case barker against giles S c affirm bro p c and ed apply do d Littlewood v  green m W in chancery a devise of land to a and b and the survivor of they and  their heir equal to be divide betwixt they share and share alike S c Peer wms  S c brown p c Robert Barker after legacy c devise all the residue of his real  and personal estate to be lie out in land to the use of Gerrard Barker and  Robert Barker the survivor and survivor of they their heir and assign for ever  to be equal divide between they share and share alike Gerrard Barker die in  the life of the testator and the bill pray on the behalf of Robert Barker that  the real estate of the testator may be make over to he subject to the legacy  lutwych for the plaintiff the defendant insist that the word equal to be  modern report er p vided between they make a tenancy in common the consequence  of which be that Gerrard be dead in the life of the testator and so the devise  of his moiety be a void devise it will descend to the defendant as heir at law  the will express say the estate shall go between they which make a  jointtenancy there be a time when it be hold that a tenancy in common can not  be make by will and it be doubt in dyer but in Ralclifs case Rep it be settle  that modern report they can and the reason be there give that it be mere in  regard to the intention of the party and that intention of the party must be  take off in the case before we by the express direction that it shall go to  the survivor in the case of fisher v wing in Lord chief justice holt time be a  surrender to son and daughter equal c and their heir the judge be divide but  there chief justice holt say that these word do not necessary make a distinct  freehold but the intent of the party in the will these word only say that it  shall be liable to be divide as jointtenancy be lev be cite on the other side  it be cite in salk to my two son and their heir for ever and the long liver of  they to be equal divide between they after the death of my wife hold a tenancy  in common in Salkeld the word their heir come after the word equal to be  divide but the reason there give be that the survivor c be imply in the word  they and their heir and the word equal to be divide be of that force that they  must stand which reason I must submit to your lordship in roll Abr equal to be  divide between they habendum to they and the heir of their body hold a  jointtenancy Mr Cooper on the same side a will be to be construe accord to the  intent of the testator express or necessary imply it be plain upon the whole  will the testator have no regard for his heir at law and do not design he  shall take anything therefore if any part come to the heir it must be through  a defect in the will if the will therefore can be construe to make this a  jointtenancy it be agreeable to the testator intention the will be not to take  effect until the death of the testator and not till then be it complete the  intention therefore must be collect from the circumstance at the time of the  testator death equal to be divide c make tenancy in common only in case of a  will to support the intention of the testator but this be to carry it that  they be word of such force as to destroy the intention and to make the man die  without a will as to one moiety which he have proper devise Mr Talbot on the  same side we be proper to apply here because it be for performance of a  executory trust to be perform by the direction of this court accord to the  intent of the testator which be whole to disinherit the heir at law a very  distant relation it be impossible that the word survivor shall have any other  construction than to make a jointtenancy and with a view that one of they may  die before the whole trust can be carry into execution and in such case direct  to who the land shall be convey to they and their heir in point of law be a  jointtenancy equal to be divide c have be hold to govern that rule of law by  intention of the testator as be rather a strong implication than the former  but here there be a express limitation to the survivor which can be take away  modern report by implication Jointenants to enjoy equal may divide equal Ann  Tuckerman v jeffrys to two to be equal divide during their natural life and  after the death of they two to the heir of one of they hold to be a  jointtenancy for the life of both we be in the case of a executory trust not  of a immediate devise for there have always be hold in article of conveyancer  a difference from the conveyance so of covenant to make a settlement the word  be carry into the intention Wearg solicitor general contra that the testator  intend to disinherit the heir at law may be say against every lapse legacy  when one devisee die he may intend to die intestate as to his moiety there be  no difference between a immediate limitation and a direction for a future  limitation the force of the word will be exact the same it rest only upon this  whether this limitation make a tenancy in common or a jointtenancy equal to be  divide between they have long and often be hold to make a tenancy in common it  be not reasonable to suppose the old shall die and that his child shall not be  provide for but that all shall go to the young of the devisees vent cro  Elizabeth more money receive to the use of a and b equal to be divide between  they the executor of one have the moiety modern report er p Webber style to  wife for life remainder to a b and c and their heir respective for ever hold  tenancy in common king Lord chancellor this be to be consider as a real estate  because it be to be lie out in land and whatever estate will be create by  limitation in a will at commonlaw will be the same at equity the intention  appear in the will must govern the construction and the construction can  reject any word which may stand and only such as be nugatory may be reject  equal to be divide between they share and share alike if the party live must  make tenancy in common the word then have the same meaning though one die no  accident can alter the meaning of the will at the time when make a devise to  two and one die the other take not as survivor but as devisee the testator  intend both nephew shall take as he intend to exclude the heir at law so that  one nephew shall not take the whole but if one die there be a end of his  intent as to he by the word survivor the testator must intend jointtenancy as  by the other tenancy in common these be contradiction and seem as if one set  of word must be reject but if you make they tenant in common of the  inheritance only and make the word equal to be divide between they to refer to  their heir only and jointtenants for life you take in the whole word and make  they consistent with the rule of law the plaintiff therefore must take the  whole for his life as devisee after his death one modern report moiety must go  to his heir and the other to the heir at law of the testator as a lapse legacy  and the decree be accord a see bindon v Suffolk Peer wms haw v haw atk stone v  Heurtley vezey rise v hill burr Wilson v Bailey bro p c a