Den on demise of Dickenson v. Jordan, 5 N.C. 380, 1 Mur. 380 (1810)

July 1810 · Supreme Court of North Carolina
5 N.C. 380, 1 Mur. 380
Den on demise of Dickenson and others v. Jordan and Blount

Den on demise of Dickenson and others v. Jordan and Blount.

A. devises to his grandson B. a tract of land, “ and in case B. died be. fore he arrived at lawful age, or leaving no issue, then to his grandson C.” B. arrived at full age, but died without issue. B. took a contingent fee under this devise, which became absolute upon the arrival of B. to full age and the Court will construe the word or as and, to effectuate the intention of the testator; it being his intention that the estate should become absolute in B. upon B’s having issue, or arriving at full age.

Ejectment for lands in the' county of Pitt. Special verdict. The facts disclosed in the special verdict were, that William Spier, late of Pitt county, being seised in fee of the lands described in the Plaintiff’s declaration, made and published his last will, duly executed to pass lands, and bearing date the 10th day of November, 1780: lie therein devised the said land 6‘ to his grandson, William S. Stewart, and his heirs or assigns forever:” and by a codicil to his will, duly executed to pass lands, bearing date the 5th day of June, 1781, further devised, “ that in case his grandson, William S. Stewart, died before lie arrived at jawful age, or leaving no issue, then lie gave the lands devised to William S. Stewart, to his grandson, John Spier, his heirs or assigns forever.” That the said William Spier afterwards died, without having revoked or altered said will, and upon his death, the said William Spifer Stewart, by virtue of said devise, entered into the premises, and was thereof seised : that the said William S. Stewart arrived at full age, but died without issue in the year 1799, leaving the said John Spier him surviving, and having previously published in writing his last will, duly executed to pass lands, and therein devised his interest and estate in the premises, to his brother, James Stewart, who afterwards died intestate, leaving the lessors of the PlaintifF'his heirs at law. The Jury prayed the advice of the Court in the preont. *381ses, and if the Court should be of opinion that the lands by virtue of the limitation aforesaid, passed to the daid John Spier upon the death of William Spier Stewart without issue, but after his attaining his full age, they found for the Defendant: otherwise for the Plaintiff. The case was sent to this Court from the Superior Court of Law for Pitt county, and was argued by

Gaston, for the lessors of the .Plaintiff.

The testator selected William S. Stewart, his grandson,, as the prin-, cipal object of his bounty, and intended that if he left issue, or arrived at full age, when he could act for himself and dispose of his property, he should have the lands devised absolutely. The will gave him an estate in fee: this would enable him to convey at the age of twenty-one years : if he died under that age, the lands would descend to his issue, or if he left no issue, to his collateral heirs. In the codicil, the testator selects a second object of his bounty, in the event of the first not living to full age when he coúld enjoy it, and leaving no descendants. It cannot be supposed that he intended to disinherit the issue of William S. Stewart, if he died under twenty-one years of age. The Court will therefore give such a construction to the will as will effectuate the intention of the testator, and this can be done only by construing the word “ or,” in the codicil, as “ and.” In numerous cases heretofore decided, this construction has been adopted.* And it is worthy of remark, that if the will be not so construed, the devise to John Spier cannot take effect as an executory devise.†

TayIiOS, Judge,

delivered the opinion of the Court:

By the will of William Spier, an absolute fee-simple is given to his grandson, William S. Stewart $ by the *382codicil, this is converted into a contingent fee, which is to pass to the testator’s other grandson, John Spier, in tjje event 0f (|ie first devisee’s dying under age or without leaving issue. According to a literal construction of the will, the occurrence of either event would vest the estate in John Spier : but it is evident that such was not the testator’s intention, and this intention ought always to be effectuated, when it docs not contravene tiie rules of Law. He could not have intended that the issue of William Spier Stewart should be deprived of the estate, if their father died under age; for that would operate to take all from those who appear to have been the principal objects of his bounty; yet such would be the effect of a literal interpretation of the will. His intention seems to have been, that the fee should remain absolute in Willi aril S. Stewart on the happening of either event, either his leaving issue or.attaining to lawful age; or, in other words, that both contingencies, to wit, his dying under age, and without leaving issue, should happen, before the estate vested in John Spier. To give effect to this intention, it is necessary to construe the disjunctive or, copulatively ; and there are various, clear and direct authorities, which place the power of the Court to do this, beyond all doubt. Only a few of those cases need be cited. Soulle v. Gerard,* was a devise to one of four sons, and his heirs forever, and if he died within age, or without issue, to his three other sons jointly. The devi-see had issue a daughter, and died within age, and it was adjudged that he took an estate-tail. In the case of Wright v. Kemp,† Lord Kenyon thus expresses himself: i( There is no doubt of the intention of the parties,' and where sense requires it, there are many cases to shew that we may construe tiie word or into- and, and and into or — a Stra. 1175, 3 Atk. 390 — in order to effectuate the intention of the parties. Hence, therefore, in order to give effect to the intention of the surrenderor, we must say, that when he used the word or he meant and: and *383there is no case iwheré,.any difference has. been raadeT>e-tvvccn a will and a deed, where the Court are considering how the intention, of the parties can be effected.” .

A. being seised of lands liolden upon leases for lives, devised to B, his brother, all his real and freehold estates, subject to. an annuity to his mother for her life $ but in case B; should die before he attained the age of twenty-one years, or without issue living at his death, to bis mother forever. A. died, B. attained the age of twenty-one years, and then died without issue. It was field, that the word or, in the devise over, must be construed as and,.and that the mother took nothing upon the death of B.*

In examining the many cases upon this subject, the point will be found to be completely settled» It is therefore unnecessary to multiply authorities : it is clear upon principle and precedent, and we have, no hesitation in saying that judgment ought to be rendered for the Plaintiff. ' .