Rent to his Majesty, and with 100l. per Annum to Henry M. and his Heirs, and also 150l. to his Brother Benjamin; and being thus charged, upon his dying before Age or Marriage, his Share, with the Profits thereof thus charged, is given to his younger Brother and Sisters, the Survivor and Survivors of them, Share and Share alike. Then 'tis Observable, that the Fee-Farm Rent, payable to the King, his Heirs and Successors, is 500l. per Annum; upon which Account 'twould be very difficult to conceive, that the Testator, by this Devise of the deceased's Part to the Survivors, Share and Share alike, did intend to such Survivors only an Estate for Life, when at the same time he subjects and charges it to and with the proportionable Payment of the said yearly Fee Farm, and the 100l. to H.M. and his Heirs, which are Rent-Charges in Fee, and cannot reasonably be understood to be charged on Estates given barely for Life.
One Part of a Will to help to construe another Part.—Besides, The Point here is upon the Construction of a Will, and the Testator's true Intent and Meaning, in any Part that is obscure, ought to be collected out of any other Part or Words of the Will that may explain it: Now it being plain, that Hezekiah's Part was a Fee-simple, and thus charged, it seems to be as plain, that the very Inheritance of that Part should upon his Death go and remain to the Survivors, Share and Share alike; that is to say, That they should be Tenants in Common in Fee-simple of that Part, the same being thus chargeable with the two Rents, and with the 150l. to Benjamin: For otherwise this Devise over (which was de signed in their Favour and for their Benefit) might have turned to some of their Losses and Prejudice: For they might have paid the 150l. to Benjamin, and have died, before they were re-imbursed out of Hezekiah's Share, had the same been only an Estate for Life; and it cannot easily be supposed, that he intended his younger Children by the second Wife should have a better Estate in his Shares of the New-River Water, devised as aforesaid, than the younger Children by the first Wife had, but that their Shares in it should be equal: But by this Construction, Benjamin by the second Venter must carry away Anne's Share from her Sisters and Brother of the first Venter. Here's no need of the common Care in construing Wills, not to disinherit an Heir by general Words; for Hugh is disinherited by this Will, whether this surviving Interest be a Fee, or for Life. The Intention here was to make an equal Provision for all the younger Children; the Part and Share of the Person dying, is the Inheritance in the Part and Share of the Person dying in the New-River Water; the three Sisters were [210] to have their Shares discharged of the Fee-Farm Rent; but if this be only an Estate for Life, then those who were designed to have the least Benefit by the Will, are to have the greatest, for they are Heirs to Hezekiah; whereas the Children by the first Venter seem to be most favoured by the Will, because they are to have their Bequests free from those Incumbrances. The Testator recites his own Seisin in Fee of so many Parts and Shares, and then Devises those Parts in Fee: How can this Clause of Limitation to Survivors be construed to mean otherwise, than that the whole Fee of that Proportion should survive? The Cases cited in Rolls, on the other Side, are only Devises of the Land, and not of his Share.
Then 'twas said, That here was no Tenancy in Common; that 'tis true, equally divided, and equally to be divided, make a Tenancy in Common; but 'tis upon the Account of the Word divided; that to two equally, will not be so construed, 1 And. 29. and if the Word equally will not, why should Share and Share alike? These Words do not shew any Partition of the Estate in Fact, nor in the Intention of the Testator; and one of these is necessary to prevent a Survivorship. Wherefore, upon the whole it was prayed, That the Judgment should be reversed.
Argument for the Defendant in Error.—On the other Side it was argued with the Judgment, That the same was Legal, and ought not to be reversed: For that as to the last Thing stirred, it must be a Tenancy in Common; the Words Share and Share alike imply a Division, or Partition in esse, or in futuro, and it hath always been so construed. The Distinction between divided and to be divided hath been long since Exploded, as importing no Difference.
Then it was argued, That here was only an Estate for Life given by this Clause to the Survivors; that a Devise of the Share is the same with the Devise of the Land; that the Share doth not signify the Estate or Interest, but the Quantity
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