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as to one moiety thereof, to the use of the appellant and his heirs; 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 heirs.

The appellant conceiving himself aggrieved by this decree, appealed from it; insisting (C. Talbot, T. Lutwyche), that by the words of the will, he was entitled to the fee and inheritance of all the lands to be purchased; it being the testator's intent, that the devise should take place for the whole estate, and the inheritance vest in both Jerome and the appellant, in case both of them survived him; and if only one survived, that then be should have the inheritance of the whole; and for this purpose the testator had used very proper words, viz. to the survivor and survivors of them. That the construction in making a tenancy in common of the inheritance, was not warranted by the words of the will; for though the words equally to be divided have been taken to make a tenancy in common in a will, where the intention of the testator appears to be so, yet they are not proper and legal words for that purpose; and therefore have been held not to be sufficient to make a tenancy in common in a deed. But here the testator had expressly said it should go to the survivor, which took away all presumption of his intending a tenancy in common, much less that he intended a joint tenancy for life, with several inheritances: the consequence of which was 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 might descend to the heir at law; which seemed to be quite foreign to the testator's intention. That no sale should have been directed of the manor of Everleigh, the personal estate being sufficient for the payment of all the debts and legacies, with an overplus; or at least not until it appeared that there would be a deficiency of the personal estate for that purpose. That the appellant was further aggrieved by the decree, inasmuch as it was thereby directed that the surplus of the rents and profits of the real estate, as well as of the money raised by the sale thereof, should be laid out in a purchase; whereas the appellant insisted, that he was in all events entitled to and ought to receive the whole rents of the real estate, and the whole profits of the surplus of the personal estate, at least during his life, subject to the payment of £20 per ann. to Martha Barker; and that therefore no part of such rents and profits ought to be invested in the purchase of the lands decreed to be purchased; but that the whole rents until a sale, if any sale should be necessary, as well as the interest of the purchase money, until another purchase [107] was made, and the interest of the testator's other personal estate, after payment of the debts and legacies, ought to be paid to the appellant.

On the other side it was contended (P. Yorke, W. Peere Williams), that the decree was just, and agreeable to the rules of law and equity; for that the court, in making it, proceeded upon this foundation, namely, that by the will the appellant and Jerome Barker, if he had lived, would have been joint-tenants for life of the lands to be purchased, with several inheritances to their respective heirs; 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, became a lapsed devise; and consequently, though the appellant, who was the other joint-tenant for life, was entitled to enjoy the whole estate for his life by survivorship; yet the reversion and inheritance of Jerome's moiety being undisposed of by the will, had descended to the respondent Penelope as the testator's heir at law. And this construction of the device was apprehended to be right, and the only way of understanding it, as hereby all the words of the clause, expressive of the testator's intent, could have a proper effect. It was therefore hoped that the decree would be affirmed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of should be affirmed, with this direction; viz. That the appellant might be at liberty to apply to the Court of Chancery, for to receive to his own use the surplus of the rents and profits of the real estate, over and above what should be sufficient, together with the personal estate, to pay off the testator's debts and legacies, and other payments directed by the will; in case it should appear upon the account that there was, or before the sale should be any such surplus; and likewise to apply to the said court, that no more of the said estate should be sold than was necessary to make good the payment aforesaid; whereupon such direction should be given as should be just. (Journ. vol. 23. p. 112.)