Alston v. Branch, 5 N.C. 356, 1 Mur. 356 (1810)

July 1810 · Supreme Court of North Carolina

5 N.C. 356, 1 Mur. 356

Alston and wife and others v. Branch and Arrington.

> From Halifax.

A. .devised all his cash on hand, certificates, stock in trade, &c. also all his estate real, personal, or mixed, .not before devised, “to his three illegitimate daughters, B,- C, & D., between them and the heirs of their bodies forever : but if either of the said children should die before they arrive at the age of eighteen years, or marries, then the estate of the one deceased, to be equally divided between the surviving two, to them and the heirs of their bodies forever ; and if two of the said children should die, before they arrive at the age of eighteen years, or marries, then the portion of the two deceased, shall descend to the surviving one, and the heirs of her body forever : but if all the said daughters should die before they arrive at the age of eighteen years, or marry, and have issue thereby, then all the cash, certificates, &c. and other property aforesaid, to be equally divided between E. F. G, &c.

D, one of the daughters, intermarried with J. S, and died after attaining the age of eighteen years, but without issue.

;0’s estate became absolute upon her arriving at the age of eighteen years, and upon her d'.atli, without issue, did not vest in her surviving sisters.

Cross-remainders between the daughters, are not to be raised by implication in this case. And the Court will construe the word or as and to effectuate the intention of the testator; his intention being, that if either of the daughters should die under the age' of eighteen years, unmarried, and without issue, that her estate should go over to her surviving sisters: but if either of them should attain the age of eighteen years, or should marry and have issue, that her estate, before contingent, should become absolute upon the happening of any one of these events.

Micajab Thomas, late of Nash county, deceased, by his last will and testament, devised and bequeathed to his three illegitimate daughters, Mourning, Margaret and Temperance Jackson, certain negro Slaves, all his cash on hand, certificates, stock in trade, debts due by.bond og otherwise,. and all and every thing else of his estate, real, personal or mixed, not devised or bequeathed to others, and directed the said estates to be equally divided between them, when they should arrive at the age of eighteen years, or marry 5 “ between them and the heirs of their bodies forever : but if either of the said children, Mourning, Margaret and Temperance, should die before they arrive at the age of eighteen years, or marries, then and in that casé, my will and desire is, that the estate of the one deceased should be equally divided between the surviving two, fSF them and the heirs of their bodies forever and if two of the said children should die before they arrive at the age of eighteen years or marries, then it is my will, that the portion of the two deceased shall descend to the surviving one, and the heirs of her body, forever ; but if all my daughters, Mourning, Margaret and Temperance, should die before they arrive at the age of eighteen years, or marries and has issue thereby, then the said negroes, with their increase, money, certificates, stock in trade, and all other property which they are entitled to by this will, shall go to, and be equally divided between, Bennet Boddie, George Boddie, Temperance and Mary Perry, daughters of Nathan Boddie, and my two nieces, Rhody Ricks and Mourning Arring-ton, to them and their heirs forever.”

Mourning, one of the daughters, intermarried with James Branch, and died, after attaining the age of eighteen years, and after having a still-born child. She had »o issue born alive. Margaret intermarried with John Alston, and Temperance with James Alston, and the said Alstons and wives filed their bill against James Branch, who survived his wife Mourning, for an account of so much of the estate of the testator,-Micaj ah Thomas, as had been allotted to the said Mourning shortly after her mar.riage, and as had come to the hands of said Branch: and also against William Arrington, who had been guardian to the said Mourning, to restrain him from paying over to Branch such monies, belonging to the estate of the said Mourning, as were then in his hands; and the bill prayed that Branch might be decreed to deliver up to Complainants, the negroes and other estates, and pay over to them such monies as were in hie hands, belonging to the estate of the said Mourning.

To this hill the Defendants demurred, and it was submitted to the Supreme Court, Whether the estate vested absolutely iñ Mourning when she attained eighteen or when she married j or whether it ceased and determined > by her death without issue after marriage 2

Haywood, for the Complainants,

contended, that, the testator had two events to guard against; one was, a marriage before eighteen, which, owing to the inexperience of his daughters, might be very imprudent: the other was, the death of his daughters before marriage, or after marriage and before having issue, in which event the whple real estate must escheat to the public : for being illegitimate, the surviving sisters could not inherit the lands, and being married, the sister about to die could not devise them. For the first of these events Hhe testator provided, by saying, that if one or two of his daughters die before eighteen, the estate shall go over: and marriage and having issue before such death, to wit, death before eighteen, will not cause the estate to vest absolutely, but upon such death the estate shall go over, and nothing be left for the issue. For the object of the testator was, to prevent the early and imprudent marriages of his daughters, and there is no ground to believe that he intended the estate of the legatee to become indefeasible, unless she attained eighteen, married, and had issue thereby. The plain intent of the testator was, to create cross-i’emainders amongst the daughters; this intention is not positively expressed, but it is necessarily inferred from the terms of the devise. There is no rule of construction better established by authorities than this, that if a testator give property to several persons, and direct that all that property shall go over, upon the death of the .legatees under certain circumstances, such property shall not go over in parcels, but will remain amongst such of them as survive. So if he direct that it shall go over if all the legatees die under such circumstances, if one or some of them die under them, his or their share or shares will not go over, but will remain with and vest in the survivors, until' all die under such circumstances. If these rules of exposition be correct, then, as the estates given to these sisters are in the present case to go over if all die. after marriage without having issue, the share of one dying thus situated will remain with the surviving sisters; and as all the property to which they are entitled by the will is to go over on that event, the share of one who dies after marriage and without having issue, will vest in the survivors, till the event takes place on which all the estate is to go over. It remains, then, to be proved, that these are the true rules of construction.

In 4th Leonard, 14, 32d Eliz., A. devised part of his lands to his eldest son in tail, and the other part to his youngest son in tail, and directed that if any of his sons died without issue, then the whole land should remain to a stranger in fee, and died. The younger son died without issue, and the stranger entered : and it was adjudged that his entry was not lawful, and that the eldest son should have, the land by implicative devise. Another case is reported in Raymond, 452, and is stated in Vinera M. 304, 305, PL 7. Devise to A. and B, his daughters, and their heirs, equally to be divided; and in case they happen to die without issue, then he devised to F, a nephew. One of the sisters dies, her part remains to the surviving sisters; and Pemberton, Chief-Justice, said, the words “ if they die without issue,” cannot .be construed otherwise; for then he gives all his lands to F, which imports that both shall come in at one time; which cannot be, till both of the (laughters are dead without issue, unless by the death of one without issue, the other should lose her moiety, which cannot be thought to be the intention of the devisor. Another case is reported in Cowper, Si. Testatrix devised all her undivided moiety to trustees to the use of her husband for life, remainder to her sons to be begotten on her body, and in default of such issue, to the use of all and every the daughter and daughters of P. H. and her the testatrix, lawfully to be begotten, and to the heirs of their body or bodies, if more than one, as tenants in common, and not as joint tenants, ancl for default of such issue, then to the use of her right heir. She died, leaving J. W, her heir at law, and two daughters, Constantia and Catharine. Constantia died at the age of two years, and the question was, Whether on her death without issue, the heir at law was entitled, or whether there were cross-remainders ? The Court said, the limitation over is of the whole estate, limited to • all the daughters, and is to take place on the failure of all and every the daughter and daughters, and the heirs of their body or bodies 5 and the limitation for default of such issue is to the heir at law. As nothing is to go to the heir whilst any of the daughters or their issue remain, they must amongst themselves take cross-remainders: in other words, the estate of the one dying, went by implication to the survivors. In 4 Term Rep. 711, the devise was t( to all and every the daughters of the body of my daughter Martha, and the heirs male of the bodies of such daughters, equally between them, if more than one, as tenants in common, and not as joint tenants 5 and for default of such issue, all his said premises unto his right heirs, forever. Lord Mansfield said, in default of issue he gives all Ms said premises unto his right heirs, forever he clearly intended, therefore, that the whole should go together. If no cross-remainders be raised between, the daughters, it would go to the right heirs by separate portions, on the death of each. And the Court decided, there were cross-remainders by implication.

The cases cited establish the rule, that a devise over' of all upon the event of death after marriage and before issue, will not carry over the estate in parcels ; nor will it, on the death of one under such circumstances, take from the others their shares, so as to give the whole over: but the share of the one so dying will vest by implication in the two surviving. And if such implication will arise on the devise over of all, how much stronger and less liable to doubt, is the case, when that going over is not to be till the death of all, &c. The case here is, “ if all die after marriage and before they have issue and this of itself is fully sufficient to raise an implication in favor of the survivors. In 2 Show. 135, Í36, the tes» tator devised to his two daughters, and if they die without issue, to B. One of them died without issue; and the Court said, here is a plain intention that B. shall have nothing till both children be dead, and it is such an intention as both nature and prudence direct $ and the Court unanimously decided for the surviving daughter. As to the point now under consideration, there is no difference between this case and the one now before the Court, except that in the latter there are three daughters, which at this day makes not the least difference. The doctrine, that there cannot be cross-remainders by necessary implication amongst more than two, is exploded — Cow. 3Í. In 5 Term 427", 431, even in the case of a deed, there is a decision against the grantee in the ultimate limitation, because it was only to take place on the death of all the children without issue. In Cowp. 79, the devise was to his two brothers and one sister, and the heirs of their bodies lawfully begotten, and for want of such issue, over. Lord Mansfield and Wilies, Justice, said, there were but few cases which came before the Court where cross-remaimlers are not meant by the testator and/they said, want of issue there plainly-meant issue of all, and decided in favor of the survivors. And may it not be said, in the present case, that the testator did not mean that those in the ultimate limitation should take,*whilst any daughter lived, or any .issue of theirs existed at the death of a surviving daughter ? In the present case, the words are, “ if all die not having issue j” in the last case cited, the words were, “ and for want of such issue.”' If the meaning of these words was, for \yant of issue of all, is not the same meaning much more unequivocally expressed in the words, “ if all die without issue ?” It fellows, then, that on the death of one not having issue, her part is not to go over, but to remain with the others till they, also, die under the prescribed circumstances. It also follows, that the Complainants, being the surviving sisters, are entitled to the share of their deceased sister Mourning, unless the will of the testator making such a disposition be incompatible with the rules of Law.

It is however contended, that the word or, used in the devise, was intended by the testator to be used copu-latively, and signify and, and that the devise really means, “ die before eighteen, and before marriage, and having issue thereby and that therefore, the estate of the legatee would be indefeasible until all the events happened, and the estate would be absolute whenever it became impossible for all of them to happen; as if one arrived at eighteen, or if she married or died without leaving issue : whereas, if the sentence is to be read in the disjunctive, if either event happens, the estate of the legatees determines ; that is to say, if either they die before eighteen, or before marriage, or being married, before they have issue thereby. It is true, that there are? cases where or is to be construed and; but they are ca-'1 ses-where the meaning of the testator must be evidently disappointed, unless such construction be adopted : as if land be devised to A. or his heirs, it is clear that the testator intended a fee to A.; but A. cannot have a fee Unless the will be read “ to A. and his heirs m,” the Court will, therefore, so construe it, that the evident intention of the testator may not be defeated. JButsuch constructions are not to be adopted, except in cases of evident necessity, and where the meaning of the testator indubitably requires it: not where his meaning is doubtful, much less "where there is reason to believe that his meaning is expressed and conveyed to us by the disjunctive which he has used. In the present case, there are strong reasons to believe that the testator intended to use the word or in. the disjunctive ; he intended to guard against the imprudent marriages of his daughters before they attained the age of eighteen, and this intention would be entirely defeated if every event mentioned in the will must concur to defeat their estates, that is, dying before eighteen, and before having issue by marriage • which is the consequence of reading or for and: and notwithstanding the design was to defeat her estate, if one of the daughters married and died under eighteen, yet the very circumstance of marrying under eighteen, will render it indefeasible. In 12 Mod. 276, Jennings devised to his son Thomas, and his heirs forever; “ but if it should happen that my said son shall die before he attain the age of twenty-one, or without issue of his body lawfully begotten, then my said land shall be divided between my daughters Mary and Elizabeth.” Thomas, the devisee, arrived to the age of twenty-one, made his will, and died without issue; and itv was insisted for the devisee, that the will of Thomas, the father, should be read thus: “ die before twenty-one, and without issuefor said the counsel, otherwise if he have issue before twenty-one, such issue shall not inherit. But Holt, Chief-Justice, answered, there is no necessity to construe or as and, for it might be the design to hinder him from marrying till his age of twenty-one. In 2 Ver. 388, there is another decision of Holt, Chief-Justice, to the like effect. The testator devised a house to his sons James and Thomas; 44 but if any of my said children shall die before twenty-one, or unmarried, his part to go over,” &c. Thomas died after twenty-one, but. unmarried ; and Holt decided, that Ids share went over. Another reason for not construing or as and, is this, that if or be construed copu-latively, and one of the legatees die under eighteen, and also unmarried, and also without issue, the estate will go over; but if she die after eighteen, the estate will have vested in her absolutely. Suppose then, she dies after eighteen, and before marriage, her sisters cannot take the real estate mentioned in this clause of the will, because of their illegitimacy; nor can she devise them to her sisters because of infancy ; and they cannot go over to those in remainder, because the estate vested in her absolutely on her attaining the age of eighteen : the consequence is, it must go to the public, for want of an owner j and so must the personal estate also, if she die intestate. Suppose another event, that one of the daughters attain the age of eighteen, and marries and dies without issue, what is to become of the real estate, if her attaining this age vests the estate absolutely in her ? It cannot go to the husband as tenant by the curtesy, nor cán she devise them to her sisters because of her coverture, nor can the estate descend to them because of their illegitimacy. Now the testator did consider of this event, for he has expressed the case of death before marriage and having issue thereby, which certainly means, death without issue, after being married. If he meant that the estate should not be defeated, unless the legatee died both'under eighteen and unmarried, and consequently that marriage before eighteen, should render it absolute in the legatee, then he must have meant to leave the cases of death after eighteen, and before marriage, and death after marriage, and without issue, wholly unprovided for. And are we, against the plain words of a will, which amply provide against such consequences, if understood in their natural and common sense, to presume, that the testator did not understand what he said, to substitute one word for another, and so to let in all the evils which they are calculated to repress ?

As to the cases in which or has been construed as and, some of them have been exploded, and those which remain, are clearly distinguishable from this case by this plain circumstance, that there was no perceptible or probable intent of the testator to be disappointed by such construction, nor any inconvenience to be incurred thereby. Whereas, in the present case, the real estate mentioned in this clause of the will, will be exposed to escheat, and the personal estate also, in case of intestacy, and a plain and perceptible intent of great moment defeated, if such construction prevail. The ca,4e of Soule and Gerard, Cro. El. 525, was thus: the testator having four sons, devised to his son Richard and his heirs forever i and if he died within the age of twenty-one, or without issue, the land to be equally divided between his other three sons. Richard, the devisee, liad issue Mary, and died before, coming to the age of twenty-one ; and the Court decided that Richard had an estate-tail; whereas the construction now contended for by the Defendants, would have given a fee, determinable on the contingency of death before twenty-one, and without issue. This case, however, is denied to be law, by Holt, Chief-Jus-! tice, in 12 Mod. 277. And in 2 Fern. 377, there is a case cited, where, upon a special verdict, it was determined upon the same words, that if the son die before twenty-one, although he leave issue, that issue shall not take ; which is to read the will as it stands. In 3 Jltk. 194, Walsh v. Peterson, the testator gave to his son Matthew an estate in fee; “ but in case he shall happen to die before he shall attain the age of twenty-one, or without issue, then over.” The sou died after twenty-one, and without issue; and it was decided that the estate did not go over, because both contingencies did not happen, which is tantamount to saying, he must die before twenty-one, and before he has issue. The devisee was an only son, and there was nothing in the will, nor in the circumstances of the devisee, to obviate the presumption that the testator did not mean to leave the issue born before twenty-one, without provision. In the case cited, if the issue did not take, the estate would have gone to strangers from the blood of the testator, which no-doubt, strengthened the presumption $ but in the present case, if the issue born before eighteen shall not take, the estate wj]j g0 to the two surving daughters of the testator. In. 3 Mk. 390, the testator gave to his son A. in fee, “ and in case he shall happen to die in his minority, and unmarried, or without issue, then over.” The devisee came of age and married, but died without issue; and the Court decided that the estate did not go over, because he did not die under age and unmarried, nor unmarried and without issue. Here, by the words of the will, two circumstances in the conjunctive were to concur, death under twenty-one and being unmarried, and no change necessary. Next came the words, or without issue ; and they were construed to mean, or dcatJi without issue under twenty-one. They were not construed to mean three concurring contingencies, death under twenty-one, un • married, and without issue. So it is no precedent for changing or into and: and the Court said it was no way like the case of Soule and Gerard, which is the leading ease, and always cited upon such occasions. Another case is in 2 Stra. 1175, “ I give, &c. to my grandson ill fee, but in case he dies before he attains the age of twenty-one, or marriage and without issue, then over.” The devisee attained twenty-one, and died unmarried: the Court said, they would read the will, “ if he died under twenty-one, unmarried, and without issue.” The Court did not go upon the ground, that the issue born, before twenty-one, would, without this construction, be disinherited ; but inclined to this construction, as the contingency was in defeasance of an estate: and there does not appear to be a single case, save that in 3 Mk. 194, where the Court adopted the construction upon the ground that otherwise the issue born before twenty-one, would be dis-inhei’ited ; and in the case in Mk. the intent in their fa-vour could not be mistaken. The last case in 3 T. Bep. 470 — in that case, if the Court had not construed or as and, cither a life-estate given in the same' instrument, would have been defeated, or the estate in remainder must have been void : so there was an absolute necessity, thus to construe the instrument.

From these views of the case, the conclusions are, that the estate is to go over to the ultimate devisee, not before all the daughters die before eighteen, or before leaving issue by marriage ; that if one dies before having issue by marriage, her part goes over to her surviving sisters, by a necessary implication in the will, arising from the words “ if all die, then all the estate to go over.” And such disposition being to take place in a reasonable time, is a legal one’; and that there is nothing to hinder the surviving sisters from taking, according to the intent of the testator.

Browne, for the Defendants.

In the construction of every will, the principal thing to be considered is, the intention of the testator, and when that is ascertained, it must be carried into effect, if consistent with the rules of Law. This intention is to be ascertained from the words which the testator makes use of, and 'the circumstances of himself and the legatees, as far as they are disclosed to the Court, either expressly or by fair implication. The only circumstance expressly stated in the bill is, that the first legatees were the infant illegitimate daughters of the testator. From the considerable specific legacies devised to these illegitimate children ; from their being made residuary legatees, and from other children not being mentioned even as ulterior devisees, it may be fairly implied, that he had no legitimate children. From his mentioning the two eldest of these daughters coming of age at the same time, it will follow that they were twins; and from the. ulterior devisees not being of his name, or mentioned by any term of relationship, it may reasonably be presumed, that they were strangers to his blood and family. The object to be avoided would be. the chance of the, property’s vesting in the State, by one or more of the legatees dying before any one should be capable of taking it under the statute of distributions, or the legatee herself should be of sufficient age to dispose of it by will. This risk would be sufficiently guarded against, by devising it over in case one or more of them died before she or they either married or attained eighteen years of age $ for if one of them married, then her property would vest in her husband; or, if one of them attained eighteen years of age, then sl\e might certainly devise it, although it be doubtful whether she could do it before.^*

Supposing these to be the probable objects and intentions of the testator, we will proceed to an examination of that clause of his will set forth in the Complainants’ bill. In the first part of that clause, the property now in question being personal estate, is absolutely bequeathed to his three daughters, to be equally divided between them when the two eldest (twins) arrive at the age of eighteen, or many, (whichever event first, happens.) “ But if either of the said children, Mourning Thomas, Margaret Thomas, and Temperance Thomas Jackson, should die before they arrive at the age of eighteen years, or marry, then &c. But if all my daughters, &c. should die before they arrive at the age 'of eighteen years, or marries, and has issue thereby, then &c.” If the testator had stopped at the devise over to the survivors incase of one dying before she arrived at the age of eighteen years, or married, then, unquestionably, the devise over could not have taken effect; for Mourning both arrived at the age of eighteen years and married. But it is said, that the whole being devised over in case of all dying before they arrive at the age of eighteen years, or marry and have issue thereby, shews that the testator intended that if all his daughters died before they arrived at eighteen years of age, or before they married and hadnssue thereby, the whole should go over to Bennett Boddie, &c. — and also intended that the whole should be kept together until-it should be ascertained whether that event should happen or not; and that cross-remainders between the daughters were thus raised by implication, to take effect if any one or two of them died either under eighteen years of age, or before being married and having issue thereby. On this position the argument for the Complainant seems to rest ; and to this it is answered,

1st. That even if the contingency on which the Restate is devised over to Bennett Boddie, Ac. is such as Complainants contend for, still cross-remainders between the daughters could not be raised by implication; and

2dly. That the contingency on which the estate is devised over to Bennett Boddie, Ac. is not such as they contend for.

As to the first point, it may be admitted that the general position laid down for Complainants concerning raising cross-remainders is correct; and also that the law is now settled “ that where cross-remainders are to he raised by implication between two and no more, the presumption is in favor of cross-remainders: Where they are to be raised between more than two, there the presumption is against cross-remainders: but (hat presumption may he answered by circumstances of plain and manifest intention either way.”^* But the cases of cross-remainders to be met writh in the books, are where property has been devised to two or more as tenants in common for a limited time, as for life, or in tail, without any express remainder between them, and then on the death of all, or the. failure of issue of all, the whole is devised over. In these cases it has been held, that when the estate of one of the first devisees hath been clearly spent, by his death, or the extinction of his issue, then the survivor or survivors, or liis or their issue, should take by cross-remainders, by implication. But her© there is an express cross-remainder between the first de-vjsees> The testator hath expressly and explicitly set ¿own on what contingency or contingencies the surviving daughter or daughters were to take; and as neither of these contingencies have happened, they cannot take at all: For in such a case, the Court cannot raise any cross-remainders by implication.^* , Then the event on which the devise to the first devisee was to cease had clearly happened, and the cross-remainder by implication was to be raised between two, where the presumption is in favor of them. In the case before the Court, it cannot be said that the event on which the devise to Mourning was to cease has clearly happened $ and the cross-remainder by implication is to be raised between three, where the presumption is against them. The general application and force of the maxim of law, which governed in the case just cited, and ought to govern in this, is attested by there being two modes of expressing it. “ Expressio unins esl excludo alterius“Expression semper fadt cessare taciturn.”

As to the second point, it is insisted that the contingency on which the devise over to Bennett Boddie, &c. was to take place, is not such as is contended for on behalf of the Complainants; but that the words “ if all my daughters should die before they arrived at the age of eighteen years, or marries and has issue thereby,” are to be taken copulatively that is, that the daughters must die both before they arrive at the age of eighteen years, and before they many and have issue thereby; that if they either arrived at the age of eighteen years, or married and had issue thereby, the property was to be absolutely vested in them, and not to go over.

The testator had, in the first part of the clause, directed that the property' devised to his daughters should be kept together until the two eldest (twins) should arrive at the age of eighteen years or married. What could induce him to do this ? Not because at the age of eighteen years, they were capable of managing their estates ; for the will does not provide for that, nor does the general rule of the law permit it 5 but, because, when they arrived at the age of eighteen years or married, an important change took place in the interest which they had in the property. Their interest in it then became absolute, whereas, before it had been liable to be defeated by their 4cath. Until one of these events happened, it could not be certainly known to whom the property would ultimately belong, or how it would have to be divided. If one of them died before she arrived at the ago of eighteen years or married, then' it was to be equally divided between the survivors: if two of them should die so, then there would be no division at all, because the whole would belong to the survivor ; and if all three should die so, then it was to' be divided between Bennett Boddie, &c. The first direction of the testator, concerning the division of the estate, was to be carried into effect when they arrived at the age of eighteen years or married, whichever first happened ; and in the remaining part of the clause he uses the same words, “ arrive at the age of eighteen years, or marries and has issue thereby,” no doubt, with the same intent. They were to have a division made to them, if they arrived at the age of eighteen years or married, and they were to have the absolute property, if they did either the one or the other. And the words of the will, by a very easy reading, will support this construction : « but if all my daughters should die before they Ceither) arrive at the age of eighteen years, or marries and have issue thereby.” If we extend it to the negative implied, it would bé, “ but /if all my daughters should not die before they arrive at the age of eighteen years, or marry and have issue thereby, then the said property shall belong to them, and not to Bennett Boddie, &c.” It is worthy of remark, that the words here used, are in substance the same as the directions given by Sir Joseph Jekyll, Master of the Rolls, in Read v. Snell;^* and whether these are the words of the directions, or only the' substance of them given by the reporter, either would probably be more accurate than. this testator; and yet it is manifest that the daughter or daughters were to have the property absolutely, if she or they, either attained the age of twenty-one years or married.

The Complainants’ counsel contend, that the words, “ die before they arrive at the age of eighteen years, or marry and have issue thereby,” are to be taken disjunc-tively ; that is, that these are two separate and distinct" contingencies; that on the happening of the one or the other, the devise over is to take effect, although, the other do not happen, if this construction were to prevail, the issue of the daughters, the principal objects of the testator’s affection and bounty, might be disinherited; for one or all of the daughters might marry, have issue and die before eighteen yeárs of age, and if the property is to go over because they had no issue, although they attained eighteen years of age and married, so it must go over because they did not attain eighteen years of age, although they married and had issue, which certainly could not be the intention of the testator. A multitude of cases might be cited, to shew that even in (Jeeds, the Court, in order to effectuate the intent of the parties, will change the disjunctive, or into the Copulative and. ^† The same has been done in construing statutes, notwithstanding the deliberate and formal manner of their passing, and the scrupulousness with which their wording is con-sidered^‡ So in all formal conveyances, “ to have and to hold unto the said A. B. his heirs and assigns,” or <e unto the said A. B. his executors, administrators and assigns.” Such cases, however, need not be resorted to, as the Books furnish a long series of decisions exactly in point, and which establish beyond all contradiction the construction contended for by the Defendants.

In 1596, in Soulle v. Gerard,^* the testator having four sons, devised his land to his “ son Richard and his heirs forever; and if Richard died within the age of twenty-one years or without issue, that then the land should be equally divided between his three other sons.5’ Richard had issue, Mary, and died within age. Tiie Court decided that Mary, the daughter of Richard, should have the land, and that the devise over could not take effect unless Richard had died under twenty-one years of age and without issue. Thus changing or into and in order to effectuate the intent of the testator, who certainly VouId not mean to disinherit his grandchild. It is worthy of remark, that in this case the devise over is to the testator’s other sons •, in the case before the Court, it is to strangers.

In 1708, in Wright v. Hammond,^† the devise was to the testator’s daughter “Elizabeth, but if my said daughter Elizabeth should die before her mother or without heirs,” then over. Elizabeth, the daughter, outlived her mother, but died without issue. Pratt, Chief-Justice, in delivering the. opinion of the Court, says, “the contingencies on which the devise over was to take effect, never happened, for the daughter did not die before the mother.” From which it appears that the opinion of the Court was, that or should be changed into and. Why ? Because, if the estate was to go over because Elizabeth the daugtep had not issue, although she outlived her mother, so it must have gone over, if she did'not outlive her mother, although she had died leaving issue, which never could have been the intention of tire testator.

Therefore the Court held, that her dying before her mother, or without heirs, did not constitute two separate and distinct contingencies, on the happening of either of which the estate should go over$ but that these words made only one contingency, and that the estate should not go over unless she died both before her mother and without heirs.

In 1743, in Read v. Snell,^* Lord Hardwicke, after shewing that there are many cases where or may be construed and, says, “ And there is one case in this very will where it must be so construed, and that is in the second codicil, where she gives her wearing apparel to her maid, in case her daughter dies under age or unmarried.”

In 1743, Barker v. Suretces,^† on a writ of error, the question arose upon these words in a will, “ I give the said premises to my grandson, his heirs and assigns forever ; But in case he dies before he attains the age of twenty-one years or marriage and without issue,” then over. The grandson attained twenty-one years of age, But died without ever having been married. The Court gave judgment against the ulterior devisee, and said they rwould read the will without the word or, as if it run, “ and if he dies before twenty-one, unmarried and without issue.” The reason assigned in support of the last decision upholds this also : and the limitation or contin-gericy in this case, is the very same as in the case before the Court.

In 1774, Walch v. Patterson,^‡ the testator devised to his son Matthew and his heirs and assigns forever, “But in case my said son should die before he attain the age of twenty-one years or without issue,” tjien to his the testator’s wife. Matthew died after the age of twenty-one years, but without issue, and the question was, “ Whether the devise over to his mother should take effect upon the happening of one of the contingencies only and Lord Hardwicke held it to be a very plain case, that it should not. Jn■ this case the devise over was to the mother of Matthew, who, it might have been reasonably supposed, would have provided for her children, (her own as well as the testator’s grandchildren,) in case they had been disinherited by the literal construction for which the Complainants now contend; which makes it a stronger case than the one now before the Court, where the devise over is to strangers.

In 1746, Frammingham v. Brand,^* testatrix devised to her son Robert and his heirs forever ; “ and in case the said Robert my son happen to die in his minority, or unmarried, jer without issue, then I give it to my son Henry and his heirs/’ Robert attained the age of twenty-one years, but died unmarried and without issue.. The Lord Chancellor held, “ that this contingent executory devise to Henry could never take place, for both the words or are to be taken in a copulative sense, and unless Robert had died in his minority and unmarried and without issue, Henry could never take: and if this were to be construed otherwise, it might happen that Robert might marry and die leaving issue in his minority, which might be disinherited if the estate was not to vest in him absolutely on his marriage, which could never be the intent of the testator.”

In 1750, in Brownsword v. Edwards,^† Lord Hardwicke again very emphatically recognizes the same doctrine.

In 1789, Wright v. Kemp,^‡ in the surrender of copy-hold premises, the use was to William Wallace for life, and from and after his decease, to the use of the heirs of his body lawfully to be begotten,” with a proviso, “that in case William Wallace should die in the life-time of the surrenderor, or Without issue of his body, then to the right heirs of the surrenderor.” William Wallace died in the life-time of the surrenderor, leaving issue. The counsel on both sides refined much, but the good sense of Lord Kenyon and the rest of the Court, contemned all refinement, and founded themselves on the intention of the surrenderor in favor of the issue of William Wallace, and therefore changed or into and, so as to .vest the estate, in the issue of William Wallace.

In addition to these authorities, one may be cited from the opinion of the Court of Errors and Appeals of the State of Virginia, delivered in .1798, in the case of Brewer and wife v. Opie.^* There the devise was to “ the testator’s son Joseph, his whole and sole estate, real and personal, and in case my said son should die before the age of twenty-one years, or without lawful heirs,” then over. • The opinion of the Court was, “ that Joseph the son took a contingent fee, to become absolute upon either event happening; that is to say, his coming of age, or having a child born, or leaving one at his death, no matter which. That or, in this will, is to be taken copulatively, so as to require the happening of both contingencies to entitle those in remainder.”

The counsel for Complainants have attempted to question the decision in the case of Soulle v. Gerard.^† In that case, the first devise was to the testator’s son Richard, in fee, and if he died within the age of twenty-one years or without issue, then over: And some of the Judges said that Richard took an estate tail, and that the devise over was a remainder. Since the doctrine of ex-ecutory devises hath been better understood, this position hath been doubted, and it would probably now* be decided that Richard took a defeasible fee, to become absolute on either event happening, and that the devise over was a contingent executory devise,^‡ but the propriety of the decision hath never been ^questioned. All the cases cited for the Defendants are in conformity with it.

The counsel for Complainants have relied much upon a case reported in 12 Mod. 276, and a case cited in 2 Vern. 377. In truth, the case in 12 Mod. and the case cited in Vernon, are one and the same case, as appears from the names of the parties, although in 2 Vern. it is misstated either by the citer or reporter. The name of this case is Hilliard v. Jennings, and it is reported in 12 Mod. 276, Com. 90, Freem. 509, Lord Raym. 505, and Corth. 514, (whichlastis considered as the best:)^* and in it the testator devised the lands in question to his son Thomas and his heirs forever. “ But if it shall so happen that my said son shall die without issue of his body or before he shall attain the age of twenty-one years,” then, over to his, the testator’s, two daughters. Thomas having attained the age of twenty-one years, made his will in due form of law, and devised those lands to the Plaintiff, who, together with A. B. were subscribing witnesses to said will, and then Thomas died without issue. All this being found by special verdict, two questions arose, 1st, Whether the said will was duly attested under the statute of frauds ; and 2dly, Whether the absolute fee-simple was vested in Thomas by his arriving at ..twenty-one years of age. The Court gave judgment for the Defendant on the first point, as appears from Carthew, who does not even take notice of the loose conversation of Lord Holt, on which the Defendants so much rely, but only reports the other point. 13 Mod. also shews, that the cause was decided about the attestation of the will •, and it appears from Ld. Raym. 505—1 P. Wms. 557 —1 Bl. Rep. 101, that the Court did not determine the other point. Also, Powell, Justice, four years afterwards, 2 Vern. 377, cites the case of Soulle •v. Gerard, as good law, which he could not have done, if it had been overruled in the case of Hilliard v. Jennings. So Pratt, Chief-Justice, who argued the case of Hilliard v. Jennings for the devisee, more than nine years afterwards, in 1 Strange 427, delivers the same doctrine as that laid down in Soulle v. Gerard, without taking any notice of the case of Hilliard v. Jennings. Nor has it ever been cited as an authority affecting the point’ how before the Court, in any of the numerous cases determined since it occurred;

The case of Woodward v. Glassbrook,^† has been cited for the Complainants. That case in substance was, that the testator devised to his son Thomas in tail, but if Thomas should die before twenty-one years of age, or un-then over. Thomas died unmarried, but aftfer jic attained twcnty-o’nc years of age; and it was decided that the devise over should take effect. Neither the arguments of counsel, nor the reasons for the opinion of the Coui*.t arc giveu. This is a solitary case decided by one Judge at Nisi Frius, and reported by a gentleman in a great practice, who took notes only for his own use, which were published, perhaps imprudently, after his death. They are frequently found to be very incorrect 5 but if this case be correctly reported, we can only say, that the decisions for a century before, and for a century since, have been uniformly in opposition to it ,• nor has it ever been cited or relied on in any of the cases on this subject, which have constantly overruled it.

* Swinb. 67, Co. Lit. 89, b.

* Cowp. 720.

* Dyer 330—Calche’s casci

* 2 Atk. 643.

† 1 Vern. 42. 1 Leon. 70. Pollex. 645. Plow. 286, 289, &c.

‡ 3 Co. 39, a.

* Cro. El. 525. Moore 22.

† 1 Stra. 427.

* 3 Atk. 647.

† 2 Stra. 1175.

‡ 3 Atk. 193.

* 3 Atk. 390. 1 Will. 140.

† 3 Ves 249.

‡ 3 Term Rep. 470.

* 1 Call. 212.

† Cro. Eliz. 525.

‡ 3 Atk. 390 2 Ves. 249, 1 Call. 212.

* 1 Bl. Hep. 101.

† 2 Vern. 388.

Tatuoh, Judge,

delivered the opinion of the Court:

' The testator’s intention appears to have been, that as his daughters attained the age of eighteen years or married, their shares of his estate, which, before those events happened, were contingent, should become absolute. A literal construction of the will would not effectuate this intention ,* for then, a dying under eighteen years of age, although the daughter was married, or a dying without marriage, although she had attained the age of eighteen years, would give her share over to the survivors. If the word or is construed copulatively, then the survivors can claim the share of the deceased only upon the event of her liaving died unmarried and under eighteen. But Mourning having reached the age of eighteen, and having also manned, there is not the least right in the Complainants. To shew- that the will ougi* to be thus construed, .the cases cited in the case of Dickenson and others v. Jordan and Blount, decided at this term, clearly prove. Another clause of the will provides, that in the event of the death of his daughters undér the age of eighteen years, or manage and having issue thereby, the estate shall go over to so pic oilier persons therein named. It is certainly a sound rule of construction, that every part of a will shall be taken into vjew, in order to ascertain the design of the maker; andthis clause seems to shew more clearly, that the intention of the testator would not be accomplished by adapting the construction contended for by the Complainants; for then the claim of the issue of a daughter dying under eighteen might have been defeated, which cannot be thought to have been wished or contemplated.by the testator, who has called distant relations into the sphere of his bounty, only upon a total failure of all those circumstances, upon the happening of which, he meant the shares of his daughters respectively to rest so as to become absolute.

In borrowing light from the clause of the will, we must keep in mind this important fact, that the, same construction which would entitle the Complainants to their deceased sister’s share of the estate, must be equally operative to transfer their own shares to the ulterior legatees. The Court cannot now decree in favour of the Complainants, on the ground of Mourning having died without issue, and hereafter refuse to sustain a bill in favour of the rest of the legatees, in the event of the Complainants dying without issue. Moreover, if the Complainants had died under the age of eighteen years, leaving issue, the same construction must have taken the estate from that issue and given it to these distant relations, if they are relations at all; for it does not appear that more than two of them are connected with the testator. Upon the whole, the Court are of opinion, that the occurrence of either event, to wit, attaining the age of eighteen years, marriage and having issue thereby, was sufficient to vest the shares absolutely in the daughters ; and that consequently nothing short of the failure of all these events would vest the share of a deceased daughter in the survivors, or in the residuary legatees upon the death of the daughters. — Let the demurrer be sustained.