Bridgman oh davy v kemp S C carter where other point in the cause be also  notice but where the argument of the chief justice be less correct report than  in the manuscript carter state that the whole court agree upon the point in  question in this judgement p a provision in the will rely upon by sir Orlando  in the close of his argument be omit in the ms but it be thus state by carter  p in case my personal estate fall short to discharge my debt and legacy then I  will that so much of land and tenement herein bequeathe to George and  Ferdinando my son as shall be sufficient to discharge they shall be sell Mr  Hargrave state that this case seem to be allude to in scattergood v edge Mod  and in nurse v Yearmouth Mod and holt c j mention it by the name of davis case  Gibb the passage in Lord holt judgement be as follow there be a case in my  Lord Bridgmans time of Davis and it be a devise to two person and their heir  and one of they die during the life of the testator and the question be  whether the survivor shall take the whole or not and it be hold he shall which  show plain it be a will and a disposition from the time of make it Mod a  devise of land to a and b and their heir a die without issue before the  testator who do not republish his will after the death of a b take the whole  of the land in feesimple hark ms No fol Bridgman c j though the action be  bring for the whole land yet there be no question as to one moiety for  Margaret Kemp have make out no title to one moiety all the question be upon  George Kemp the youngers title to the other moiety touch which the first point  be this George Kemp the elder devise the land in question to John Kemp and  Ferdinando Kemp his son to have and to hold to they and their heir for ever  Ferdinando die without issue and then George the devisor die without any new  publication of his will What passes by this will to John it have be argue  first that nothing passes to John at all and that the devise be void pro toto  or secondly if it be good for a moiety to John yet as to a moiety which  Ferdinando shall have have if he have survive his father it shall be void and  this opinion have be strong enforce upon the reason of Brett and Rigdens case  Com a devise be to Henry Brett and his heir and he die before the devisor the  heir shall not take by this devise for though he intend that Bridgman oh er p  the heir shall have it yet his intention primary be Bridgman oh that Henry  Brett shall have it and that he shall have power to dispose of it from his  heir and the word heir be insist not to make they immediate taker but to  express the quantity of the estate which they be to take and it be apply to  the case here where the devise be to two and their heir the primary intent be  that Ferdinando who die shall have have a moiety to he and his heir and which  he may dispose from the heir or from John his brotherand the survivorshipand  that John may take itis but a secondary and consequential intention and though  there be no degree gain by a estate in survivorship for the survivor be in by  the devisor or grantor yet the survivorship if Ferdinando have outlive his  father will have transfer his moiety to John by disposition of law but now if  it be good it must be good as a disposition of the whole to John by the  devisor himself who intend he but a moiety and from hence the argument be also  draw that because it be intend that they shall both take and Ferdinando can  that therefore neither shall take this last I confess be not much press by the  defendant counsel and interfere with the other reason for if the primary  intention be that each of the devisees shall have a moiety there be no colour  of reason why John shall not take a moiety admit he be not capable to take the  other moiety devise to Ferdinando for though then he must be a tenant in  common not a jointtenant which differ from the manner wherein it be intend he  shall take yet that which difference jointtenancy and tenancy in common  videlicet survivorship be but a consequential intent shall not alter the  primary intent that John shall have a moiety by their own argument for that  cause if a man devise to a for life remainder to b in tail or fee and the  devisee for life die before the devisor yet b the devisee in remainder shall  take as be clear law Goodright v wright p wms b and agree by the defendant  counsel for though he can take in manner and form as be devise immediate yet  it be intend he shall take by the devise and the substancethat he shall take  by the deviseshall not be lose for a variance in the circumstancehow he shall  take by it and the reason of the difference which be put at the bar between  the case of a remainder where the devisee for life die in the life of the  devisor and brett case full prove our case as to one moiety for it be say  Henry Brett have power to dispose the land whole from his heir and therefore  he not take as be intend his heir shall not take but the devisee for Bridgman  oh life have no power to dispose of the estate from he in the remainder and  therefore he in the remainder shall take by the devise though the devisee for  life do not take which reason if it be the reason of that case as I think it  be not hold much more here as to John moiety where a devise be to two and  their heir and one die in the devisor life he can not absolute dispose of the  whole and therefore his death can make void the devise for the whole so that I  shall say no more to that point I hold it very clear John shall have a moiety  but I be of opinion that John the survive devisee shall take not only the  moiety but the whole though Ferdinando die in the devisor lifetime for first  this case whole differ from brett case for there the heir be not intend to be  immediate takersprisours but the heir be there name to make a feesimple in  Henry the devisee and not to make any other take a estate by they so are the  word of the book c but in this case John be by the will to take and immediate  though not sole and be a joint tenant he be a taker of the whole for they v be  seize per my et per tout though not sole upon the first make of the will in  that case of Brett there be no devisee at all and as there must be a grantee  so there must be a devisee that be the reason a immediate devise to a infant  en ventre to take immediate and not executorily be void the tendency of  subsequent decision on the claim of posthumous child seem to be against the  position in the text and to render the distinction unnecessary as far as  relate to the interest of the child and the presume intention of testator it  have be infer from the case that a child in ventre sa mere shall be consider  as absolute bear wherever such consideration will be for his benefit Watkins  on descent cite with approbation by Mr justice buller in do v clark h Bl see  the case refer to in viner ab pl and and in the supplement vol three p and in  Fearne c r see Skelton v Bide in p of this volume and Trower v butt recent  decide by his honour the vicechancellor chapman v blisset Cas tempt Talb where  p Lord Talbot state that although in a will word be in present time they must  be take in a future sense in order to serve the intent but query if the whole  extent of the doctrine borrow from the civil law have yet be apply independent  of the statute pound W to disposition of real estate c and therefore it be a  Bridgman oh er p imperfect will Henry be dead as to the devise any estate for  there be no devisee but where the devise be to two and one die there be still  a person in be who can take as a devisee it be like the case of attornment a  grant be make to one and his heir of a reversion and he die before attornment  his heir can have it for there be none to take the word heir be word of  limitation not to take but if a Bridgman oh grant of a reversion be to two and  one die attornment may be to the survivor for there be the taker but in that  case if both the grantee have die attornment can not be make to the heir of  the survivor for there be no grantee in the deed the word heir be word of  limitation only and so in our case if both Ferdinando and John have die in the  life of the devisor the heir of the survivor can not have take by the will  because there be no person to take but the testator devise the whole to both  and not a moiety to each and his principal intent be that as well the one as  the other shall have a interest in the whole land and shall sell if the  personal estate fall short for payment of debt and as for that which be object  concern the primary and consequential intent of the devisor I answer it be not  his principal intent that Ferdinando shall dispose a moiety away from his  brother the power indeed to dispose a moiety be a consequent of his devise  because it be a joint devise that therefore he may dispose of a moiety as it  be a consequent of it that if he do not dispose of it it may survive and when  by reason of death one be not capable to take it be reasonable in itself the  other who be capable to take shall take all for the performance of the will  and from these answer to the objection upon brett case I draw the reason why  though the devise be to Ferdinando and John and their heir and Ferdinando die  before the devisor John who survive the devisor shall take all first for that  John be capable in law to take all and in such a limitation by deed he shall  have take all and it be a good rule that you ought to make construction of a  will accord to the construction of grant in like case at the commonlaw unless  the intent of the testator appear in the will itself that it shall be  otherwise which it do not here and therefore it be a clear rule in law where a  estate be limit to two and the one be capable the other not he that be capable  shall take the entirety as if a gift be to I S and his first son he have none  at the time or to I S and a monk or to I S and I d who be not in a thing  naturan so if a devise be make to a and b and their heir and there be no such  person as a at the time b shall take all and as where a grant or devise be to  two and one be not capable at the time to take the other take all the same  reason be where the gift be to two and before the estate perfect these case  correct the corrupt passage in carter p so where land be give to two and  before the estate be perfect one take which seem to want the word one become  incapable to follow the second comma the opinion of Popham and Fenner be also  misstated in carter d Bridgman oh one become incapable which be our case as  appear by the case before cite of a grant of a reversion to two and one die  before attornment or a grant of a reversion to two and one before attornment  become a monk and the reason be there be one capable to take and when the  other can take ut res valent it be more reasonable the other shall take all  rather than he that be capable shall not take which reason hold as well in  devise as in grant the opinion of Popham and Fenner in full case Cr go further  for there be a case put of see note d e a devise to a and his heir who be dead  at the time of the Bridgman oh er p will make so as there be none such then in  a thing naturan and therefore they hold in that case that the heir shall take  as devisees as if the devise have be only to the heir of a be be then dead  there be clear a good devise for there the word heir be word of purchase as  well as limitation I do not go alone to affirm their opinion to be law but it  more than prove that which I mention it for videlicet that these two learned  judge hold that by a devise to two one whereof be not in a thing naturan the  other take all the second reason or rather enforcement of the other be this in  all grant and so in devise the law look upon the general or principal intent  of the grantor or devisor and where there be a good grantee or devisee and  that general purpose or intent of the devisor may be prefer though there may  be a variance in circumstance or in the secondary or consequential intention  yet it will uphold the substance and primary intention of the grant or devise  that be the reason of the common case a man covenant to levy a fine to use to  such person and by such a time though it be levy afterward to other person or  at another time yet this fine shall be to those use if nothing appear to the  contrary for the substantial part be the grant it to these use and that be the  reason of Littleton case in his chapter of condition cite at large out of h in  the Lord Cromwell case if a feoff be upon a condition to feoff the feoff and  his heir the feoff have time during his life unless hasten by request the  feoff die the feoff be not now free from the condition but must make it cy  pres as near as he can so if a man be bind to feoff two and their heir one die  be shall feoff the survivor for he must do it Bridgman oh cy pres nay if he be  bind to feoff I S and his heir and I S die he must feoff his heir and it  differ from Brett and Rigdens case for that be a limitation of estate by the  devisor and the heir must take as the devisee which he can but upon the  condition the conveyance be to be make de to make new and so may be make to  the heir and this be the true reason of the case before put if a devise be to  a for life remainder to b and his heir a die before the devisor or refuse b  shall take immediate not because b may dispose of his remainder whether a will  or not as be urge on the other side for dispose or not dispose of it be not  there within the primary intention of the devisor and the reason of our case  must be ground upon the intention of the devisor not the power of the devisee  but the intent of the devisor be that b shall take a estate and though it be  intend he shall not take immediate but in remainder yet rather than he shall  not take at all he shall take immediate for the substance be that b shall take  a estate and the variance in the circumstance and manner of take it shall not  make the will void No more b ere it be intend John shall take a estate he can  by reason of Ferdinando death take it joint therefore be shall take it as he  may that be Ferdinando be dead be shall take it sole and entire suppose a  devise be make to baron and feme and the heir of their two body they shall  have take by undivided moieties the wife dies shall the husband and child be  deprive of this bequest because the husband can take by undivided moieties in  a grant or limitation of use the husband will have have a estate tail why  shall he not have it in a will nay why not much the rather for his intention  appear to give it from his heir and that the husband and child shall have it  because the husband must take it in another degree not now by moieties but  entirely what reason be there that the substance shall be lose for this  circumstance and if you allow that case you must allow this in both case the  variance from the will be the same the devise take by entireness Thirdly In  this particular case the circumstance upon the will make this construction  which be agreeable to case at the commonlaw that the survivor who only be  capable to take shall take the whole much more strong for he give diverse  legacy and portion and make Ferdinando and John executor and then devise that  in case his personal estate fall short and be not sufficient to pay his debt  legacy and portion that so much of his land bequeathe to his son Ferdinando  and John as shall be sufficient to pay the say legacy Bridgman oh and portion  shall be by they sell for and towards the payment and satisfaction of the same  if we shall go by the way of argue in Plowdens commentary and ask George Kemp  the devisor Did you intend if Ferdinando die before John that your debt legacy  and bequest shall be unsatisfy and your heir take all will not be or we for he  answerNo my intention be contrary Bridgman oh er p nay will he not much more  probable have say I do for that cause limit it to my two young son and their  heir to the intent if one die his part shall not go to the heir at law but to  the survivor to perform my will and last I look upon this case as a case of  more general concernment than it may seem at first man do as much or more at  this day pass land by will as they do by any one kind of conveyance how  frequent be it by will to pass over land to diverse trustee and their heir for  the raise of portion payment of debt c or to settle land upon baron and feme c  how frequent do some of these die before the devisor I it will be a very hard  I may say unreasonable construction to make all these void by the death of one  of the devisees so that I conclude and for this first point I hold that John  Kemp survive his brother Ferdinando take the whole which be devise to they by  the will of George Kemp the father