barker v giles and smith may S c p wms devise to a and b the survivor and  survivor of they their heir and assign to be equal divide between they share  and share alike be a jointtenancy for life with different inheritance a man  devise his estate to trustee to be sell for payment of debt and legacy and the  residue in trust to the use of Jeremy and Robert Barker who be his nephew  select case tempt king er p the survivor and survivor of they their heir and  assign to be equal divide between they share and share alike Jeremy die in the  life of the devisor so the question be whether it be a jointtenancy or tenancy  in common for if a tenancy in common will pro tanto be lapse as die in the  life of the devisor and go to the heir at law after argument baron Gilbert be  of opinion it be a jointtenancy justice Raymond that it be a tenancy in common  the court be thus divide in opinion it be order to be speak to again ut res  novan which be do June before Lord chancellor king when it be insist on on the  part of the plaintiff that the word equal to be divide between they do not in  their legal operation amount to a tenancy in common this be uncontroverted  that in a deed it will be so and in dyer it be doubt whether even in a will  where the most liberal construction be whether equal to be divide between they  will be a tenancy in common but in Ratcliff case coke a it have be resolve a  tenancy in common on account of the intent but sole on the intent as it will  not be so in a conveyance so not ex way termini but in the intent which intent  be explain here by his own word so that to make it a tenancy in common must be  from his intent and that intent appear otherwise by his own word to make it so  will be to make it so contrary to his intent fisher v Wigg a copyhold be  surrender to the use of five equal to be divide among they and their  respective heir and assign the court be divide jointtenancy or tenancy in  common but Lord chief justice holt be of opinion it be a jointtenancy to some  purpose a jointtenant may be say to divide as by assign his part and only one  can forfeit his part so that the subsequent word do not direct destroy the  word survivor select case tempt king it must have be the intent of the devisor  that in case one die in his life then to the survivor else not but to be equal  divide the word import this the heir at law be very remote relation the  primary original design of the devisor be that the heir at law shall have no  part of his estate and by the creation of trustee the descent be break so that  if they claim it it be as a result trust the case of blisset and Cranwell in  lev can be support by the reason there one be that the last word control the  former in different sentence that may hold but can in the same individual  sentence to suppose he have one intent at the beginning and another at the  latter end of a sentence will be very odd it be say the word survivor if not  express will be understand and therefore it signify nothing which be the great  faIlacy in nature if it have not be express it will have be imply and shall  the express of what will have be imply unexpressed make it when express  signify nothing the report in salk of blisset and Cranwell be different from  levinz style Tuckerman V jefferies Ann to his two daughter to be equal divide  after their death to the right heir of one these word equal to be divide be  not strong enough to make a tenancy in common but be determine to be a  jointtenancy though there want the word survivor to which it be answer that  the word equal to be divide in a will have for these one hundred and fifty  year create a tenancy in common Ch can salk the case of Tuckerman v Davis be  answer by observe that it be not give over till after the death of they two  Jointtenancy be in the nature of thing extreme irrational and therefore court  of equity bear hard against it and even commonlaw court construe it tenancy in  common wherever possible can it be extreme absurd that one shall take all in  disinherison of the heir because he happen to have a better constitution but  let the word be ever so plain to show his intent to disinherit the heir at law  if he do not do it consistent with the rule of law it signify nothing here one  of the person die in his lifetime though if he have outlive he the heir will  have be total disinherit as it be it be so much undisposed of and therefore  the law make select case tempt king the provision to be to he who have a  natural right his heir at law these case be cite cro Elizabeth more Owen Ventr  style bale v Coleman before Lord chancellor Cowper and Harcourt king  chancellor in this court this be to be consider as a real estate construction  of will be the same in a court of equity as at law the question be what be the  select case tempt king er p intent if the intent be contrary to the rule of  law the legal construction must prevail where the word can possible have any  construction put on they all must be preserve but where be nugatory as  survivor and can have no manner of construction must be reject if both the  nephew have survive they have be tenant in common and whatever will have be  the construction if they have survive must be so now as the construction be to  be on the word of the will which can be vary by subsequent accident if it have  be to two and their heir and one have die it will have be a immediate devise  and not by way of jointtenancy the devisor design as well that the nephew  shall both take as the heir at law shall be disinherit and the intent must be  as at the time of make of the will unless contravene by accident or act of God  here by act of God one die so there be a determination of his intent as to one  this be a jointtenancy for life with different inheritance and thus consider  it be a plain easy natural construction of the word by which they will be all  preserve and by any other some must be reject so decree the whole to the  plaintiff for life and after his decease one moiety to his heir and the other  moiety to the defendant and his heir