MOODY VS. ELLIOTT. 293

these estates, it would not do so even in a deed and in a court
of law; but, unquestionably, in a court of equity, and acting
upon a will, it cannot have that effect. 4 Kent, 361.

The words of the devise are, "to be divided equally, share
and share alike," which words, even in a deed, have been con-
strued to create a tenancy in common. 1 Thos. Coke, 773,
note 42. And the cases referred to in the same note show,
that the words, "share and share alike," or "between," or any
other words indicating an intention, that the devisees shall
take several and distinct shares, will make them tenants in
common.

The children, therefore, of the testator, take as tenants in
common, after the determination of the life estate of the widow;

and, as I think, they take this estate for life only—the will
being prior to the act of 1825, chap. 119, and, there being no
words of inheritance or perpetuity, or any other language from
which the intention of the testator to pass a fee, can be clearly
ascertained, which, according to the authorities, is indispensa-
ble, even in the case of a will, where a much more liberal con-
struction is allowed than in a deed or grant.

As, therefore, these parties took as tenants in common in re-
mainder for life only, it follows that the fee was undisposed of
by the will, and, consequently, upon the termination of the
various estates for life, the heirs of the testator would be en-
titled to the possession and enjoyment of the inheritance.

The true construction of this clause of the will in my opinion,
is this. The widow took an estate for life—for a period there-
of, to be held by her, for the benefit of herself and her children,
that is, during their minority. Upon the children attaining
their full age, the widow still living, her estate would continue
until her death, disencumbered of any charge on account of the
children; and upon her demise the limitation over for life to
the children would take effect, and upon their death's the in-
heritance would pass to the heirs at law of the testator, as
property undisposed of by his will.

The Auditor by his report of the 7th of July last, gives to
the children of the two sons of the testator, who died leaving
25*