brown case robert barker appellant Nathaniel gyles et all respondent d April  Mews dig xv I S devise land to be sell for payment of his debt and legacy and  the surplus to be lie out in the purchase of other land to be settle on a and  b and the survivor of they and their heir equal to be divide between they  share and share alike a die in the lifetime of the testator and the question  be whether his moiety shall descend to the testator heir at law as a lapse  devise or shall go to b the survive devisee hold that the first part of the  devise make a and b plain joint tenant and therefore b by survivorship become  entitle to the whole for life but that the inheritance be devise to they as  tenant in common one moiety have lapse by a s death in the lifetime of the  testator shall descend to the testator heir at law expectant on the death of b  and that the other moiety shall go to the heir of b wms Mod viner vol p can Eq  ab can Robert Barker be seize of a real estate and possess of a considerable  personal estate by his will date the that of September give and devise to the  respondent gyles and smith their heir and executor all his manor of Everleigh  in the county of wilts then in mortgage and all his right equity of redemption  etcetera in and to the same and also his personal estate whatsoever in trust  to sell and dispose of the say real and personal estate and by and out of the  money to be raise by such sale and out of the rend and profit of the real  estate until such sale to pay off such debt as shall be due upon any mortgage  of the say premise and all other his debt whatsoever together with the expense  of his funeral and the legacy brown er p give by his will and after such  payment make then in trust to purchase other land with the surplus of the  money arise by the sale to be convey to the say gyles and smith and their heir  upon the trust follow videlicet if such surplus shall not exceed pound then as  to all the land so to be purchase or so much of they as shall be value in the  same purchase at pound in trust for his sister the respondent Martha Barker  for her life and after her decease in trust for the appellant one of the son  of the testator brother sir William Barker and his heir and as to the surplus  and residue if any shall be of the land and tenement so to be purchase as  aforesaid to the use of or in trust for Jerome Barker and the appellant and  the survivor and survivor of they their heir and assign for ever to be divide  equal between they share and share alike and gyles and smith be make executor  of the will the testator do not die till December before which time he great  increase his personal estate Jerome Barker die without issue in the lifetime  of the testator the appellant insist that he be by survivorship become entitle  to the whole manor of Everleigh and all the surplus of the testator personal  estate after payment of his debt funeral brown charge and legacy and accord in  easter term he exhibit his bill in chancery against gyles and smith the  trustee and the other respondent for a account of the whole personal estate of  the testator and of the debt which he owe and of the surplus of the personal  estate over and above the debt legacy and funeral expense and pray that if the  personal estate shall not be sufficient to pay the same yet that the manor of  Everleigh may not be sell but be convey by gyles and smith to the appellant  and his heir he thereby offer that the same shall be charge with the payment  of pound per and to the respondent Martha Barker for her life the defendant  gyles and smith by their answer say they be advice that if Jerome Barker have  survive the testator he and the appellant will have be tenant in common of the  land direct by the will to be purchase by virtue of the word equal to be  divide between they share and share alike but that Jerome die before the  testator the moiety of the surplus intend for he be by that mean leave  undisposed of and as such belong to the testator representative but whether  the same shall be take as a real estate be direct to be lie out in land or  whether it shall be look upon as money and part of the testator personal  estate they submit to the judgement of the court the defendant black and his  wife by their answer insist that she be heir at law of the testator and that  if he have make no will or have devise part of his real estate in such manner  that it be become a void devise they claim the same in right of Penelope as  his heir at law the defendant Martha Barker by her answer submit that the  pound direct to be lie out for her benefit for life shall be charge upon the  manor of Everleigh so far as the interest thereof at the rate of pound per  cent shall be pay to her for life on the that of June the cause come on to be  hear before the Lord chancellor king when his lordship be please to decree  that a account shall be take of the testator personal estate and of the rend  and profit of the real estate receive by the defendant gyles and smith since  the death of the testator and that a account shall be take of the debt owe by  the testator at the time of his decease and of the legacy devise by his will  and of his funeral charge and it be further order and decree that the testator  real estate shall be sell to the best purchaser to be allow of by the master  and after payment of the testator debt legacy and funeral expense and the cost  of the suit the surplus of the testator personal estate and of the rend and  profit of his real estate and of the money which he raise by sale of the real  estate shall be lie out in the purchase of land with the approbation of the  master in the name of the defendant gyles and smith brown and that the land  which shall be purchase therewith shall be convey to the say defendant gyles  and smith and their heir upon trust as to part thereof which shall be of the  value of pound to the use of the defendant Martha Barker during her life and  after her decease to the use of the appellant and his heir for ever and as to  the residue of the land and tenement to be purchase as aforesaid brown er p as  to one moiety thereof to the use of the appellant and his heir and as to the  other moiety thereof to the use of the appellant for his life and after his  decease to the use of the defendant Penelope and her heir the appellant  conceive himself aggrieve by this decree appeal from it insist c Talbot t  Lutwyche that by the word of the will he be entitle to the fee and inheritance  of all the land to be purchase it be the testator intent that the devise shall  take place for the whole estate and the inheritance vest in both Jerome and  the appellant in case both of they survive he and if only one survive that  then he shall have the inheritance of the whole and for this purpose the  testator have use very proper word videlicet to the survivor and survivor of  they that the construction in make a tenancy in common of the inheritance be  not warrant by the word of the will for though the word equal to be divide  have be take to make a tenancy in common in a will where the intention of the  testator appear to be so yet they be not proper and legal word for that  purpose and therefore have be hold not to be sufficient to make a tenancy in  common in a deed but here the testator have express say it shall go to the  survivor which take away all presumption of his intend a tenancy in common  much less that he intend a joint tenancy for life with several inheritance the  consequence of which be to disappoint the appellant of the inheritance of one  moiety and make the testator die intestate as to the inheritance of that  moiety that so it may descend to the at law which seem to be quite foreign to  the testator intention that no sale shall have be direct of the manor of  Everleigh the personal estate be sufficient for the payment of all the debt  and legacy with a overplus or at least not until it appear that there will be  a deficiency of the personal estate for that purpose that the appellant be  further aggrieve by the decree inasmuch as it be thereby direct that the  surplus of the rend and profit of the real estate as well as of the money  raise by the sale thereof shall be lie out in a purchase whereas the appellant  insist that he be in all event entitle to and ought to receive the whole rend  of the real estate and the whole profit of the surplus of the personal estate  at least during his life subject to the payment of pound per and to Martha  Barker and that therefore no part of such rend and profit ought to be invest  in the purchase of the land decree to be purchase but that the whole rend  until a sale if any sale shall be necessary as well as the interest of the  purchase money until another purchase brown be make and the interest of the  testator other personal estate after payment of the debt and legacy ought to  be pay to the appellant on the other side it be contend p York W peer William  that the decree be just and agreeable to the rule of law and equity for that  the court in make it proceed upon this foundation namely that by the will the  appellant and Jerome Barker if he have live will have be joint tenant for life  of the land to be purchase with several inheritance to their respective heir  and that by the death of Jerome in the lifetime of the testator the devise of  the trust of the inheritance as to one moiety become a lapse devise and  consequent though the appellant who be the other joint tenant for life be  entitle to enjoy the whole estate for his life by survivorship yet the  reversion and inheritance of Jerome moiety be undisposed of by the will have  descend to the respondent Penelope as the testator heir at law and this  construction of the devise be apprehend to be right and the only way of  understanding it as hereby all the word of the clause expressive of the  testator intent can have a proper effect it be therefore hope that the decree  will be affirm with cost accord after hear counsel on this appeal it be order  and adjudge that the decree therein complain of shall be affirm with this  direction videlicet that the appellant may be at liberty to apply to the court  of chancery for to receive to his own use the surplus of the rend and profit  of the real estate over and above what shall be sufficient together with the  personal estate to pay off the testator debt and legacy and other payment  direct by the will in case it shall appear upon the account that there be or  before the sale shall be any such surplus and likewise to apply to the say  court that no more of the say estate shall be sell than be necessary to make  good the payment aforesaid whereupon such direction shall be give as shall be  just journ vol p brown er p