]in this case, provided the money received by the husband do not greatly exceed the amount of the wife's debts, he will not be considered bound, out of his separate funds, to pay off any part of the loan the parties, it will be presumed, had one uniform intention with regard to the whole sum borrowed, namely, that it should constitute a single and unapportionable charge on the property mortgaged (b). (a) Ibid. (b) Lewis v. Nangle, supra. As to the application of payments, and the presumptions arising therefrom, see Baker v.. Stackpoole, 9 Cowen, 420. Niagara Bank v. Rosevelt, 9 Cowen, 409. Mayor of Alexandria v. Patten, 4 Cranch, 317. United States v. et al. 7 Cranch, 572. Field Taylor v. Sandiford, 7 Wheat. 13. M'Gill v. Bank of U. al. 1 Mason, 323. Bank Mann v. Marsh, 2 Braxton v. Souther v. Holland et al. 6 Cranch, 8. United States v. Kirkpatrick, 9 Wheat. 720. S., 12 Wheat. 511. Cremer v. Higginson et of N. A. v. Meredith, 2 Wash. C. C. R. 47. Caines' R. 99. Roberts v. Gamie, 3 C. R. 14. land, 1 Wash. 128. Bacon v. Brown, 1 Bibb. 334. Smith v. Screven, 1 M'Cord, 368. Gwinn v. Whitaker, 1 Har. & Johns. 354. Barrett v. Lewis, 2 Pick. 123. Brewer v. Knapp, 1 Pick. 332. Boston Hat Factory v. Messinger, 2 Pick. 223. Hilton v. Burleigh, 2 N. H. R. 196. |