#### Evans vs. James.

Tj’JECTMENT. The plaintiff derived his title from the will' -*-J of Jonathan Evans^-who devised as follows: “ I give and “ bequeath to my two eldest sons, Reece and David, my* “ plantation, &c, — 320 acres on the river to Reece, and 320 acres il to David; and they to put to school my two youngest sons, and ** to schotl them at their charge.”

The plaintiff’s counsel contended, that Reece and David took as joint tenants for life, and as David died first the whole life estate went by survivorship to Reece, who %vas the eldest son of their father, and that on his death the estate in fee descended on Jonathan, the eldest son of Reece, and heir at law of the devi-ser. It was stated in evidence that Daviddiedin 1781. Reece died in 1785, leaving a son Jonathan, who took possession after • Reece’s death, by putting his stock of hogs and cattle on the land. Jonathan was an infant for many years after Reece’s death ; the ■remaining brothers of Reece, and uncles of Jonathan, said to defendant, James, in Í795. They never claimed title before, nor were they at any time in possession, nor was any person in possession but Jonathan, until James the defendant entered in 1795; an action was brought in 1796. David left a daughter in ventre sa mere, who was born four months after his death, and died in 1796.' There were two other sons of old Jonathan.

Jocelyn^ for the plaintiff.

The devisees, Reece and David, were joint tenants. 12 bio. 302, 1 Salk. 390. 2d. The devi-sees took an estate for life, only the charge of schooling the two youngest sons is not such an one as will create a fee where otherwise the words would make an estate for life only. Schooling is an annual charge, it is not a sum in gross, for it might be more or less according to future circumstances, as the death of the children, <kc. He cited Gilbert on Devises, page 19, and said it was payable out of the profits.

Wright, e contra.

The devisees took estates in severalty — . All estates are so unless expressly made otherwise j no such expression is here ; on the contrary, Recce is to hold 320 acres on *153ú.c river, which is a particular designation oí" tbs spot \iví¿ iur him ; and the rrt'.'Lifer of concequence fails £■> David; have hu unity of possesion so averted to a jointenancy. M.Q* 320= i Salk. 390 .support the position laid down by ns when compared with the words of our will; besides the constructiov of deeds and of wills is materially different 5 tfe: one is construed tin 1st strictly against the grantor, the other according to the intent ci the testator ; that was in our case most evidently to create nu estate in severalty or at least in common. As to ihe nest qties» tioa this is an estate in fee in the devisees 5 the charge is net expressed to be payable out of the profits. It is expressly s.fed at '.heir cram charge* He cited Cro. li. 378. 2. Cro. <527. 6 Hep. 1C, 2 Lev. 249. Co. Litt. 9, 6. 3 Burr. 1533; all these t<ises> prove that where a charge is laid on the devisee which is not to be paid out of the profits, that he has afee : here the charge cannot be out of the profits because the plantation is devised to the mother for life ; she might have lived longer than the devisees and the schooling must necessarily be defrayed by monies of their own.

Jocelyn in reply.

It is uncertain how much is to be paid — —ifi ys not a gross sum. — It may come out of the profits. — It is to be paid’ aftnually. — 'The fee only arises when a sura certain is to bis paid. If either of the youngest sons die, or both, the charge fails either wholly or in part 5 it depends on a contingency whether the devisees will have any thing to pay. There is no latent .expressed or to be collected from the will to pass a fee.

¿fall, Judge.._

Let the jury give a special verdict. — [They did so, and afterwards he delivered his opinion.^ — If the charge is saca that the devisee may sustain a less by paying it, supposing him to have a life estate only, he shall in such case takes a fee. Especially in a case like this, where intending an estate for life to the mother he expressly limits a life estate, which shews he knew hot? to limit for life when he intended it0