ftock to trustees, to be laid out in the purchase of land, to be fettled to the use of the husband and wife for their lives; and, after the death of the survivor, to the ufe of all the children male and female of their bodies, equally, as tenants in common, and their respective iffue; and, for default of such children and their issue, to the use of the heirs and affigns of the furvivor of the husband and wife.

Lord Camden faid, "he was clear there could not "be cross-remainders by implication in a deed; that "this was not the cafe of a fettlement compleated, "but of articles executory. By the first part of the "articles, which confidered the fund as money, no"thing was to go over till the children were dead "without iffue: this would affift him in conftruing "the limitations of the land. As the furvivor of the "husband and wife was to take nothing in the money, "till all the children were dead without iffue, fo, "they should not take any interest in the reversion of "the land, but in the fame way."

His Lordship decreed, that there were crofs-remainders.

Richmond's
Cafe, Coll

347.

§ 60. By articles of agreement, made between Duke of Charles Duke of Richmond and William Earl of Cadogan, previously to the marriage of Lord March the Jur. Vol. z. Duke of Richmond's eldest fon with Lord Cadogan's daughter, Lord Cadogan covenanted to lay out 60,000 1. in the purchase of lands, to be fettled on Lord March and his intended wife for life, remainder to the children

VOL. IV.

Hh

of

of the marriage, as the father and mother fhould ap. point, and, for want of appointment, to all the children, (the eldest excepted), equally to be divided be tween them, share and fhare alike, as tenants in com, mon, and not as joint-tenants, and to the feveral and respective heirs of their respective bodies iffuing; and, for want of fuch iffue, to the ufe and behoof of fuch eldest fon in tail, remainder over.

Lord March, who was afterwards Duke of Rick mond, had iffue by this marriage an eldeft fon, and fix younger children; but no appointment was made.

By a private act of parliament, the lands, purchased with the 60,000 l., were vefted in the eldest son, upon his engaging to pay the portions of the younger children; and, in this act, it was recited, that the younger children were entitled to the lands under the marriage articles, as tenants in common in tail, with cross-remainders of their refpective fhares.

One of the younger children died under the age of 21 years; and the queftion was, whether the portion of the child fo dying became vefted in the furviving younger children, or went to the eldest fon.

Lord Chancellor Apfey decreed, that the words of the articles imported, that crofs-remainders fhould be limited to the younger children; it being perfectly plain, that the eldest fon was never intended to take any fhare of the 60,000 l., fo long as there remained a younger child in being to take: for, if there had

been

been one younger child only, that child must have taken the whole.

§ 61. With respect to the words which are neceffary to create a condition, Lord Coke fays, the proper ones are fub conditione, upon condition; but there are feveral other words and modes of expreffion that will create a condition, if it appears to have been the intention of the parties to give them that effect.

What Words dition.

create a Con

1 Int. 202 6.

§ 62. The word provifo, provided always, &c. will 2 Rep. 70 b. also create a condition; but where it is used to make an estate conditional, three things are to be obferved; ift, That the provifo do not depend on another fentence, nor participate thereof, but ftand originally of itself. 2d, That the provifo be the words of the bargainor, feoffor, donor, &c. 3d, That it be compulfory to enforce the bargainee, feoffee, donee, &c. to do an act.

S 63. Lord Coke fays, if a man by indenture lets 1 Inft. 203. lands for years, provided always and it is covenanted and agreed between the faid parties, that the leffee shall not alien. It was adjudged, that this was a condition by force of the provifo, and a covenant by force of the other words.

407.

$ 64. Where a leafe was made by indenture with Roll. Al. this claufe, and it is covenanted between the parties, or, it is agreed between the parties, that the leffee shall not do a particular thing upon pain of forfeiture of the eftate. This was adjudged to be a good condition.

$ 65. So, where a leffee covenanted and granted with the leffor, that he would not grant, affign, or fell the land to any perfon, upon pain of forfeiture of the term, this was deemed to be a good condition.

§ 66. But a provifo added in the end of a covenant, extends only to defeat the fame covenant; unless there are words quod tunc, the grant fhall be void.

§ 67. A leafe was made of a farm, except the wood, and the leffor covenanted, that the leffee should take all manner of underwood; provided always and the leffee covenants that he will not cut any manner of timber trees. This is no condition, being but a declaration of what wood he was to meddle with.

S 68. A leffee for years covenanted, that if he, his executors, or affigns, fold the term, that then the leffor might re-enter. This was held not to be a condition, for all conditions ought to be referved and made on the part of the leffor, donor, &c.

§ 69. But where A. made a leafe to B., wherein it was covenanted between the faid parties, that if it happened the faid rent was behind for fix weeks, then it should be lawful for A. to re-enter. Dyer held, that these words made a condition, because they were the words of the leffor, as well as of the leffee.

§ 70. It has been already ftated, that no precife technical words are required to make a condition precedent or fubfequent, as the conftruction must always be founded on the intention of the parties.

$ 71. There

§ 71. There are many cafes in which clauses that appear to create a condition operate as limitations.

Thus, Lord Coke fays, if a man makes a lease quo- 1 Inft. 214 b. ufque, that is, until J. S. come from Rome, this is a limitation, and not a condition.

So, if a man makes a lease to a woman quamdiu cafta Id. vixerit, or if a man makes a lease for life to a widow, fi tamdiu in pura viduitate viveret, or if a man makes a lease for 100 years, if the leffee live fo long, these are limitations, and not conditions.