case HAYSMAN against moon a devise to a for life with remainder to b she pay  to each of her sister l convey to a a estate in fee Writ of error to reverse a  judgement give in the common plea for the defendant on a ejectment a special  verdict find that Susannah Morley be seize in fee of the premise in question  devise they as follow as to my land in c I give they to my sister dame mary  fag for her life and after her decease to her young daughter Susannah she pay  to each of her sister Elizabeth and mary five hundred pound apiece the  survivor to take the whole and if the say Susannah die before her mother I  will that the farm be equal divide between her two sister Elizabeth and mary  and if they all three die before their mother I will it descend to the right  heir of my sister dame mary fag for ever that the testatrix die that sir John  fag the husband of dame mary enter in right of his wife and that they bad  issue seven son and three daughter Elizabeth mary and Susannah Susannah die in  the lifetime of her mother dame mary without issue mary another sister marry  one expense and die also in the lifetime of her mother but leave issue a son  who enter into a moiety on the death of dame mary fag Elizabeth the other  sister marry one gall who also enter into a moiety in right of his wife and  levy a fine with Elizabeth and die without issue the present ejectment be  bring by the heir at law of Elizabeth one of the daughter of dame mary fag to  who the premise be devise on susannah die before her mother dame mary fag  against the heir at law of sir Robert fag who be the modern old son and right  heir of dame mary fag and also heir at law to the testatrix Susannah Morley  the two question be first whether the two sister Elizabeth and mary who  survive their sister Susannah take a estate in fee in common or only a estate  for life by the will second whether this ejectment be well bring for a moiety  of the premise or ought to have be bring for a undivided moiety the counsel  for the plaintiff in error the defendant in the ejectment argue that Elizabeth  and mary take only a estate for life for that here be no word to carry a great  estate to they and as they be not direct to pay any sum over they can have no  loss by not take a great estate than for life that the testatrixs intention  can prevail unless it be agreeable to the rule of law and in this devise there  be no word which by the rule of law will carry a great estate to Elizabeth and  mary than for lifeCo light b roll Abr pl dyer cro car cro Elizabeth Leon more  a that the plaintiff be complete heir be both heir at law to the testatrix and  right heir to dame mary so as to take under the will and therefore it be not  to be disinherit by ambiguous word or by a constructive implication Vaugh  Dalison levin cro b it be plain from the last clause of the will that the  testatrix know what word will pass a fee for she have there make use of they  as therefore no such word be use in the devise to Elizabeth and mary it must  be suppose she do not intend they shall have so great a estate in the premise  and it be express say that if all the daughter modern er p die before their  mother it shall go over to another person which show the testatrix have no  regard to their child and it be observable that no word of inheritance be use  until after the devise to Elizabeth and mary as to the second point it do not  appear that any partition be ever make of this estate and therefore the  ejectment ought to have be bring for the whole premise or for a undivided  moiety in general for as it be now bring it will be make a partition by  ejectment for the sheriff must put the plaintiff in possession of a moiety and  by that mean will divide the estate which can be do in this way Litt tenant in  common Inst Litt sect cro Elizabeth Savil   light b raze Ent   Ent hut lev  Inst Litt sect c the counsel for the defendant Elizabeth and mary take a  estate in fee there be no precise word necessary to pass a estate by will but  the intention of the testator be principal to prevail and that be to be  collect from the whole of the will take together and be to modern receive a  liberal construction and the intention of the testator be to govern the word  of the will as much as the strict rule of law be those of a conveyance the  testatrix show that she intend the premise in question for the benefit of her  sister daughter and to prefer they before the son and of the daughter she  intend the chief benefit to Susannah the young to who she first devise they  and direct her to pay five hundred pound to each of her two sister but if  Susannah die before she come to the possession of the estate till which time  the legacy of five hundred pound each be not to be pay then it be give to the  other two sister in lieu of their five hundred pound now it be plain the  testatrix intend that Elizabeth and mary on the death of their sister Susannah  before their mother shall have as great if not a great benefit from this  estate than they will have have if Susannah have survive their mother and in  that case they will be entitle to five hundred pound apiece absolute which  will have go to their child from their death if therefore they shall take only  a lifeestate in these land they may be considerable loser by their sister  death and will not have so great a benefit by the devise as if the five  hundred pound have be pay to they which the testatrix can not intend it be  plain that Susannah bad she take will have take a fee by its be direct that  she shall pay five hundred pound to each of her sister     Benlowe cro James  Mod cro Elizabeth cro James cro car et all a and as Elizabeth and mary take  the estate instead of the five hundred pound it must be intend they shall have  as great a estate for though the estate be not charge to they with the payment  of any money yet unless they have a fee they may not receive so much from the  estate as they will have do from the five hundred pound apiece and in this  sense may be loser by have the estate but the law will always give such a  estate to the devisee as be sufficient to support the purpose and intention  for which the devisor devise it here then the testatrix intend the estate in  lieu of the five hundred pound apiece and unless they have a fee it will not  answer the testator intention so be shaw v weigh Eq case Abr the heir at law  be here exclude by express word for it be particular direct that be shall not  have the estate unless all the three daughter die in the lifetime of their  mother which have not happen more Mod show roll Abrid Ventr Chan case b as to  the second point the ejectment be well bring for a moiety only for the  plaintiff can recover only pro tanto and the sheriff will deliver a moiety  only on the execution which will not amount to a partition lee chief justice  deliver the opinion of the court on this special verdict and will two question  have be make first what estate Susannah the young daughter of dame modern mary  fag take by the will second what estate Elizabeth and mary the two other  sister take and a three question have be make on the verdict and judgement  that the judgement be to recover the term entire whereas they be tenant in  common it ought to have be for a undivided moiety as to the first question we  be all of opinion that Susannah take a estate in fee modern er p the premise  be give to dame mary for life by express word then to Susannah pay to her  sister five hundred pound apiece and on susannah death to be divide among the  survive sister and if all three die before their mother then to the right heir  of dame mary fag for ever Susannah be direct to pay a gross sum of five  hundred pound to her two sister the construction must be that she shall take a  estate in fee and upon this principle that she may not have any loss by the  devise which she may have if she take only a estate for life this have be so  often settle that it be not now to be dispute in the case of read v Hatton Mod  a it be say if there be a possibility of a loss though a great improbability  of one it shall pass a estate in fee where the devise be on pay a sum of money  see roll Abr roll Rep dyer   cro Elizabeth vern cro James cro car salk  pollexfen cro Elizabeth Jones lev Chan Rep rob show Com dig devise n Bac Abr  burr black Rep black Rep Cowp do on the demise of Paterson v Richard term Rep  do on the demise of baker v Stocker term Rep Andrews v Stonehouse term Rep  more v miller term Rep b and there be no case to the contrary except one in  Dalisson which be not law but this case be endeavour to be distinguish from  the common case of pay a sum of money because here be a devise over and in  that case the first devisee shall not have a fee and to this purpose be cite  Bacon v hill more cro Elizabeth c where a man devise a separate tenement to  his three son several and that if one or two of they die his part shall go to  the survivor or survivor and further ten pound to each of his three daughter  to be pay out of his land by every one of his son and it be hold that the son  shall not have a feesimple in their tenement for although it be devise that  everyone shall pay a consideration to wit ten pound yet it be further limit  that after the death of every of they it shall remain over that show his  intent that the first devisee shall have it for his life only notwithstanding  that limitation of the payment and it be say that this construction of a fee  to Susannah be prevent by the direction that if Susannah die the land shall go  to the survivor of the sister Elizabeth and mary so that Susannah be only a  tenant for life but I do not think that this case of baron v hill be  applicable to our case because there be a express devise over after the death  of the first devisees but here it be if all the three daughter die before  their mother then the modern land be to go over and it be not say if Susannah  die general but if she die in the lifetime of her mother and by the first part  of the clause she have a estate in fee and by the Iatter part it be a fee  determinable on her die in the lifetime of her mother and in that case the  legacy be not to be pay because the land never come to her as to the second  question what estate Elizabeth and mary take we be all of opinion that the  true construction and the most agreeable to the intention of the testatrix  which ought to be comply with be that they take also a estate in fee but  determinable on their die in the lifetime of their mother the estate be give  to dame mary fag express for her life which show that the testatrix know what  word be necessary to pass a estate for life which be a very material  observation and therefore if a testator use proper word in one part of the  will the court will conclude that he will have express himself in the same  word in other part of his will if be intend to give the same estate and this  be so hold in shaw v bull mich term will a before Lord Trevor therefore as the  premise be not give to Elizabeth and mary for life in express word so there be  no word which show the testatrix intend they shall have they for life only  though there be not the same term annex to the estate give to Elizabeth and  mary as there be to susannah estate yet it be plain give in lieu of the legacy  of five hundred pound apiece which they will have at their own disposal and it  be most reasonable to think that the testatrix intend they shall have the same  power over the estate as they will have have over the money but if it be rest  on that point alone I shall be in doubt whether that will be modern er p  sufficient to give they a estate in fee or not but the follow clause put it  beyond all doubt for there it be appoint at what time the estate shall descend  to the heir of dame mary to wit if the daughter all die before their mother  then only it be that the heir be to take and this must happen previous to the  land descend to the heir the plea of heirship can control the plain word of a  will though I agree no strain construction can be make in order to defeat the  heir den on the demise of gaskin v gaskin Cowp b but this be a necessary  implication and such a one unless we determine against the intent of the will  we can help construe it a estate in fee in the daughter for if we be to  determine that the daughter take a estate for life only it will be say that  the heir of dame mary stall take the estate on the death of the daughter  though they survive their mother when by the express word of the will it be  not to descend to the heir of dame mary unless the daughter die in the  lifetime of their mother it be say the heir shall not be disinherit by any  imply intent and only by express word but then what intent be mean by this  expression which be sufficient to disinherit a heir why the judge mean a  intent arise on the word of the will and such as may modern be call a logical  necessity collect from proposition arise on the will itself and this appear  from the opinion of a great man in the case of Willis v Lucas Peer wms a a  testator devise land to his young son for life pay a refit of ten pound per  annum to his old son and after the death of his say young son and mary his  wife remainder to the first and other son of the say young son and the  question be between the heir at law of the testator and the wife of the young  son whether she take a estate for life by implication or whether it be not to  descend to the heir at law of the testator during the wife life as a estate  undisposed of by the will it not be to go to the son of the young son until  after his and his wife death and Lord chancellor Parker hold that the widow be  entitle to the premise during her life by implication and be observe that it  have be admit that if the devise be to the heir after the death of the wife in  such case she will take by implication and that in this case it appear to be  equal the intention of the testator that his heir at law shall not have the  premise and that they shall not descend to he for that the will appoint that  the heir shall have a rend of ten pound ayear out of the land for his life  plain imply that he shall not have the land itself this be a necessary  implication from the will itself so in Higham v baker cro Elizabeth b on a  devise of a residue of land to his young son and to the heir of his body after  the death of his wife and another farm to his wife and young son to pay debt  and after the death of his wife to his son in fee it be hold that after the  debt be pay the wife shall have a entire estate for life and then the son  shall have it in fee these case show that the implication must arise from the  word of the will show the intention of the testator and the implication be  hold to be so strong that in both the case the wife be construe to have a  estate for life the rule be that where all the word of the will may be satisfy  without carry the estate from the heir be shall not be disinherit for he be a  favourite of the law but the court must give the proper sense to every word  without reject anything and here the implication be necessary from the word of  the will for if we be to construe in favour of the heir at law these word if  all three of they die in the lifetime of their mother must be reject as  insignificant and import nothing it be then say that the heir in this case be  not exclude by express word and therefore can be say to be disinherit I agree  he be not disinherit positive but it be express appoint at what time he shall  take the estate which imply a negative that he shall not take before that time  come which will amount to a positive exclusion by express word a question have  be make whether if the land have be give to they express for life that will  have disinherit the heir it will not for if the word have be to they for life  they will have have no great estate and what have be undisposed of must have  go to the heir at law but here modern the question be upon the meaning of this  will and the event that have happen that as all the daughter do not die in the  lifetime of the mother whether anything be leave to descend to the heir at law  a devise to a without more word will not modern er p pass a fee but if there  be other word to show for what special purpose the devise be intend which  require a great estate it shall be construe to pass a fee as in Benlowe pl a  recite by his will that he be indebt in one hundred pound to b in  consideration of b release that sum to his executor devise the premise to b  without any more word and die and b release the debt to the executor and enter  and it be hold that b take a estate in feesimple in the land so in other  instance where it be necessary to accomplish the intention of the will as in  shaw v weigh easter term Geo Eq case Abr a on a devise to trustee and the  survivor in trust for other for life and in fee without say and to their heir  it be hold that they take a estate ill fee from the intent of the testator b  implication and this show that if a great estate be require to execute the  will a large estate ought to be construe than be give by the express word of  it the question be whether in this case the intent be plain enough to construe  a fee to all the sister the testatrixs first regard be to dame mary fag her  sister who have a estate for life next to Susannah who will have take a fee  then as to mary and Elizabeth if Susannah have survive her mother they will  have have five hundred pound apiece and if Susannah die before they and in the  lifetime of her mother the farm be to be divide among the survivor by this  last clause they be to take a estate determinable on their die in the lifetime  of their mother and that by the special appointment of the testatrix on which  event it be to go to the heir of dame mary it be difficult to find a case  exact in point but it be most like that of Purfoy v Roger sand SC Eq Abr SC  lev b and though there be no judgement of the court on this point yet we have  the opinion of sander upon it the case be the testator devise the inheritance  of his land and house to a after his mother life and if he die before he come  to the age of twentyone year then he give his inheritance of land after his  wife life to his heir for ever and sander be of opinion that a take a fee  because the testator appoint that if he die before the age of twentyone year  the tenement shall come to the right heir of the devisor which show that the  testator intend to give a fee to a for if he intend only to give he all estate  for life what need have he to have direct that they shall go to his right heir  after a s death within age for the law will have direct the same without the  appointment of the devisor and therefore when the devisor make a special  appointment in this manner it must be intend that he mean to give a fee to a  and sander think the word of the will may very well bear modern this  construction this case be like the present only there it be a devise of the  inheritance and here of the farm and sander think it give a estate in fee from  the special appointment in the will at what time the heir shall take and it be  on this Iatter part of the will we give our opinion by which the heir be not  to take the estate but upon all the daughter die in the lifetime of the mother  as to the three objection it appear the lessor of the plaintiff be entitle  only to a moiety and therefore it be say that the verdict ought to have be  give for a undivided moiety and the defendant find not guilty as to the rest  but I think there be no foundation for this objection it do not appear by the  verdict that the lessor of the plaintiff be tenant in common at the time of  the demise it be find that the person under who the lessor of the plaintiff  claim enter into a moiety but it do not appear that the lessor of the  plaintiff be tenant in common at the time of the demise for there may be a  agreement between the two sister to part it and we must not conclude they be  now tenant in common because they be once so but if they be so there will be  no foundation for the objection tenant in common be they who hold by several  title or by one title on several right and they have several freehold and  their right be several and a action may be bring by one tenant in common  against the other for a moiety if one tenant in common be oust the other may  have a ejectment against his companion or a stranger for a moiety they can  make one joint lease but in a ejectment they must declare on several lease of  their several part they have several right and a ejectment be all action which  concern the right if a lease be make to two and one make modern er p a lease  of his moiety the lessee be tenant in common with the other and I do not think  that this judgement will make any partition or severalty between they for it  be hold in morris case   a that in a assize a judgement in severalty between  jointtenants be wrong and in this case on a recovery of a moiety the person  recover will be in the same place and condition with the person recover from  and will hold in common with the other we be therefore all of opinion that  this be a right judgement which be give in the common plea the judgement be  affirm