case humphrey against tayleur in chancery Feb discuss in re kerr trust Ch d  apply Nandi Singh v Sita ram l r ind App devise of residue to a b codicil  revoke every legacy thing and part to a b shall take the whole lib Reg a foe a  S c dick S c hark ms from capper p and from de grey ms p Sarah Wauchope by her  will of that July among many other legacy give to any who shall claim as her  next of kin one shilling and after several bequest devise as follow item after  all my debt and legacy pay all the rest and residue of my real and personal  estate I give and bequeathe to the say reverend doctor John tayleur doctor of  law and Andrew Wauchope Esq my cousin who I make executor of my last will and  testament by codicil July she annul and revoke every legacy thing and part in  the above will that relate to her cousin Andrew Wauchope and also revoke his  be one of her executor she also cancel every thing in the will that be give to  the wife of Andrew Wauchope bill by next of kin Lord Hardwicke c I have no  doubt concern this cause for the argument on the part of the plaintiff be  contrary to the principle of law and the express intent of the testatrix two  point arise saint whether the codicil be a revocation of the whole gift to  both d if not of the whole whether of a moiety saint it be necessary for the  plaintiff to insist on its be a revocation of the whole otherwise it can not  be so of a moiety in support of it it be say as it be a gift of the ambler  whole to both with survivorship each have a benefit by the gift to the other  from the chance he have in the other share from whence a revocation of the  interest of one revoke such benefit accrueing to the other which be in the  whole and the substance of the gift but this point be determine in Davis v  Kemp Carth for the intent be that the defendant shall take a moiety and he  must have it and though he fail in the circumstance yet he shall take it by  the devise on d point two question arise whether defendant can take the moiety  in dispute as executor or as residuary legatee if it be necessary to determine  the first I shall be of opinion he may by the settle rule of law for the  executor take the whole personal estate by the law subject to the debt and  legacy but this court say he shall be a trustee only of the residue after  discharge of the debt for the next of kin now this be but a result trust see  lake v lake ante and note and may be rebut by the intent of the testator and  evidence be admissible to prove such intent but here the intent of the  testatrix be express for the clause relate to the next of kin call in common  parlance cut off with a shilling most clear show her design that they shall  have nothing more and have a clause be insert declare her will to give nothing  to her next of kin such a clause will rebut their equity suppose a estate give  to a devisee in trust for payment of debt and legacy and nothing say of the  surplus but a clause that say the heir at law shall take nothing the devisee  will be entitle to the surplus but recourse need not he have to this point for  he be entitle to this moiety as sole residuary legatee both from the nature of  the estate give and the benefit itself upon this point see starke v brook p  wms Hobart v countess of Suffolk vern hill v bishop of London atk cook v  Duckenfield atk king denison V b ambler er p saint from the nature of the  estate it be object the estate be give to they joint that survivorship be  essential to a jointtenancy and by that only one can take the whole that here  be no survivorship ambler if a estate be limit to two joint the one capable of  take the other not he who be capable shall take the whole Carth it be object  if the defendant take it must be by survivorship but this go on a wrong  principle of survivorship be of the essence of jointtenancy and it suppose the  estate to vest which in this case do not where a jointtenancy to two be create  in a devise and the estate vest by the death of one the survivor take by the  gift from the nature of the estate and after the release or death of one it be  pleadable by the other as a devise to he alone which can not be unless he take  the whole by the bequest and suppose the testator revoke the interest of the  one the law and consequence must be the same here be a bequest of the residuum  to two and a entire revocation as to one of they dly the defendant be entitle  to it from the nature of the gift itself it be object there shall have be word  of gift that such will have be unnecessary appear from the nature of the thing  give for it be a bequest of the whole residue at the time of the death of the  t testatrix and it be absurd to suppose that where the whole be give away any  part can be distributable and from the nature of the gift for the residuum be  a fluctuate indeterminate quantity and any particular legacy will after  revocation fall into it of itself the law add to the residue without  particular word and herein there be no difference between the revocation of a  particular legacy and the residue the difference between page v page wms and  hunt v Berkeley Eq can Abr be find on there be express word of gift in the one  and not in the other it be argue this may be compare to a conveyance to the  use of two with a power of revocation where the grantor revoke as to one will  take back a moiety but I be of opinion in that case a revocation by a  subsequent deed in ambler such word as be in this will will vest the use in  the other grantee Davis v Kemp Carth be in point where Bridgman g I say that  each be a taker of the whole but not sole for the whole be devise to both and  not a moiety to each and in all grant and devise the law look principal upon  the intent of the grantor and devisor and if the general intent may be  preserve it will uphold the primary intent though there be a variance in  circumstance see post Austin v tailor post in this codicil the revocation be  personal to Andrew Wauchope and the word cancel be remarkable it be like erase  his name out have that be do there will not have be this query and the effect  be the same for a revocation by a codicil or a obliteration be to be esteem  pro non scribe in the will the regard and good intent of the testatrix appear  in the will towards the defendant continue throughout to the execution of the  last codicil for ought appear to the contrary he be therefore entitle to the  whole bill dismiss and if the personalty have not be very large I shall have  dismiss it with cost so if there be a joint bequest to two and one die in the  lifetime of the testator the survivor shall take the whole well v baine p W  miller v Webster vern Ledsome v Hickman vern Perkins v Micklethwaite p wms  Buffor v Bradford atk bring v clay Ch Rep scold v green Prec Ch dowset v sweet  post see smith v Pybus Ves but where the bequest be to two as tenant in common  if one die in the lifetime of the testator his moiety shall not survive  Bagwell v dry p m Peat v chapman Ves S page v page p wms Ackroyd v Smithson  bro g Degby v Legard p wms in Mr Cox note see Androvin v Poilblane atk Bennet  v bachelor Ves Jun S c bro c c Owen v Owen atk so in the lastmentioned case if  the devise to one be revoke his moiety do not go to the other Cheslyn v  Creswell hill ms page S c Eden S c on appeal bro p c see Skrymsher v Northcote  Swanst as to where executor shall take the residue of the testator estate in  trust for the next of kin see Lloyd v Stoddart post and Nicholls v crisp post  and note there ambler er p