case GOODRIGHT against Opie if a testator devise all his land in fee to a b  and c as tenant in common and all his other land not before bequeathe and all  his money household good plate and all his estate real and personal of what  nature or kind soever to d and e in fee Qure if c die in the life of the  testator whether the lapse three part of his estate in fee shall pass to d and  e as residuary legatee or to the heir at law of the testator ejectment upon  not guilty plead the jury find the defendant not guilty as to part and as to  the other part there be a special verdict the substance whereof be thus the  testator be seize in fee of several land do in the year devise all his say  land to five person name they and to their heir as tenant in common that John  pain one of the say devisees die two year before the testator modern report  who by another clause in the will devise all his other message land c not  therein before give devise or bequeathe and all his money household good plate  ring c and all his estate real and personal whatsoever of what nature or kind  soever to his two niece mary Buce and mary Opie their heir executor and  administrator that the testator die without make disposition of the say five  part of his land otherwise than by his last will as aforesaid the question be  whether the same shall descend to the heir at law of the testator as not be  dispose by he in his life because the devisee die before he or whether it  shall pass to Buce and Opie as residuary legatee by the latter clause of the  will as a estate not before dispose by the testator those who argue for the  lessor of the plaintiff who be heir at law insist that this five part of the  land shall descend because it can not pass by any possibility to the first  devisee for he be dead before the testator therefore it must necessary modern  report er p revest in he and by consequence must descend to his heir at law  that there be no case wherein it have be resolve that a residuary legatee in a  will shall carry the land which have be before dispose by the same will though  it shall happen that they can pass to the first devisee either by reason of  death or any other incapacity that will S be common guide by the intention of  the testator and that there be not a word in this will which show he intend  these land shall pass to the residuary legatee neither be it pretend by they  that he know the first devisee be dead now it be a settle rule in the  construction of will that both as to the person take and as to the estate  which they take all must arise from the intention of the testator which  intention must be collect out of the word of the will itself now here be no  word in this will which import that the testator intend these land shall pass  to residuary devisees this be premise and it plain appear by the first clause  of this will that the testator have dispose all his land therefore the word  real and personal estate in the last clause shall be intend a devise of his  chattel real for it be absurd to say that what he have before devise to one in  fee shall go over to another see the case of Wilkinson v Maryland cro car a  beside he have devise all other his real and personal estate not before devise  there the word other be a relative and can refer to any land before give but  make that clause as strong as if he have except the land before devise by  particular name they because there must be modern report other land to satisfy  that word and which be not devise before but the land now in question be  devise before but admit it to be the intention of the testator that the five  part of his land shall pass to the residuary legatee yet if the word in the  will be not apt for that purpose those land will not pass and so it be resolve  in the case of steed v Berrier raym vent Mod a the case which come near this  point and which probable may be object on the other side be the case of  Wheeler v Watson Allen b the testator devise a manor to t S for six year c and  afterward by the same will he devise all the rest of his land in somersetshire  or elsewhere to his brother and his heir it be adjudge that the reversion  after six year pass but in that case and some other of the like nature lev  sand vent c it appear in the will S themselves that the testator have other  estate to dispose and that they use sufficient and apt word to pass they b  contra the question be true state on the other side videlicet whether the five  part of the testator land shall descend to the heir at law or pass over to the  residuary devisees as not dispose before because John pain one of the five  devisees die in the lifetime of the testator and by consequence it can not  pass to he but it seem plain that it shall pass to the residuary devisees by  the last clause of this will because at that very time when it be make it be  not dispose to any other person whatsoever for it be then the estate of the  testator and can not be the estate of John pain because he be then dead  therefore it must necessary pass by the last clause in the will as the real  estate which the testator then have and which he have not dispose before as to  the word other it be restrain to that very clause by which the testator devise  his chattel and can refer to a devise of his real estate of any kind  whatsoever because it be a devise to the residuary devisees and their heir now  it have be in vain for the testator to have mention the word heir if he have  not intend the land shall pass to they and as to such intention it may  reasonable be collect out of the word of this will that he do intend they  shall pass for otherwise he may easy have word the clause in this mariner and  all other my real and personal estate not beforementioned instead of not  before modern report dispose so that his intention seem to be that if by any  accident interpose his land shall not pass to the first devisees then they  shall pass over to the second devisees as a residuum not before dispose and  though probable a lawyer may have use other word than the testator have do in  this will yet that be not to be consider where his intention be so plain for  if the form be not good yet his intention be clear that will help the form but  in this modern report er p case the whole will be good and formal and there be  no room to object that it be not so it be true it be object by the counsel for  the plaintiff that it be absurd to say that after the testator have devise his  land to one in fee that they shall go over to another but this be misrepresent  the case for it be no otherwise to go over than in case any accident shall  happen that they shall not pass to the first specific devisee as if the  testator shall devise a particular sum of money to one and all the rest of his  personal estate to another and it shall happen that this particular legacy can  not pass to that legatee shall not the residuary legatee have it before the  executor certain he shall and yet in that respect the executor have the same  right to chattel as the heir have to land and as for case there be none in  point the court a executor have not the same right to the personal estate as  the heir at law have to land because a executor be no more than a trustee make  by the testator see the case of sir Richard reins Carth Warrington v Langham  Prec in Chan Nicholas v Nicholas Prec in Ch and Mod accordant a but a heir be  to sit in the seat of his ancestor but as to the principal matter if a  particular estate for life have be devise to John pain who die with remainder  over such a remainder have be good and so be Perkins b a and so shall this and  there be no objection against it but that it do not appear in the will that  the testator have anything to dispose he have devise all his land before by  the first clause in his will to five person and their heir No judgement be  give see the case of wright v horn post b