What are known as cross remainders are remainders which, after the limitation of particular estates to two or more persons, either in undivided shares in one piece of land, or in separate pieces of land,65 are so limited that upon the expiration of the particular estate of any one of such persons, the right to the possession of that share, which was previously vested in him or his successor in interest, will be vested in the other or others of such persons, or his or their successors in interest, with the result that finally the right of possession will be vested exclusively in one of such persons or his successor in interest, as ultimate remainderman, the estates of the others having come to an end.

As a simple instance of cross remainders, may be mentioned the case of a gift to A and B for their respective lives, or in fee tail, with remainder to A in B's share, and remainder to B in A's share. If the limitation be to A, B, and C, for their respective lives, with cross remainders between them, upon the death of A the right of possession as to A's share will pass to B and C, and upon the subsequent death of B, the right of possession as to that share, and also as to B's share, will pass to C.

64. On this theory, that a contingent remainder cannot divest a vested estate in fee simple, it has been suggested that if, after what would otherwise constitute the limitation of a contingent remainder in fee simple, there is by the same instrument a gift of a vested estate, the first limitation must be regarded as an executory devise or shifting use. 1 Preston, Estates, 83, 502; 4 Jur. N. S. pt. 2, pp. 108, 121, 133, 157, 180. As remarked by Professor Gray, however, such a view is negatived by the case of Egerton v. Massey, 3 C B. N. S. 338.

65. Challis, Real Prop. 339; 1 Preston, Estates, 94 et seq.

R. P.-33

While the effect of the creation of cross remainders, as between persons who are given particular estates for life, is that the survivor or survivors take by way of remainder, if the gift is of particular estates in fee tail, the right of possession does not, upon the death of one, vest in the other or others, but it awaits the failure of his issue, and then it vests in the others named in the gift, or in their issue.66

In a deed, cross remainders can be created only by express limitations;67 but even there no technical language is necessary to create them, it being sufficient to say that there shall be cross remainders.68 In a will they may be implied, and their implication, if justified by the language of the devise, will usually be favored, since this is more likely to be in accordance with the testator's intention than that, upon the termination of a particular estate in one share, the right of possession as to such share should vest in his heirs or residuary devisee till the termination of the other particular estates.69 So, where land is devised to certain persons for their several lives, and, after their deaths, or after the death of the survivor of them, to other persons, the persons first named prima facie take cross-remainders, and the possession of the property does not go over to the other persons until the death of the last survivor of the first named persons, an intention to bring all the property together in him being presumed.70 And where lands are

66. Challis, Real Prop. 339.

67. Co. Litt. 195, Buller's note; 4 Cruise, Dig. tit. 32, c. 21, Sec.Sec. 60-62; Doe d. Tanner v. Dorvell, 5 Term R. 518; Bohon v. Bohon, 78 Ky. 408. But see cases cited in note 30, Harv. Law. Rev. at p. 187.

68. Doe d. Watts v. Waine-wright, 5 Term Rep. 427.

69. 2 Jarman, Wills, c. 42; Asheley v. Asheley, 6 Sim. 358; Lillibridge v. Adie, 1 Mason, 224; Hungerford v. Anderson, 4 Day

(Conn.) 368; Smith v. Usher, 108

Ga. 231, 33 S. E. 876; Bohon v. Bohon, 78 Ky. 408; Hoxton v. Archer, 3 Gill. & J. 199; Henry v. Henderson, 103 Miss. 48, 60 So. 33.

70. Ashley v. Ashley, 6 Sim. 358; Glover v. Stillson, 56 Conn. 316; Smith v. Usher, 108 Ga. 231; Dow v. Doyle, 103 Mass. 489; Kerr v. Verner, 66 Pa. St. 326. The authorities bearing on the question of when cross remainders will be implied as between life tenants devised to several persons, with a limitation over to another on an indefinite failure of their issue, cross remainders are implied, giving a right of possession to the others of such persons, after the termination of the respective estates tail in each by the failure of his issue, provided, of course, estates tail are, in that jurisdiction, to be regarded as existing under such circumstances.71

Cross remainders are ordinarily vested and not contingent,72 but they may be contingent, as in the case of such remainders in favor of the members of a class, no one of which is in existence.