1828. Jackson v. Strang. of the testator, when he gave the estate to his surviving son, August Term in case the other died without lawful issue. And the Chancellor, in his opinion, in the court for the correction of errors, observes, that the use of the word survivor in the first limitation, and the absence of that term, or any words of similar import in the last, formed a strong distinction between the two devises, and that the court in deciding that the estate of Joseph was not a fee tail, by no means determined that the estate of his surviving brother was not such an estate. 'These cases upon the will of Eden, therefore, taken together, appear to me to oppose no obstacle to our construction of the will under consideration. In this will the devise to the two daughters is in fee; and the ulterior limitation to the mother is upon the death of both of them, (as we construe the contingency) without lawful issue; upon that limitation the question in this case arises. It is clear that the estates of both the daughters must terminate before the ulterior devise to the mother can take effect, and it is equally clear, that to give opinion and validity to the devise over to her, the preceding estate of the daughters must be held to be in fee-tail. And unless the terms of the first limitation between the daughters precludes it, that construction ought to prevail, as it so fully effectuates the manifest intention of the testator, in favor of the declared objects of his bounty. Now the devise over upon the death of one of the daughters to the other, is not in express terms, nor, as I conceive, by necessary intendment, to the surviving daughter, The words are, "if one of them should die, the property to descend on the other;" and these words, understanding the testator to refer to a dying without lawful issue, do not necessarily restrict the contingency to any particular period of time, but more properly import a failure of issue, whenever it may happen, as the contingency upon which the estate is to go over. It is more analagous to the case of Holmes v. Meynel, [T. Ray, 452.] than to that of Jackson v. Anderson. For the case of Holmes v. Meynel, the devise was to the daughters of the testator and their heirs, equally to be divided between them; and in case they should happen to die without issue, a devise over to F. And the court held that the daughters took several estates 1828. Jackson v. Strang. August Term tail, and when the issue of either should fail, the other would take by way of cross remainder in tail. So in the case now under consideration, the devise, as we understand it, is to the two daughters in fee, and if one of them should die without lawful issue, the state to descend, or accrue to the other; by which devise, the daughters, upon the principle of the last cited case, took estates tail, with cross remainders in tail, upon the failure of issue; and upon that construction, the ulterior limitation to the mother was in fee, upon the termination of the estates tail, of the daughters, and all the provisions of the will would have their effect, and be satisfied. But it was said, that if the limitation in question created estates tail in the daughters, the statute turned them into estates in fee-simple. If those estates had fallen into possession, and the daughters, or either of them, had become seised in fee tail, such might have been the consequence. But the provision of the statute is, that when any person would, if that statute and the act to which it refers, had not been passed, have become seised, in fee tail of land, &c. by virtue of a devise, &c. such person, instead of becoming seised thereof, in fee tail, shall be deemed and adjudged to become seised thereof in fee-simple, absolute. In this case there was no previous estate for life, in the widow, and the devise of the estate tail to the daughters was in remainder. They could not become seised of the land in fee tail, until the death of the widow, and the estate tail could not, during the existence of her life estate, and before the daughters became seised of the land, be converted by the statute into a fee simple. I have not entered into an examination of the cases cited by the defendant to show that the contingency, upon which the limitation of the fee to the wife was to take effect, is the death of the daughters in her lifetime. But it may be proper to observe that in those cases, the limitation to the ulterior devisee was upon a contingency expressly declared by the testator, or resulting by neceessary intendment from the will; and no room was left to the court for construction. The rule that no implication shall defeat an express limitation applied, and the court was bound to 1828. M'Geehan give effect to the will of the testator, when clearly expresed, August Term Judgment for the defendant. [R. Lockwood, atty. for plff. J. Anthon, atty. for deft.] NEAL M'GEEHAN versus BRIDGET M'LAUGHLIN. In assigning breaches, in an action of covenant, it is sufficient, in general, to follow and negative the words of the instrument declared upon. a COVENANT, upon special agreement, for the use and occupation of a house during the term of three years. In addition to other and ordinary stipulations, the instrument provided, that the defendant should pay the plaintiff "for all necessary repairs put upon the premises" during the term aforesaid. The breach assigned in the declaration was, that "the defendant did not, nor would, "after the said agreement, and during the said demise, and "whilst she was possessed of the said demised premises, with the "appurtenances as aforesaid, pay, or cause to be paid, to the said " plaintiff, the repairs that became and were necessary to the said " premises, and that were made upon the said premises, by the " said plaintiff, after the making of said deed." The defendant demurred to the declaration, and Mr. J. Anthon, in support of the demurrer, contended, that there was nothing in the breach assigned to show that the defendant had not kept her covenant. [He cited 1 Esp. N. P. pt. 2. p. 158. 3 Caines' R. 196. Treadwell v. Steel, Marston v. Hobbs. 2 Mass R. 433.] Mr. D. Graham, contra, for the plaintiff, contended, that the i August Term breach being assigned by negativing the words of the covenant 1828. was sufficient, and in accordance with the general rule of pleading. [He cited the case of Marston v. Hobbs, and Muscott v. M'Laughlin. Bartlett, Cro. Jac. 369.] M'Geehan V. II. If the breach is not sufficiently assigned, the objection is not available on general demurrer. [Steph. on pl. 159. 162.] JONES, Chief Justice, delivered the opinion of the court. This is a general demurrer to a declaration in covenant, by the lessor against the lessee, upon an indenture of lease, for not paying the plaintiff for necessary repairs put by him upon the premises, and which the defendant was to pay for according to the terms and effect of the covenant of the defendant, the lessee, in the lease contained. The objections taken at the bar to this declaration, in support of the demurrer are, that it does not appear by way of allegation or averment, that any repairs were necessary, or that the plaintiff either made any himself, or paid for the making of any repairs whatever. The defendant contends that it was optional with her, by the covenant, to repair the premises, or pay for the repairs of them, but insists that if her obligation was to pay for repairs to be made by the plaintiff, the declaration ought to show clearly that repairs were necessary, that the plaintiff made them, and what they cost him. The declaration states the covenant to be, that the defendant should pay the plaintiff for all necessary repairs put by him upon the premises, and avers that the defendant entered in and upon the demised premises, and was possessed thereof under the lease, and that she did not, during the demise, and whilst she was possessed of the premises, pay, or cause to be paid to the plaintiff the expense of the repairs that became and were necessary to the premises, and that were made upon them by him after the making of the deed. This assignment of the breach, the plaintiff alleges to be sufficient on the ground that it is in the words of the covenant. The sufficiency of such an assignment, as a general rule, is not denied ; but the defendant contends, that this is not a case for the application of the rule, and insists that an assignment in these general terms 35 August Term 1828. M'Geehan v. M'Laughlin, does not show a breach of the covenant. If the assignment in its |