barret age moon word in the last clause of a will to the use of such child or  child as shall survive where the testator have but two explain his intention  that both shall take equal on survive he and under the devise the survivor of  they and the heir c a by his will date that march begin with declare a  intention to dispose of his whole estate and then after give some small legacy  go on thus I give to my lovinLr wife Elizabeth all my personal estate to her  own use and her own disposal and I give her also a year out of my real estate  mention it by name during her widowhood but in case she marry again then my  intention be that this pound a year shall come to my child or child and in  case either of my say child shall die before the other then all the rest of my  real estate shall go to the survivor of they and his heir for ever and for  want of stitch survivor then it shall return to my say wife and I further  intrust my friend Jackson to apply my say estate to the best advantage as be  shall think proper to the use of such child or child as shall survive as much  as in he lie Lord chancellor the word of this will be very uncertain and  inaccu Kenyon rate b t I think the testator intention be plain and that the  court may construe it accord he live I find about a month after make his will  and probable may then be ifl though there be no proof of it in the case I see  the will be prove within six week after the date in order to construe it right  and find his intention the circumstance of his family and estate must be  consider as to family lie have a wife a son and a daughter as to estate he  have a small freehold he have likewise some personal estate and it be natural  to think he have some intention of provide for every part of his small family  since he have declare a intention of dispose of the whole and though I agree  that notwithstanding this if there be any chasm it must go to the heir yet  that declaration be a reason to give his word the utmost latitude after this  declaration be give some small legacy and then give his wife all his personal  estate to her own use and disposal if this be take as a specific legacy and  exempt from debt or as I rather think it a bequest of the residue in either  case the child can take nothing of it then be give her a annuity of pound out  of his real estate and in case she marry again he declare his intention to be  that this pound a year shall come to his child or child the word come seem to  show the testator understand it will by that mean fall into the whole he go on  and in case either of my child shall die before the other then all the rest of  my real estate shall go to the survivor of they and the heir for ever c the  intention of this clause seem to be that the pound a year shall fall into the  estate on the event mention but do it rest there it will not be sufficient as  the implication be not a necessary one it will carry it beyond the case in  Vernon thopgh that go further than the case of gardener v heldA Eq ab Vaug I  think the case in vern a right determination Kenyon however because the two  coheir make but one heir but what I principal rely on here be the last clause  I further intrust my friend Jackson and his heir to apply my say estate to the  Kenyon er p best advantage as be shall think proper to the use of such child  or child as shall survive as much as in he lie this I think amount to a devise  to his own child or such of they as shall survive the testator the word as he  shaft think proper I agree with Mr solicitor do not give Jackson a power of  divide the estate between they c but relate only to his management of it on  consider this clause I be of opinion it must be prepose which be not uncommon  in order to attain aconsistent construction I think this clause be insert turn  upside down row and shall have be put two before the clause which give the  real estate to the survivor this make it a plain consistent disposition a defy  to the two child and the survivor of they and the heir of the survivor the  only objection to this construction arise here that if the son die first it  give away the fee from he though he shall leave child but the case be the same  with the daughter and the testator may intend it I be of opinion there be two  survivorsbips which the testator have in view in the clause wherein he intrust  his friend Jackson to apply big estate to the use of such child or child as  shall survive he mean shall survive I the testator as the gentleman have argue  it will be very strange he shall create a trust for the benefit of a infant  which be not to take place tium after the death of another another material  observation which have not be make confirm this construction I make of these  word and that be he direct Jackson to apply to the use of such child or child  as shall survive this plain show that their survive each other be not what the  testator have there in view for be use the word child and as Kenyon he have  but two if one die a child only and not child co survive their survive  therefore in this case can not relate to each other but to the testator this I  think be the most consistent construction and make a provision for both the  child what be contend for on the other side for the defendant the son ivbich  be that the estate be undisposed of by the will and descend to he as such will  leave the daughter the plaintiff whole unprovide for the consequence be that  the decree must direct a account of the annuity and of the rend and profit the  surplus whereof the plaintiff and the defendant be entitle to in equal share  the annuity be devise to the wife Payable yearly and it appear she die within  the year big lordship say she can not be entitle and nothing be allow for it  note his lordship be desire to declare whether t that be entitle as joint  tenant or tenant in common in his decree but he decline it