case Owen v Owen march the d a devise all the residue of her estate to her two  niece mary and Elizabeth daughter to her nephew William Owen and whether his  wife who she desire to be trustee for their child to take care of their legacy  and then say my will be that my estate be equal divide between mary and  Elizabeth who I appoint my executrixs accord one of the niece die in the life  of the testatrix and all the next of kin have small legacy except one the  devise to the two niece be not a jointtenancy for the word equal divide though  not annex to the clause which give the residue can relate to that only and if  they have be both live at the death of the testatrix they will have take as  tenant in common the testatrix after several legacy bequeathe in these word  all the rest and residue c I give and bequeathe to my two niece mary and  Elizabeth daughter to my nephew William Owen and whether his wife who I desire  to be trustee for their child to take care of their legacy for they they be of  tender age and my will be that my estate be equal divide between my two niece  mary and Elizabeth who I nominate and appoint my executrixs accord one of the  niece die in the life of the testatrix the question be whether William Owen  and whether his wife stand in the light of trustee of a moiety of the residue  for the next of kin and whether the testatrix be to be consider as dead  intestate in respect to that moiety or whether the devise to the two niece be  a jointtenancy and William Owen and whether his wife be trustee for the  survive niece only atkins N B all those who be next of kin and entitle under  the statute of distribution have small legacy leave they except one for the  plaintiff the next of kin be cite the case of page v page before Lord  chancellor king wms and Holderness v Bayner before Lord Hardwicke Mr brown for  the defendant the survive niece urge the rule of civil law that where heir be  institute which word be of the same import as legatee in our law and one die  the legacy go to the rest by way of accretion because the same person can die  testate and intestate as to the same thing he rely much on the authority of  hunt v Berkeley at the roll the that of June before sir Joseph Jekyll mary  Berkeley possess of a personal estate on the that of December make her will  whereby she give both specific and pecuniary legacy to her brother Francis  woolmer and to her two son in law the defendant and likewise give legacy to a  child of each of they and also legacy to other person and then give all the  rest and residue of her personal estate to her beforementioned brother and son  in law to be equal divide among they and make they executor in January Francis  woolmer die afterward in march the testatrix die the question be whether the  three part of the residuum devise to Francis woolmer shall go to the next of  kin or to the survive executor and the master of the roll decree for the  executor it seem that if there be a jointtenancy create by a will and it  happen by whatever cause that one of the jointtenants be prevent from take the  whole will vest in the survivor after the testator death bring v clay Charles  Rep Humphrey v tayleur Amb dowset v sweet ibidem Frewen v Relfe bro Charles  Rep Baldwin v Johnson bro Charles Rep Buffar v Bradford post vol Lord  chancellor the first question that have be make in this cause be whether these  two niece if they have survive the testatrix will have be tenant in common it  be clear to I that if both of the niece have be live the word to be equal  divide will certain have make a tenancy in common for though as have be true  say these word in a strict settlement at commonlaw have never be determine  bare of themselves to make a tenancy in common yet in a will it be settle that  these word will make a tenancy in common both with regard to real and personal  estate see prince v heylin ante and the case cite in the note the only  distinction attempt by the defendant counsel in this case be that the word  equal divide be not annex to the clause that give the residue and therefore  must be relative to the subsequent clause which nominate the two niece  executrixs but the construction will be absurd because as executor there can  be no division of their interest or authority for though a man may appoint  executor in such a manner that their authority may commence or determine at  different time yet he can nominate person executor and confine one of they to  one branch of his estate and another to another for they have a joint  authority which extend to the testator whole estate and can be divide into  distinct and separate power and therefore these word must be apply to the gift  of the beneficial interest if therefore they be tenant in common what be the  consequence of the death of one the life of atkins the testatrix why clear  where it be either a pecuniary legacy or of a real estate that be give to two  person to be equal divide between they and one of they die in the lifetime of  the testatrix it be a lapse legacy and the share of the person so die in the  present case ought to be consider as such the next question be whether this  shall go to the survive executrix or be distribute among the next of kin as a  undisposed moiety there be two thing to be consider in regard to this moiety  the legal interest and the equitable interest by the maxim of law a legal  interest of a lapse legacy atkins er p certain passes to the executor but in  the judgement of this court the trust and beneficial interest be give likewise  and accord to the case determine here since foster and Munt in vern must go to  the next of kin though in all those case the legal interest be unquestionable  allow to be in the executor page v page in wms be a strong case where one  devise the residue of his personal estate to six person to each a six part and  make they executor and one of they die in the lifetime of the testator Lord  chancellor king be of opinion the legacy do not survive and decree his share  to the next of kin this case on the that of August be cite before Lord Talbot  and follow by he and by I afterward in the case of Holderness v Reymer sir  Joseph Jekyll late master of she roll in hunt v Berkeley differ entire from  page v page but this be only one case against many and the reason he go on  there be not sufficient to support the doctrine of that case for the next of  kin in this respect be similar to a heir at law and as he do not take by the  intention of his ancestor but in his own right by act of law so with regard to  the personal estate the next of kin take it in like manner in succession ab  having made no will and not by the intention of the testator but as cast upon  they by the law therefore I be of opinion the plaintiff be entitle to a  distribution so Bagwell v dry p W pi page v page p W stram SC Peat v chapman  Ves see man v man stram Cheslyn v Creswell bro p c bro p c and Edward William  Owen and whether his wife the father and mother of the two niece be no more  than natural guardian to take care of this legacy for they can be in law  trustee unless some interest in the thing give be actual vest in they