case wright against horn refer to in re mason Ch a c if a testator devise all  that my message in Edmonton to a and his heir and all the rest and residue of  my message land tenement and hereditament in Edmonton and elsewhere to b and  his heir for ever and a die in the lifetime of the testator the message in  Edmonton shall not go to b but to the heir at law of the testator Mod will  Cowp ejectment a testator devise all that my message in Edmonton to Francis  carter and his heir and all the rest and residue of my message land tenement  and hereditament in Edmonton Enfield and elsewhere to John Lammas his heir and  assign for ever after the make of his will Francis carter the devisee die in  the lifetime of the testator so that this become a lapse legacy by his death  the sole question be whether this latter clause of modern report the will will  carry over the lapse legacy to John Lammas the residuary legatee or whether it  shall descend to the heir at law of the testator it be admit that such a  residuary clause will carry over a lapse legacy to a residuary legatee from a  executor but the doubt be whether it will carry it from the heir at law those  who argue that it will not cite many authority in the book where it be express  adjudge that a heir at law shall not be disinherit but by very plain and clear  word or by some necessary implication from express word which show that the  testator do intend to disinherit he lane raym t Jones cro car cro Elizabeth  dyer Mod vern Prec Chan and see den v gaskin Cowp a now in the construction of  will S the court of law always consider the intention of the testator which  they collect out of his word as for instance in the case of Cranmer v web show  parliament Cas vern b upon the will of sir Henry wood who devise that if his  daughter marry the duke of c then his land shall be and remain to her and the  heir of her body but that if she die without issue then after her death and  the death of the duke they shall be and remain to sir Caesar Cranmer c she die  without issue and the duke survive and sir Caesar and Mr web marry her sister  and it be adjudge that they shall take by moieties during the duke life so  where a man devise his estate to his old son and to three more and their heir  and that one of those then shall have all the profit during life and it be  prove that the devise be only in trust for modern report er p those three it  be adjudge Fitzherbert Abr devise c that they shall release to the son who be  heir at law so in chancy case the case of well v Edward d in February last  where the testator after a devise of several pecuniary legacy add these word  and all the rest of my good and chattel and estate whatsoever I devise to my  wife c it be decree that the equity of redemption of a copyhold of inheritance  of he the testator do not pass by that clause to the wife but that it shall go  to the heir at law and so it be where the testator devise land hold of such a  manor to his wife for life and likewise the service to her for fifteen year  and all the manor to t S after the death of the wife it be adjudge more roll  Abr e that the heir at law have a good title to the service after the fifteen  year and during the life of the wife modern report there be a case in Leonard  Bennet v French Leon f where there seem to be a contrary resolution against  the heir at law but upon consideration thereof it will appear to be very  different from the principal case it be a devise of land in gauge for the  erect and maintain a freeschool and a devise of other land to t S and his heir  and all his other land to t French his heir and assign for ever in this case  it be adjudge that the devise of the land in gauge be void because there be no  person to take by that devise but that it pass to French by those general word  all other his land to French though the intention of the testator can not be  collect out of the word of this will that they shall pass to he beside this  case stand single by itself and there be not another in all the book to  support it and upon due consideration have there be some difference between  that and the principal case for in Frenchs case the devise be void ab  beginning but here it be good at the time of the make this will and the  testator himself without a prophetic spirit can not know but that it will be  good at the time of his death if it shall be object that these land may pass  to Lammas by way of executory devise upon the contingency that carter may die  in the lifetime of the testator which he may very well intend without a  prophetic spirit the answer be that for estate to pass by executory devise be  only a indulgence allow by the law where otherwise the word of the will will  be void which be not applicable to the present case because there be other  land mention in this will sufficient to satisfy the word neither be these case  Allen vent salk a where it appear on the face of the will that the testator  have land to dispose at the time the will be make applicable to this case  because here the testator have not these land to dispose at the time of make  his will for the word all the rest and residue of his land to John Lammas be  exclusive and shall only pass those land which be not before devise but the  land now in question be before devise to carter and he be dead in the lifetime  of the testator it be impossible for he to take by this devise therefore they  shall descend to the heir at law it be argue for John Lammas the residuary  legatee that by the devise of all the rest and residue of his land to he and  his heir those very land which be devise modern report to carter and which by  his death in the lifetime of the testator become a lapse legacy be legal vest  in the say Lammas so it seem plain that all the rest and residue of his estate  which the testator have at the time of make his will do pass to he by those  word and why shall not that estate which by possibility he may have in his  lifetime pass to the say Lammas by way of executory devise upon a contingency  that carter may die as he do in the lifetime of the testator especial since by  the devise to carter the heir at law be disinherit it be like that case where  the testator devise his land to two and their heir and one of they afterward  die live the say testator the other shall have the whole though by the word of  the will the testator intend he only a moiety but he shall have the other  moiety before the heir at law because it be very plain the testator intend to  pass all his estate from he so where the devise be to t S and his heir and if  he die without issue then to m h in fee and afterward t S die in the lifetime  of the testator but leave issue adjudge cro Elizabeth b this be a lapse legacy  as to t S and that the land shall pass to m h and not to the issue of t S  because such issue can not take by this devise now in the principal case the  modern report er p testator intend that Lammas shall take what he have not  before devise to carter and his intention be clear without any spirit of  prophecy that if carter have live the heir at law have be effectual disinherit  therefore these general word all the rest and residue of my land to Lammas be  sufficient to pass they to he and agreeable to the intention of the testator  himself they must necessary pass to he as to that case between well v Edward  ante a it be no authority against that construction which have be make in the  principal case because in that case the will begin with pecuniary legacy which  show that the testator do not intend to pass the equity of redemption of a  mortgage of a copyhold of inheritance to his wife and for that reason it go to  the heir at law the court be of different opinion there be no case in all the  book which come near it except that in Leonard report Leon b which ought to be  well consider the chief justice be of opinion for the heir at law against the  residuary legatee because these word modern report all the rest and residue of  my land to John Lammas be exclusive of the land devise to carter so that by  his death in the lifetime of the testator the legacy to he be lapse those land  must descend to the heir at law another judge be of a contrary opinion  videlicet that it seem very clear to he that the testator intend to disinherit  the heir the chief justice likewise agree in this opinion as to the land  devise to carter but that it do not follow that because he have disinherit he  of the land in relation to carter therefore he intend to disinherit he of  those land which he have devise to Lammas so that this matter be fit to be  consider and so it be adjourn it be say S c fort the court hold that the  devise of all the rest and residue of my message land c do not convey what be  express devise before for that will S must be construe accord to the intent of  the testator at the time of make the will that his intention be to give his  whole estate in that message to carter in fee that at the time the will be  make he have no rest and residue leave in that message and that the devise to  carter be void the house pass to the heir at law and not to John Lammas and in  east r term Geo in the case of roe v Fludd where the testator devise land to r  b in fee and all the rest and residue of his estate real and personal to e f  in fee and r b die in the lifetime of the testator it be hold on the authority  of the above case that e f can not take the land devise to r b because that be  not any part of the rest and residue of the testator at the time the will be  make fort see Goodright v Opie ante c hilary term the ten of George the first  in the king bench sir John Pratt Knt chief justice sir Littleton powis Knt sir  John fortescue aland Knt sir Robert Raymond Knt justice sir Philip York Knt  attorneygeneral sir clement Wearg Knt solicitor general