SEPTEMBER TERM, 1772.

Lib. D. D. No. 18. fol. 638.

#### William Chew’s Lessee *against*James Weems and others.

EJECTMENT for three tracts of land called Padget, Lockeden, and *Ford’s*Folly, all lying in *Anne Arundel*County.

At *April*term, 1771, the Jury found a special verdict, by which it appeared, That Doctor *William Lock*was seised in fee of the lands in question, and by his will dated the 29th of *August,*1729, whereby he made the following devise: 46 I hereby bequeath my lands as folioweth: To “ my son *William Lock*the plantation which I bought of ££ *Robert Brozun*and his wife, with all the appurtenances,” See. “ And I do further give him all the remaining part of 44 *Dinah’s B ever dams,*that I bought of *Thomas Ford*and 44 *Robert Franklin,*and all *Hallozvay’s*Increase. I further £t bequeath unto him the said *William,*500 acres of my “ land called *Padget,*to be laid out as follows,” See. 44 But 44 my will and intent is, that if my son *William*should die 66 before he attains the years of twenty-one, or that he 54 should die without issue of his body lawfully begotten, £< that then the aforesaid lands should be equally divided *u*between my cousin *David Weems*and his brother *James*54 *Weems,*or, incase of either of their deaths, to be divided 44 between their heirs. I give unto my daughter *Sarah*£4 *Lock*all the remaining part, of the land called *Padget,*i£ and the eighty-five acres of land I bought of *John*Giles, 54 and in case she should die without heirs lawfully be-£4 gotten, to my son *William*and the heirs of his body 64 lawfully begotten, and for want of issue of his body law-44 fully begotten, to cousins *David Weems*and *James*44 *Weems,*equally to be divided amongst them, or in case 54 of any of their deaths, equally to their heirs.”

*464That Doctor *William*Lock, the testator, left *William*Lock, the devisee, his only son, who after the death of his father attained the full age of twenty-one years and married, and being seised, by his will dated the 22d of April, 1750, he devised to his wife the one third part of his estate real and personal during her life, and also, “ bequeathed 44 to the child his wife then went with, all the residue and 44 remaining part of his estate, consisting of what nature and 44 kind *soever;*and in case of the death of the said child, 44 he gave his wife the whole of his personal estate; and in 44 case of the death of the child he gave and devised all his 44 lands, unto which Mr. *David Weems*laid no claim by 44 virtue of the will of said *William Lock*the father, unto 44 his the said *William*Lock, the son’s cousin *William Chew*44 and his heirs for ever.”

That after the death of *William Lock*the son, the daughter, of which his wife was enceint at the time of his death, was born and died soon after her birth, and was the only child of the said *William Lock.*

The points made upon the special verdict were,

Whether, upon the will of *William Lock*the elder, the lands devised to *William Lock*the son were entailed or not-on him, with remainder to the defendants *David*and *James Weems;*and whether he could devisé them to the prejudice of the heir at-law or the remaindermen.

, Whether the defendants have any right to the lands under the remainder to them by the will of Doctor *Lock,*his son *William*having attained his age of twenty-one, and left his wife with child, which died after its birth.

Whether, on the construction of the will of *William Lock*the son, any estate passed to *'William,*Chew, the lessor of the plaintiff.

The Provincial Court gave judgment on the special verdict for the plaintiff.

The defendants appealed to the Court of Appeals, where the cause was argued at great length by the most eminent *465counsel then at the bar. The following arguments have been collected from the notes of some of the counsel who were engaged in the cause.

V *Chase,*for the plaintiff. (Notes.)

The word *or*is often used for *and,*and *or*shall be construed *and*to fulfil the intention of the testator, and then the contingencies will be, “ If my son should die before he M attains the age of twenty-one, and without issue, then,5’ &c. conjunctively and not disjunctively, otherwise if the son had died under age leaving issue, his issue would have been disinherited. The testator intended a provision for his son *William*and his issue, and did not intend that his cousins the defendants should be preferred to his son’s children. That it is immaterial to consider what has been the event of there being no issue, but the state of things and the situation of the testator when the will was made, is to be considered. • *Vide Ca. temp. Talbot,*26. 3 *P.*Wms. 259. *William*was the testator’s heir at law, and without the will the lands would have descended to him. If the devise had been to him in fee, it would have been void, and he would have taken by descent. 2 *Bac. Abr. T9,*80» The testator meant in case his son should *not live*to twenty-one, and be capable of disposing of his estate, and should have no issue, that *D.*and *I. Weems*should take, and not otherwise. Suppose *William*the son had died in his minority, *leaving*issue, and the present contest was between his issue and the defendants, which ought to have the preference ?

See the cases where *or*is used for and, *Co. Litt.*99. b. *Godb.*363. *Co. Litt.*225. a. *Cro. Eliz.*269. 2 *Vern.*388» 2 P. *Wms.*346. 1 P. *Wms.*434. 2 *Atk.*645. 5 *Co.*111.

And where the word *and*is construed *or,*see 3 *AtL*408. *Dobbins*v. *Bowman.*

Wherever the words *die without issue of the body*are coupled with any contingency, as before the arrival at the age of twenty-one, a fee passes. In the case of *Price*v. *466*Hunt, Pollexf. 645. Hunt*devised to his son, ("who was his heir,) and his heirs, and in case his son died before he attained the age of tomty-one, *or*has issue of his body living,, then to *Francis Cmvley.*The son attained his age, but died without issue. In this case, an estate in fee is expressly given to the first devisee, and unless *or*be construed. *and,*the devise over would be void. The case of *Barker*v. *Suretees, 2 Stra. 1175.*was a devise to “ one and “ his heirs, but in case he died before he attained the age “ of twenty-one years, or before marriage and without “ issue, then over.” The devisee attained his age, but never married. The Court say they will read the will without the word *or,*thus; “ and if he dies before twenty-one, *6‘*unmarried and without issue,” all making but one contingency. In the case of *Framlingham*v. *Brand,*3 *Atk.*390. the devise was to “ *Robert,*and his heirs and assigns, “ for ever, and in case he shall happen to die in his mi- “ nority, and unmarried, *or*without issue, I give to my son 5‘ *Henry*and his heirs.” *Robert*came of age and married, but died without issue. *1 Wils. 140.*In' the case of *Walsh*v. *Peterson,*the devise" was *in fee,*but in case the devisee died before he attained the age of twenty-one, or without issue, then to the testator’s wife in fee. The devisee died after the age of twenty-one, without issue. Lord *Hardxvicke*held it to be a vested estate in fee in the son, as he attained this age, though he died without issue; and that it did not go over to the mother, but descended on his heir at law. 3 *Atk.*193.

It is immaterial to the defendant what estate *William*the son, took under the will, whether for life, in tail, or in fee, conditional on his arrival at the age of twenty-one. If in fee, he could devise after he came of age ; if for life or in tail, the reversion in fee descended on him as heir at law, and merging the estate, destroys the remainder limited on such particular estate, The rule being that the contingent remainder must take place *eo instanti*the particular estate ceases, which cannot be in this case, *William*Lock, the tenant for life, being still living at the time of the *467descent of the reversion; but in the case of *Plunkett*v. Homes, 1 Lev. 11. the Court held that the descent of the reversion should not merge the particular estate, but left an opening for the contingent remainder to take place •when the contingency fell. It is to be observed, that the contingency in the present case never happened, as *William Lock*attained his age, and therefore the reversion in fee vested absolutely.

If the limitation over must operate by way of remainder, and not by way of executory devise, there must be a particular estate to support such remainder, and which, in this case, must be either for life or in tail.

If it is a contingent remainder, *William*having arrived at age, the defendant cannot take unless both contingencies (his dying before age and without issue) happened. The contingencies on which the limitation to the defendant was to take effect, did not happen, for the son was not only to die before twenty-one, but without issue. The defendants must strike out the words “ dying before he attains the e‘ age of twenty-one,” or they cannot now take, for they were not to take unless the son died before twenty-one 5 he having arrived, therefore, at the age of twenty-one, the contingency on which only they were to take fails, and if *William*did not die before twenty-one, and without issue,, the defendants cannot take.

The words “ that if my son should die before he attains *u*the years of twenty-one,” cannot be rejected or struck out of the will, for they were intentionally inserted, to prevent the heir of his son from having the preference to the defendants, if his son died before the age of twenty-one, and without issue. *Rep.*temp. Talbot, 29. 3 *Atk.*23.3. 16G.

The word *them*in the grammatical sense, is an adverb of time, but in limitations it is a word of ¿reference. 2 *Atk.*311. 2 *P. Wins.-*392. The defendants must contend for a vested remainder in them, which cannot be without rejecting the contingency, “ if my son should die before the M age of twenty-one.”

*468In the case of *Davis*v. *Norton*and wife, *Thomas Hooker*was seised in fee, and had *William*his only son, and a sister; he devised his lands to his son William, and the *heirs of his body; and if his son should die without issue of his*body, *and his wife should survive*him, *then*to the wife for life, remainder to the plaintiff and two others in fee. *William*the son, died *zuithout*issue, and the wife did *not survive*the son; the sister entered and died. The dispute was between the nephew and heir of the testator, and the surviving devisee. The question was, whether the plaintiff, the surviving devisee, was entitled to the remainder in fee, *as the wife died before the*son, *and did not survive*him. It was contended for the devisee, 1st. That the remainder devised to the wife, was a *vested*and not a *contingent*remainder, and that the words, “ in case she M be living at the time of the son’s dying without issue,” were immaterial and insignificant. 2d. That if the remainder to the wife was contingent, yet the contingency did not extend to the subsequent limitations. Judge *Reynolds*said, the remainder to the plaintiff is a contingent remainder, depending on the death of the son without issue, in the life-time of the wife, and as that contingency never happened, the remainder, which depended thereon, could never arise ; and said, if it'was doubtful whether the remainder was on a contingency, yet by doubtful words an heir ought not to be disinherited. 2 *P. Wins.*390. This case proves that where an estate tail is given, and a remainder is limited over upon a contingency, that the contingency shall not be rejected; that the reversion in fee descends on the heir at law, and that the remainder cannot vest until the contingency happens, and strongly applies to the present case ; and that if it was doubtful whether the remainder to the defendant, was on the contingency of *William Loch's*dying before he attained the age of twenty-one ; yet he, as heir, ought not to be disinherited, that is, deprived of the reversion in fee which descended on him. 1 Raym. 524. 1 Vez• 26.

*469The defendant must contend that the limitation over is either an executory devise, a contingent or a- vested remainder. If it is an executory devise, the contingency must happen; so if a contingent remainder, the contingency also must happen, before the estate can vest. But the contingency did not happen, therefore it must be a fee vested. If it is to be considered as a vested remainder in the defendants, the contingency of dying under age must be rej ectedo

Mistakes in the making of wills, are never to be supposed, if any construction which is agreeable to reason can be found. 1 *Atk.*415.

In the case of *Colleson*v. Wright, 1 *Sid.*140. *A.*devised land to bis son and heirs, and if he dies before his age of twenty-one years, and without issue of his body, then living ; then the remainder over. He survives the twenty-one years, and afterwards sells the land and dies, and the sale was adjudged good, for he had a fee-simple presently, the estate tail being to commence upon a subsequent contingency. 1 *Keb.*531. 1 *Eq. Abr.*176. pl. 6. 2 Bac. *Abr.*54. 2 *Lev.*11. *Gilb.*Devise, 18.

Hollyday, for plaintiff.

The devise in Doctor *Lockes*will, is to his son William, without words of limitation. William, under his father’s will, was seised in fee, and had a power to make the devise. The question is, whether the limitation to the defendants, in the will of Doctor Loch, ever took place, as his son *William*is found to have arrived at the age of twenty - one. The event of the death of the child of *William*Loch, the son, is not now to be considered, or to have any influence on the will of Doctor Lock, but such construction is to made as if the dispute was between the issue of *William*the son, and the defendants, arid accidents subsequent to the making of the will, shall not any ways affect; the construction. *Cas* temp.*Talbot, 26. 3 *P. Wins. 259-*

*470*William*Lock, the son, took by the words of the will, an estate l"01' 111"13 or in foe, and in either case the devise would be void, and the title would be by descent. *Co my ns,*72. 2 *Bac. Abr.*79. 8 *Fin.*348. If the devise was for life, the reversion in fee descended and merged the estate for life, and he became seised in fee. 2 *Wils.*6. *T. Raym.*29. 2 *Sound.*388. The fee being once vested in the son, was only to be divested upon the happening of the contingency, to wit, his dying under age and without issue. The limitation to the defendants was on a contingency, and the fee in the mean time descended on *William Lock,*as heir, but not so as to destroy his estate for life. If the fee did not descend to the son, it was in abeyance, and the law does not favour estates in abeyance. *Hob.*338. 1 *Jo.*73. 1 *P. Wms.*516.

The reversion in fee either descended, or was in abeyance. Where was it? *William,*the son, took the fee by descent; till the contingency happened; to wit, his dying before age, when it was to be divested and turned to an estate tail; that contingency never happened; he did not die before twenty-one, therefore the estate in fee descended and continued in him, and he might well devise it. The question now is, whether the contingency upon which the fee was to divest out of *William Lock,*the son, has, or has not happened. *William,*the son, attained his age, which is one part of the *contingency;*but afterwards died without issue. But the contingency upon which the limitation over was to take place in the defendants, has not happened ; for the Court must substitute *or*in the place of *and,*and read “ if *William*die under age, and without issue and if the will were so penned, both events of dying before twenty-one, and without issue, must happen, before the limitation over can take place. If the will is read in the disjunctive, the estate.is to go over on the happening of either event, and in that case, if William, the son, had married and had issue, but had died before the age of twenty-one, his issue would have been disinherited. The Court will not disinherit the issue, but make such a construction, *471as to secure the estate to the issue on his death under age ; that is, the disjunctive *or*must be taken as the copulative *and. 2 P. Wins.*194. *Co. Litt.*99. b. 5 *Co.*111. *Cro. Eliz.*832. The Court will not regard the words, but will carry the intent into execution, and the word *or*will be substituted instead of the word *and,*in order to comply with the- intent of the testator. 3 *Atk. 408. Co. Litt. 225. 1 P. Wins, 434. Moore, 422. Pollexf.*645. 2 *Sira.*1175. *3 Atk.*39. 1 *Will.*140. .

Doctor *Lock*did not mean that the defendants should take the reversion at any time, when his son *William*died without issue; but upon his dying without issue, before the *age of twenty-one,*otherwise these words would be nugatory, and may be struck out of the will; but that clause shews that the son was intended to have the estate if he attained his age, and therefore the will must be read *and*instead of *or;*and the dying before twent)r-one, and without issue, though consisting of two events, it is yet but one contingency.

Perhaps the defendant will contend that the intention was to limit an estate tail; but it never was intended that he should have an estate tail, *unless he died under*age, but having attained his age, he took the fee, and the limitation over could never take effect, because the estate tail which was to commence on the subsequent contingency, to wit, *dying under*age, never did commence, and the fee descended immediately on the death of old *Lock,*and never did divest, the contingency not happening on which it was to divest. 1 *Sid.*148.

If the defendants should cite *Lord Faux’s*case, Cro. *Eliz.*269. the state of that case, shews it was the intention of the testator that the words should have their natu - ral construction, and that the disjunctive should stand. li the case of *Soulle*v. *Gerrard, Cro. Eliz.*525. should he cited on the part of the defendants, it is to be observed, that executory devises were not then adopted by the Courts, and therefore the Judges rejected the *dying under age,*and read' the clause, *if he die without issue,*generally. Executory devises were first established in the celebrated *472case of *Pells*v. *Brown,*2 *Cro.*591. and so said to be, by Lord Hardwicke, in 3 Atk 390. But if executory devises had been *then*settled, the same determination would have been given, but on a different principle, for the limitation over, would be an executory devise, and the Court would have converted *or*into *and,*and have made both contingencies necessaiy. As *Moore*reports the case, two of the Judges admit this. *Moore,*422. 3 Atk. 193. In *Cro. Eliz.*525. the devise is stated to be in fee; in *Moore,*422. it is stated to be without words of limitation. If *W. fones,*205. *Cro. Car.*154. S. C. be cited, it is to be observed, that there the having *lawful issue,*implies a marriage, therefore it is only one contingency; but in our case, the having issue and dying under age are two independent events.

Doctor *Lock,*in making his will, is providing for the event of his son’s dying before he comes to a disposing power over his estate. The construction contended for on the part of the plaintiff, makes his 'will consistent with such intent. A contrary construction must be repugnant to. such intention, otherwise where is the use of tying the limitation down to a *dying under age.*Doctor *LocBs*son being an infant, he intended to give him a fee if he came of age ; he never intended to disinherit the issue of his son.

Paca, same side.

The intention of the testator is the rule of construction. Every will in the construction of it, is to be considered as at the time of the making of it. Why should a contingent disposition be kept up as a clog upon the child, after his arrival to the age of twenty-one ? Give the will the construction we contend for, and the conduct of the testator is prudent and natural. The limitation over to the next heir at law, and another collateral relation, shews the testator did not *at all events,*intend a benefit to the next heir at law. The testator meant to supply the incapacity of the son under age, and on the event qf his death, to make that *473provision for the remaindermen, that the law would not have done | but give the construction contended for on the part of the defendant, and the issue of *William*Lock, the son, if he had died under age and left issue, would be disInherited, and that too in favour of a stranger who is appointed by the remainder to take with the next heir.

The subsequent event is not to have any influence. The general question is, whether the son took a fee by descent or by the devise. It is certain he did take a fee in some manner, and equally certain the limitation over to the defendants is contingent, and the contingency never happened ; the fee, therefore, was never divested out of the son. A distinction is to be made between an original devise, and a limitation over. By an original devise, a testator means to limit the quantity of the estate devised ; by a limitation over, he means to shew upon what conditions the remainder shall take place. The contingency relates to the remainder, not to the devise to the son. The dying before the age of twenty-one is a fact, and the contingency upon which the remainder was to take place.

An intention to give an estate in fee to the son, may be inferred, because he is an only son *;*because it is a general devise, and there is no other devise to him. This devise is capable of passing a fee without infringing any rule of law, or affecting the limitation over. If only an estate for life is devised, what becomes of the reversion in fee before the contingency happens on which it is to go over. It descends to the heir at law, and merges the estate for life. 2 *Sound.*172. *Cro. Jac.*260. If a fee is thus taken by descent, the limitation over to the defendants will operate *by*way of executory devise* 1 *Lilly’s Reg.*581. 2 *Eq. Abr, S35.*The nature of an executory devise is, that the contingency must necessarily happen before the limitation over can take effect. In this case it never has happened, and consequently the devise over can never take effect. 2 *Lev.*11. 3 *Lev.*69, 70. *Hinde*v. Lyon, in which case the fee descended to be divested on a contingency, or become absolute. 1 *Sid.*148. 1 *Kcb.*29. T. Raym. 29.

*474If ^ be contended that a fee tail passed immediately, with a vested remainder to the defendants, yet. the remainder was contingent, and the fee by descent would remain till the contingency happens. If the estate be a fee tail with a vested remainder, what is to become of the fact of his dying under age ? Why is the limitation over made to take effect on that event? It must be rejected out of the will, or it must have some operation. It may be said, it shall be rejected, and two hundred and fifty years ago, it might have been so argued with success; for executory devises were not then established *;*they were first admitted in the case of *Hynde*v. *Lyon,*2 *Lev.*11. and established In the case of *Plunket*v. Holmes, 1 *Lev.*11. Strike out of the will the contingency, and all the doctrine of executory devises and contingent remainders are destroyed; for strike out the contingency, and every case in the books will be an estate tail and a vested remainder.

If this is argued to be an estate tail, when does it commence ? It is true there never has been one instance, where the devise was for life, or a devise generally, with a limitation over on a death under age, since the case of *Plunket*v. Holmes, to this time, in which it was held to be an estate tail before the contingency happened. In • this case it never happened, *ergo*the estate tail never commenced. In this case it can only be contended to be an estate tail by implication, and it may be positively asserted, that there is not one instance where the dying without issue is coupled with a contingency that an estate tail can arise by implication, unless the devisee dies before he arrives at age. By the case of *Hynde*v. Lyon, if the devisee dies before he arrives at age, an estate tail may arise by *implication,*but not *if he dies after.*An estate tail answers no purpose but to burthen land with an expense.

Take this question then, as an executory devise or as a contingent remainder, it is against the defendants. An ex-ecutory devise it cannot be, because the contingency on which it was to take effect, never happened, and so, for the same reason, it canno^ vest as a contingent remainder; and *475iio make it a vested remainder the contingency must be expunged. The limitation to the defendants must operate one of the three ways. The descent of a fee on a tenant in tail will not merge, as on a tenant for life, because it is of too high a nature. Where an express estate is given to the heir at law, remainder over t>n a contingency, the reversion descends on the heir in the mean time, and the remainder still continues in contingency, and shall not be vested. 2 *P. Wins.*390. In *Cro. Cm-.*185. an estate tail was expressly given with a limitation over on a contingency, and the contingency was not rejected. 1 *Eq. Abr.*188. s. 9. But our case is stronger, for no estate tail is expressly given, but a devise generally to the heir at law, and the cases shewn from *Lev.*11. Sid. 148. and *Keb.*21. shew that the Court will not raise an estate tail by implication, before the contingency happens. There is but one case which makes a difference between an express estate tail, and an estate tail by implication. The case in 2 *Vez.*243. does not apply; in that case the fee was devised to trustees. The heir at law took no estate before the age of twenty-one, and then not by *implication*but by *express limitation*or devise, and the heir at law could not by any possibility take tbe reversion in fee, because it was in die trustees. That there ^¡s no difference between an estate tail express, and by implication, was only an *obiter dictum*of the Chancellor.

In pases of trusts, the Judges and Chancellors are always bound to pursue the intent, and carry it into execution, and they allow themselves greater latitude to find out the intention, than in the case of legal estates. 1 *P. Wms.*194. 1 *Vez.*148. 1 *Atk.*581. 2 *Atk. 578.*Whatever, therefore, might have been the construction in the case of a trust, it will not apply in our case, which is on a legal limitation.

*Hall,*for the defendants, (Short notes.)

First, considered the force of the words *dying ivilkovi*issue, where the first limitation is to the devisee generally. *476without words of inheritance, and in case of his death without.issue with a remainder over, and cited the statute *De donis,*13 *Ed.*I. c. 1. *Wyld*v. *Lewis, 1 Atk.*432. *Walter*v. *Drew, Comyns,*372. *Sonday's*case, 9 *Co.*127. *Target v. Gaunt,*1 *P. Wms.*432. *Vid.*198. 667. 1 *Roll. Abr.*836, 837, 838, 839. *Popham*v. *Bunfield,*1 *Salk.*236.

2d. tie shewed the force of the words “ dying without *a*issue” where coupled with an express estate for life, according to the modern determination, and for that purpose, cited *Shaw*v. *Weigh, Fortesque*82. 90. *Dodson*v. Grew, 2 *Wils.*323. *Robinson*v. *Robinson,*1 *Burr.*38. S. C. 2 *Vez.*225. *Vid. Bacon*v. *Hill, Cro.*Eliz. 497. *Vid. 4*Bac. *Abr.*292. tit. *Remainder. 4 Mod.*282, 283, 284. case of *Reeve v. Long.*S. C. 3 *Lev.*408. 2 *Brownlow,*271. *Frogmorton*v. *Holyday,*3 *Burr.*1618.

3d. He considered how the law stands with regard to the construction of wills where dying without issue is coupled with other limitations, and he said that one principle would be found to run through the whole of the cases, and would reconcile them all ; that is, if it appears upon the whole of tlie will taken together, that the intention of the testator was to limit an estate over after the failure of issue generally, there the first devisee will have an estate tail. It is otherwise where it apj&ars from the whole of the will that the intention was to limit over ah estate upon the failure of issue that might happen within the term of a life or lives in being, and twenty-one years after ; and cited *Soulle*v. *Gerrard, Cro. Eliz.*525. *Moore,*422. Noy, 64. *Clatch's*case, *Dyer,*330, 331. Cited also in 4 *Bac. Abr.*332. *Vin.*tit. *Remainder,*428. s. 3, 4. *Tilly*v. *Collier,*2 *Lev.*162. 3 *Keb.*389. *Lex Testam.*489, 490. *Manley*v. *Boswell, Cas. temp. Hardw.*and *Lee,*258. *Plunket*v. *Holmes, 1 Lev,*11, 12. Sid. 47. *T. Raym.*28. *Pells*v. *Brown,*2 *Cro.*591. *Palmer,*131. 140. 2 *Roll.*Rep. 196. 219, 220. *Helliard v. Jennings,*1 Lord *Raym. 505. Brownsword v. Edwards,*2 *Vez.*243. 248. *Spalding*v. *Spalding,*8 *Cro. 1*85. *Southby*v. Stonehouse, 2 *Vez.*610. *Lee's*case, 1 *Leon.*285. 3 *Leon.*106.

*477He asked why the testator should be so extremely careful of the issue born before the son arrived at the age of twenty-one, and totally disregard those born after. Did not Doctor *Lock*know, that, if his son had issue before the age of twenty-one, and died before that age, the issue must have inherited, had he said nothing about them ? Surely his main intent was to provide for the issue born after the age of twenty-one, the most probable time of having *issue;*and when, if his son had been under no restraint, he might 'have aliened to their prejudice. He also contended that the equal affection Doctor *Lock*appeared to have for his nephews, and the heir not being the sole object of his bounty, was another strong reason for construing this an estate tail.

To shew that the rules of law ought to be adhered to, he observed that the statute 32 Hen. VIII. c. 1. touching wills, was not made till the year *1541,*and that in the case of soccage it gave the same free power of alienation to the owners of such land, both by deed and by will, at their free will and pleasure ; that although the words of the statute are so very liberal, yet the Judges adhered to the rule of law in the construction of deeds and wills. In the case of *Soulle*v. *Gerrard*the Judges took notice of this points and disapproved of the argument of counsel drawn from the words of the statute.

He contended that the words of the testator best expounded his meaning, and are not to be changed or transposed unless the intention of the testator require it. That intention not to be construed contrary to the express words. *Quoties in verbis nulla est ambiguitas, ibi nulla, expositio contra verba expressa fienda est.*1 *Atk.*369; 5 *Co. 111.*2 *P.Wms.*345. 1 *Raym.*269.' 6 *Co.*39. *Cot Litt.*225. a. 1 *Vez. 71.*

He cited 2 *Wils.*324. where Chief Justice *Wilmot*says that cases in the books upon wills have no great weight with him, unless exactly in the very point : and in page 323. he says the Court must put themselves in the place of ■ the testator, and determine as he would have done, if he *478had been told that both of his intentions in the will, by the rules of law, could not take place. *Vid.*3 *Burr.*1541. 2 *Wils.*6. 1 Burr. 38. 2 *Vez. 22$.*

That the expressions *dying without issue*had two senses, a legal and a vulgar sense. By the first was understood a dying without issue living at the time of his death. By the second was meant, whenever there was a failure of issue. That the first sense is most favoured by Courts, in case of an inheritance, because the words *dying without issue*are inserted in favour of the issue, and supports the will, whereas the other destroys it. 1 *P. Wms.*433. 667.

To stop all argument about contingent remainders, and executory devises, he observed, that it was a rule that a will shall never operate by way of executory de'vise, whenever it might take effect by way of remainder. 1 *Eq. Ah,*186. *Carth.*310. 4 *Mod.*282. 2 *Vez.*616. And so tenacious were the Judge's, in the case of *Reeve*v. *Long, $ Lev.*408. of their opinion, as being good law, that they were displeased at the reversal in the House of Lords. 1 *Sulk, 227.*The case of *Pells v. Brown*was determined to be an executory devise to fulfil the intention of the testator, otherwise, it would have been void. 2 *Cro.*591. *4 Mod.*283. The distinction of the first limitation being by express words, creating a fee and *e contra,*is admitted by the counsel in the case of *Pells*v. *Brown. Palmer,*134. 136, 137.

To shew that the words *then living*make a material difference, he cited 1 *Keh.*531. Moore, 464. *Cro. EUzí*497. 2 Lev. 162. *Í Str. 428.*1 *Atk.*432. *Comyns,*372.

That an implication of an estate of inheritance shall never ride over an express limitation of inheritance before, *Í Vent.*230. *By.*171.

*Ifenings,*for plaintiffs.

The clause in the will of old *William Lock,*which gave rise to this controversy, is as follows: “ I give,” &c. “but' “ my will and intent is *that if tnty son William should die**479*il before he attains the age of txventy-one years, or that he*44 *should die without issue of his body lawfully*begotten, “ that then the said lands shall be equally divided between 44 my cousins, *David Weems*and *fairies*Weems, and their 44 heirs.”

William, the son, who was the heir at law, and devisee, survived his father, and afterwards attained the age of twenty-one years, living till twenty-three, and then died, leaving his wife with child, which child is since dead. The defendants now claim the land in virtue of the limitation over, contending that this limitation in their favour was to take effect on the happening of either contingency — if he died before twenty-one ; or after his attaining that age, if he died without issue. We, on the contrary, insisting that in this case the disjunctive term or should be construed in the same manner as if the copulative term and had been used, and that the clause should run thus: 44 That if my •4 son *William*should die before he attains the age of twen*u*ty-one years, and that he should die without issue of his bo» 44 dy, then,” &c. Consequently, on the happening of either of these events, that is, if he died having issue, or attained his age of twenty-one, that the whole fee was vested in him.

Courts will frequently transpose words to effectuate the intention of the parties, and a liberal construction should prevail in expounding wills, the parties being supposed to be *inops*consilii, consequently any little inaccuracy in the penning of the will should be disregarded, so that the meaning of the testator may be complied with. 2 *P. Wms.*673. 2 *Burr.*1111. *1 Durr**50,1,2. 10 *Mod.*523.

The argument urged on the other side is, that, gratmmaticall}’ speaking, the word *or*is a disjunctive, and therefore the clause consists of two contingencies, and, consequently, if either happened, the title on the limitation commenced,

The question is not what is the strict grammatical construction, or proper import, of the term *or,*but in what sense did the testator use it, for if it is plain, from the whole tenor of the will, that he meant it should have the *480effect of a copulative, and that to construe it in another sense is a manifest violation of his meaning, it would Be the heighth of injustice to say this meaning should not be-regarded, or that a monosyllable thrown in *cúrrente caluma*should in a great measure destroy the whole operative force of the testament, and reduce the testator’s descendants to beggary. We are to suppose that the testator intended, in this case, to benefit his son, who was nearly connected with him, and that he meant to extend his kindness to the issue of his son, and that they should take in preference to a remote collateral relation ; but if the exposition they contend for is to prevail, this absurdity and injustice would follow, that if his son had married and died under age, leaving issue, these children would be left destitute, and the estate go from the lineal descendants, the grandchildren of the testator, to a remote branch, which never could be the meaning of the devisor. We shall find, in the authorities cited, that this reason had great weight with the Judges, in all cases where the point was debated, and there were so many resolutions on the point, which is so well settled, that it is a litde extraordinary the matter should be now agitated.

The question, then, is no more than this ; if the intent of the testator is to prevail, can it be presumed that he intended that his remote relations, his cousins, should be preferred to the children of his son ? Such a presumption is unnatural, and was never yet made ; if so, the answer is plain. As to saying, that, there being no children now, therefore the limitation shall take effect, this is expounding a will by circumstances happening after the death of the testator, which he could not be acquainted with, and was never *yet*admitted, and, upon this rule, every will must be new modelled *;*but all the Court can regard, is the state of things, and the situation of the testator, at the time of the making of the will.

It appears, on the face of the verdict, that William, the son, was heir at law to his father, and, consequently, had the devise been out of the question, he would have takes, *481the whole by descent. There is no rule better established than that the heir at law shall not be disinherited by implication ; 2 *Bulat.*179, 180. and that wherever the words of a devise are doubtful, they shall be construed most favourably for the heir, rather in salvation than in destruction of his inheritance.

But so far from the intent being doubtful, it is strong in favour of the heir, that the testator did not intend to disinherit his children to benefit a remote relation. From every circumstance relative to the will, from every motive which may be supposed to have influenced the testator, unless we can imagine he was actuated by principles repugnant to the dictates of nature and justice, all he intended was, that if his son should not live to be able to dispose of his estate, but should die in his minority, without children, then *James*and *David Weems*should have it ; but if either event happened, then not. Suppose William, the son, had not attained the age of twenty-one years, and had issue, *David*and *James Weems*could not have claimed the estate against the issue. Upon what principle? Because the testator intended to prefer the issue to them. Suppose the son had died under age, and had issue, would *David*and *James Weems*take in preference to the son’s children, as he died in his minority ? They say, yes ; because one of the contingencies would have happened, viz. his dying under age. So that their arguments lead them into this absurdity *;*that the children of the son are to be preferred to the Weans, if the son attained the age of twenty-one, but, if he died under that age, the *Weans*are to be preferred to the children. What makes their construction the more extraordinary, is, that the children would take when they least wanted it, but would be left destitute at a time when they would stand in the greatest need of a support *;*for if the *Weei?is*are to take in case the father, dying under age, left issue, such issue, from their tender years, must be in a helpless, condition, and, consequently, would stand in the greatest need of a provision ; but it seems they are not to have a shilling because one of the contin*482gencies happened — his dying under age. If their father died after the age of twenty-one, when they might, from their more mature age, better shift for themselves, and therefore not standing in need of so much assistance, it seems they are to have the whole estate. To reconcile a determination which would have such effects, to the principles of reason and justice, would be an arduous undertalcing. 2 *P. Wms.*195.

Again, if this construction they contend for should prevail, that the fee was not vested in the son on his at» taining the age of twenty-one years, it would be of no great benefit, for he could not, in prudence, make any considerable improvements on it, knowing that others would reap the benefit of them ; nay, it might be a prejudice to him in many instances, considering the state of lands in this country, which frequently are unsettled ; and it would not be. worth the time and expense to settle them if the estate was to determine at the death of the devisee. Further, this construction would be making the testator shew a greater regard to his cousins than to his own son, for he is only to take an estate for life, in case he has no children, and the remainder is limited over to them in fee. The proportion of an estate for life to an estate in fee is only one third, so that the estate limited to them would be double the value of that given to the son. Take it either way, their construction can never be supported. If they say the testator intended to benefit his son, in preference to his cousins, I have shewn that it cannot have that effect unless he has the.estate in fee on attaining his age. If, on the reverse, they urge that he intended to benefit his cousins before his son’s children, it cannot have that effect, as they admit, themselves, the devisee took a fee if he had children, and lived till the age of twenty-one. Indeed, there is no other way of expounding this will, to comply with the intent of the testator, which evidently was to benefit his son and his children, than by adopting the construction we contend for,

*483*It*is exceeding clear, upon a comprehensive view of this will, that it was necessary both contingencies should happen before the limitations took effect. *Vid, 1 Sid.*148. 2 *Sid. 53.78. Dyer,*330, 331. 354. *Moore,*422. *Co.*590. *Co. Litt.*99. b. *Godb.*363. 1 *Vent.*62. *Pollexf.*645. 2 *Vern.*388. *Nichols*v. *Jolly,*1 P. *Wins.*434. 346. *Co. Litt.*225. *Cro. Eliz.*269. 1 *Leon.*74. 243. *Hard,*Í48. 4 *Co. SO.*b. 2 *Stra.*1175. 3 193. 391. 1 *WUs.*140. 2 P. *Wins.*195. «Se/. Ca. in *Chan.*13. 3 *Atk.*619.

What would be the construction in point of natural reason, independent of legal authorities ? Certainly to give the estate to his child and his issue ; and if he died before he had discretion or power to use or dispose of it, then that it should go to the *Weems.*This is consistent with the intention of a provident ancestor, and such a reasonable construction, that Courts have always supposed this to be his intention. *Vid. Strong*v. *Cummin, 2 Burr. 771,*3 *Atk.*624, 625. 623. In that case, even against the brother, the Court thought that the intent of a testator was always to give his son the fee-simple, if he attained his age of twenty-one years. 3 *Burr.*1610. is a very strong case to prove that the Court always supposed this to be the intent. In that case it was determined, that though no limitation was added to the estate, yet, by giving it over in case he died in his minority, it was meant, if he attained his age he should have the fee, or the words would be nugatory. The Court went on the principle, that where an estate is limited over, in case such particular events do not happen, that if they do it shall not go over, or otherwise the words were nugatory. So, here, if the son die under age, and without issue, the estate shall go over *;*which Paust mean, If he does not die under age, and without issue, then the estate shall not go over. Even if the word *or*was not to be construed *and,*to comply with the manifest intent of the testator, the will plainly means, if he should attain his age, or have issue, the estate shall vest absolutely ; for the word *or,*if' considered as a disjunctive, ought, in construction, to give as beneficial an interest *484to the heir as to a remote relation. The cases shew that wherever the intent of the testator is to be collected, the Court always presumes an estate in fee-simple shall be given, provided he attained his age, when he may be in a capacity to enjoy it without fear of imposition. '

It was objected that this devise should be construed an estate tail. To this it is answered, that, to effectuate such construction, the will must be read thus : “ And if my son “ should *die without issue,*then to the *Weems,”*&c. and the words “if my son should die before twenty-one” must be totally rejected. This is contrary to every rule of exposition, for though the Court will supply words, and substitute others in the room of those expunged, yet it is an unheard of construction to strike out words when they may be construed so as to comply with the manifest intent of the testator *;*or even if the intent of the testator is doubtful, words cannot be struck out, so as to make a con-, struction against the heir, for by this mode one may make almost any estate. That words are not to be struck out without substituting others in their place, nor to be considered nugatory, see *Pollexf.*650, 651. 3 *Atk.*233. 2 *Bulst.*123. 128. 9 *Mod,.*159. 3 *Lev.*433. For this reason the case of *Soulle*v. *Gerrard, Cro. Eliz.*525. is denied to be law.

We have shewn that the words of the will may have an effect to comply with what the Judges will always suppose a parent to have in view, that is, to give him an estate in fee-simple, on his attaining his age of twenty-one years : nay, we have shewn that, in many instances, the Courts have supplied words in construction to comply with the testator’s meaning ; and can there be a greater absurdity than to suppose a Court would supply those words in a will, and yet that' they would strike them out when they were there? To suppose them very material when they were not in the will, and therefore to add them, and yet to reject them as senseless when made use of by the testator. In the cases cited, the Courts have supplied these words, supposing the testator meant to have inserted them : in *485this case there is no reason to *presume*the testator meant to insert them ; he *had*inserted them. What effect have they when *supplied,*in construction ? To give an estate in fee *on*attaining the age. What effect ought they to have, then, when not supplied in construction, but actually inserted ? Certainly the same, otherwise a greater efficacy is given to words *understood*than to words *expressed**2 Burr. 920. By our construction every word will have effect, and denote the contingencies on which the fee is to be vested in the child, on his attaining his age, or on his having issue | and on failure of both of the contingencies, then the estate will go to the Weems. If the words “ *if he die before u*twenty-one” are to be struck out, to make an estate tail0 why did not the Judges determine all the cases, where the Word *or*was construed *and,*on the same principle. There was the same reason, and had the Judges thought it was the intention of the testator that his son should not have ate. absolute estate in fee, on his attaining the age of twenty® one years, they would have construed the subsequent words as restrictive and explanatory of the former, so as to mean *heirs of the*body. The point was made in the case of *Framlingham*v. Brand, *3 Atk.*390. where if the Court had thought the testator meant to pass an. estate tail, they might have construed the word *heirs*to mean *heirs of the*body. This is frequently done where it was the apparent intent of the testator to create an estate tail *;*as in the common case of a devise to one son and his heirs, and if he die *without heirs*then to another son. The only reason, then, for not doing so here, is because they did not think it was the testator’s intent to make an estate tail. *Pells*v. Brown, *Cro.*Fac. 590. But, upon examining all the eases cited, the Court were clear that the intention of the testator was different, and that he meant to give an absolute estate in fee, on the attaining of the age of twenty-one, therefore they determined the point on other principles, and preserved the expression.

It is apparent then the Court will construe words to pass an estate tail, where such appears to have been the test-a-*486tor’s meaning ; therefore, as the Court did not construe it an estate tail in the instances cited, in which they might have done so, it is clear they thought the meaning to be as we contend for. They considered two purposes which they supposed a prudent parent would have in view ; 1st. To provide for the son in the most ample manner, provided he lived to the years of discretion, to manage his estate. 2d. In case he. did not attain that age, but left issue, to provide for that issue. The first principle is fully argued and adjudged in *Pollexf.*651. 3 *Até.*624. *Sel. Cas. in*Chañe. 13. 2 *P.*Wms. 195. 2 Burr. 771. All the authorities say it was a reasonable and just intent, and such as a prudent father may be supposed to have in view; for it shall not be presumed a father intended to give his estate from his child’s issue, or to restrict him in the enjoyment of it, in favour of collateral relations. All the contingencies, in the cases cited, are supplied on the same principle, to give an estate at twenty-one; but if the intent had been only to give an estate tail, the Court would have supplied the contingencies so as to have that effect, they might have stopped at what estate they pleased. But here the intent of the testator is so far otherwise, that they are obliged in order to destroy the estate, to throw out words which would receive force by our construction in favour of the child.

That this provision in favour of the child is reasonable, must be obvious on the least reflection. 1st. He could not provide for himself in case of emergency. 2d. He could make no settlement on a wife, which might hinder an advantageous marriage. 3d. He could make no settlement or provision for his children. Their argument for construing it an estate tail, is totally against the reasons assigned in the books; they suppose the father had only one purpose in view, to wit, the benefiting the issue, but that he did not intend to benefit the child in the most ample *manner;*therefore all the reasons assigned by *Pollexfeu*and the other Judges, are by their reasoning to be thrown out of the case.

*487It is objected that the cases cited, are cases of precedent fees with subsequent limitations, but that no precedent fee is limited in this instance» To this objection it is answercd, that there is not one case to be found in the books which turned on this distinction; but all the reasons assigned, and which governed the determination, was to carry the party’s intent into execution, as it would not be presumed he would disinherit the children of his son» In the case of *Framlingham*v. *Brandy*1 *Wils.*140. the case of *Barker*v. *Surtees*is mentioned, but not the least notice is there taken of this objection» These are the last cases in the books on the subject, when, too, all the former authorities had been revised, and the point settled.

The argument that a precedent fee shall not be divested, operates strongly against them» For in the case at bar, a fee vested by descent in the son (who was heir at law) till the contingencies happened, and the testator shall not be supposed to be defeated. An estate in fee is more to be regarded when by descent, than one by devise or any other purchase j wherefore it is that if the testator devises in fee to his heir at law, he shall take nodring by the devise, but his title by descent being most worthy shall be preferred. *Porfiar est dispositio legis quam*hominis» All the reasons assigned in the cases are, that it shall not be presumed che testator intended to disinherit his son, for by construing all the other cases into estates tail, the effect in favour of the issue would have been the same they now contend for.

It was objected, that this shall not be construed an ex-ecutory devise, but as a contingent remainder. Answer: It has been shewn that take it either way, as the contingencies never happened, the limitation over cannot take effect. But what is the rule suggested to make it a remainder ! It is that wherever there is a particular estate capable of supporting a remainder, it shall not be construed an executory devise. They say, here is a particular estate tail, capable of supporting a remainder. But how is this estate tail created! It is by striking out the words *:i if he should die under age"*and by the same rule, you *488make a particular estate of any thing, by striking out the words. Thus, if lands are given to a man and *his*heirs, strike out the words *his*heirs, and there is an-estate for life created without difficulty, capable of supporting any remainder, and so it might be in every other instance. But that words ought not to be struck out, see the cases befpre cited. ' The meaning of the rule is, that where a particular .estate is created by the express words of the will, and not where a particular estate is made by striking out what words you please.

That this is an executory devise upon every rule of law? respecting executory devises. There are three\sorts of executory devises ; two of freehold estates, and one of chattels real. The executory devise applicable to the present case, and the only one which need be mentioned, is where a man disposes of his estate in *future*on a contingency, and in the mean time suffers it to descend to the heir. 2 *Bl. Com. 173.*Here is a fee-simple given to the *Weems*to arise on future contingencies, that is, the death of the son underage, and without issue. Till these happen, the fee descends to the heir at law. It is therefore a complete executory devise within the definition of it, cited by *Blackstone,*and the contingency never happening, there is nothing to take it from the heir. Such a disposition as this would be void as a remainder, there being no particular estate to support it, therefore it can only be good as an executory devise.

Another objection made, was, that the verb *should die*is repeated, which makes it in the nature of several contingencies. To this it is answered; suppose the verb had not been repeated, it must have been supplied in construction, otherwise the will would be nonsense. If the words had been, if my son should die under age, or *xoithout*issue, the question naturally would be asked, or *xvhat*without issue 5 and it would occur to every one, or *should die*without issue. The will, therefore, says no more than what Judges would be obliged to add, in expounding it. These words would have been supplied in construction, but it be*489iñg more perfectly expressed, they contend it should operate as an injury to the child» The maxim of law is *ex-pressio eorum quae taeite insunt nihil*operatur» How will 'this objection avoid the reason the Courts have all along relied on, in construing or, and, to benefit the child and his issue and this was the ruling principle ? In Lord *Vaux’s*case, it did not depend on the repetition of the verb, but on the particular expressions of the will, and it was to give the estate to the son and heir» In 3 *AtL*390. Lord *Vaux’s*case was cited for the same purpose as they now use it, but the Court disregarded it. By 2 Burr. 920. it is the same thing whether it be directly expressed, or plainly to be collected from the will.

It is also objected that the word *or*is expressed, and that the sense of the expressions must be adhered to. Answer. This argument would apply to all the cases cited, and is therefore tantamount to saying these cases are not law. The policy of the law does not consist in preserving the strict grammatical meaning of an expression, but in expounding the will, so as to comply with the testator’s intent. If testator gives lands to his brother John, and his brother’s name is William, yet the devise shall operate, and *William*shall be substituted in the room of John, and the expression give way to the intent. All the cases likewise cited for supplying contingencies, will be subject to the same objection, for the testator did not expressly declare those contingencies, but they were inferred in order to comply with his intention.

Remarks on the cases cited contra»

Lord *Vaux’s*case, *Croc Bliz**269» There were these words superadded, “ which of the said times, days or hours, *come first’’*and by this repetition, and mentioning so particularly which came first, there was reason to suppose them several contingencies. This case is cited in 3 *Atk.*390. and is disregarded. Further, the reason assigned for this opinion is denied to be law, viz. because the disjunctive which came last made the precedent contingen*490c^es °f ^ same nature. The construction there was ill favour of the heir. Here it is to defeat the heir.

In the case of *Soulle v.*Gerrard, *Cro. Eliz.*525. adjudged an estate tail. But that case being before the doctrine of executory devises, the rule of law then was, that no estate, even in a will, could be limited after a fee. But since the doctrine of executory devises has been introduced, no part of a will under these circumstances is to be void, but the devise shall pass a fee with an executory devise over, in case both of the contingencies happened. *& Atk.*390. Upon examining the principles of this case, it will be found expressly in point for us. At that time a devise after a fee, by way of executory devise not being known, the Court were obliged to reject the words “ *if he die within*“ *age”*But suppose they had thought they could have given the will such a construction as to have given operation to all the words, then per *Walmsley*and Owen, page 526. they would have construed the word *or,*as the copulative *and,*and would not have let the remainder over take place till both contingencies happened. It is then clear that at this time of day, by the introduction of executory devises, all parts of the will is to take effect. How then would the Judges, in the case of *Soulle*v. *Gerrard,*have determined the point, had they given effect to all the words; they themselves say they would have given the same construction we contend for. This case then is a case in point for us. The only reason why this case was denied to be law, is because effect was not given to all the words. 3 *Atk.*390. 12 *Mod. 277. Comyns,*95.

*Hilliard*v. *Fennings,*1 *Raym.*505. did not turn on this point, but on the execution of the will. It is a mere dictum of *Holt,*and by the report of this case in *Comyns,*95. it appears he was at first influenced in his opinion by the case of *Soulle*v. *Gerrard,*which afterwards, on more mature reflection, he denied to be law. As to *Holds*reasoning that it might have been the intention of the testator to restrain his son from marrying under age, certainly if that had been his intent, he would have expressed it more fully *491and explicitly. This conic! not have been the intention, neither would the words have that effect, for suppose the son had married under age, and had afterwards attained Ills age, and died leaving issue, it cannot be supposed the testator intended the remainderman should take against the issue | so that this objection supposes the absurdity, that if he married under age and had issue, and died under age, the limitation over would take effect, but *that*if he married under age and had issue, and then attained his age, that they should not. How does this hinder his marrying’ indiscreetly? But this dictum of *Holt*(which from *Co*myns5 Report, 95. it appears he afterwards retracted) is ox so little weight, that we find Mr. Carthew, in his report of the case, has not even mentioned it, and as he was of counsel in the cause, it is to be presumed he has given the most accurate report, and mentioned all the material points.

The case of the Bishop of *Oxton*v. Leighton, 2 *Veru. 377.*has nothing to do with the point, or at least one must have great penetration to see how it applies. The memorandum at the end of the case must have related to some other argument, and short as it is, it is full of inconsistencies. It mentions the point to have been adjudged, in the case of *Hilliard*v. Jennings, which is evidently a mistake, for in every report extant from that case, it appeal's ic never was adjudged. It is reported in 1 *Raynn*505. *Co*myns, 90. 12 *Mod.*276. *Cartln*514. From *CartheiPs Reports it*could not have been determined, as it was an issue out of chancery, to try whether a will was executed agreeably to the statute of frauds, and the operation of die devise was not under consideration; therefore, every thing said on that subject, must have been mere *obiter*dicta„ It is also imposible *thatPoivell*could cite *Soulle*v. Gerrard, in *Cro. Eliz.*and *Price*v. Hunt, in Pollexfen, to prove the same point ; for the determinations in those cases are as different as black and white, the one giving an estate tail, and *492rejecting part of the words, the other giving effect to the whole, and construing the fee to vest on his attaining his age.

The case of *Woodward*v. Glassbrook, 2 *Vern.*388. is overruled by 2 *Stra.*1175. 3 *Atk.*390. *Vernon*is not considered a very exact reporter. 2 *Vez. 610.*

*Brownsword*v. Edwards, 2 *Vez.*243. The rule of construction, is this: where the words are express, and there is no reason appearing from the will to suppose the testator meant differently from what he has expressed, the Court will construe the will according to the expressions j but where the expressions do not co-operate with the intent, and the testator does not give any particular estate to-his child, but plainly indicates .that on the happening of the contingencies, he shall have some estate, but does not say what estate, the Court will suppose he intended to provide for his child in the most ample manner, and to give him a fee on the happening of such contingencies. Therefore, where a testator gives an estate over in case his son die before twenty-one, he shall be supposed to intend him a fee, if he attain his age ; for the particular estate not being mentioned, the Court must go on general principles, and will suppose the testator meant he should have the highest estate. But where the testator has expressly declared he shall have an estate tail on the happening of the contingencies, the Court will not intend a greater estate than the parent has carved out, unless, from the context of the whole will, it appears he intended to give a greater.

To apply this reasoning. In the case cited, the particular estate that the child shall have on the happening of the contingencies, is declared, to wit, an estate tail, and many circumstances appear from the will, to shew the testator intended such an estate, and no other; which makes it still stronger; for where there is a particular estate expressed, and there does not appear from other parts of the will any reason to suppose he meant a different estate than what he has declared, that estate only shallbe given, *a fortiori,*when it appears from other parts of the will that he *493Intended that particular estate. The testator has expressed that he only intended to give an estate *tail;*for, 1st. He gives the fee to trustees for particular purposes, which shews he did not intend the devisee should have it, see p. 248, 2 *P. Wins.*195. 2d. He expressly declares if the devisee should live to attain his age of twenty-one years, or have issue, then he was to have an estate tail; this, as Lord *Hardwicke*observes, was the material point, p. 248. There was, therefore, no reason to resort to construction, as In our case, to find out what estate the testator intended, on the happening of the contingencies, because he has declared it, and nothing appears to shew the testator intended a different estate. In the case cited, the boy attained his age, and took an *estate*tail, because the testator expressly gave him one. It was construed an estate tail with remainder over, and therefore the remainder shall vest, because as the Lord Chancellor says, p. 249. he made his original devise capable of a proper remainder, in which case, (that is where the particular estate is expressed by the testator,) the Court will always construe it a remainder. By this may be inferred that the rule goes on the express estate given, nothing appearing that the testator intended a different estate than that expressed. In page 249. it is said to be the intent of the testator war-, ranted by the words, which shews they relied on the words, there being nothing to shew the testator intended differently. As for the argument, that the will says, u if a *John Brownsword*shall die before the age of twenty-a one and without issue, and that both of the contingencies *ci*must happen before the girl can take it Is expounding the will in part only, laying hold of these words without considering the former. The testator meant and has expressed it, that if either of the contingencies happened, *John Brorvnsrvord*should have an estate tail, but if neither happened, the' estate was to go over to the girl. There is no reason to construe this an estate in fee to the son, on the happening of either of the contingencies, for the testator has declared the estate he shall have: if he have issue, an *494estate tail; if he attain his age, only an estate tail; but if neither happen, then the estate to go over. So that he has declared what estate he shall have on the happening of either contingency, and the other words, are only to shew who is to have the estate on the failure of both. It is said, that if the first devise had been to *John*and his heirs, the construction would have been different. This supports our reasoning. Suppose there had been no words of limitation, the Court would have construed it an estate in fee to-pass, as most beneficial to the child, and giving effect to every expression. The word *heirs*co-operates with this construction, and the Court have so expounded it. Had they thought the testator meant only an estate tail on the son attaining his age, they might have construed the word *heirs*to mean *heirs of the*body, as is done in many other instances where the intent is apparent; but they construe it to pass a fee, thinking the testator intended a fee on the happening of either contingency.

In *Southby*v. Stonehouse, 2 *Vez.*610. the devise is no more than this ; I give to my husband the lands, &c. during his life ; after his death to my child; if the child has no issue, then over; for the words “ *if I should leave no*“ *child,”*make no contingency, being nugatory. They mean nothing but what must be implied, for unless she left a child, it could not take. It is nothing more than a plain estate tail to the child, and if he should die without issue, to go over. There is nothing to control the words expressing the party’s intent.

The following opinion is in the hand-writing of the late *Daniel Dulany,*Esquire, in the case of *Chew's Lessee*v. *Weems.*Mr. *Dulany*was then one of the Council of the Province, and one of the Judges of the Court of Appeals. The first sheet of this opinion is not to he found, •

* * * If the devise be to *A.*and his heirs, and on his death without heirs, to *B.*a stranger, the intent and the legal import of the term *heirs*corresponding, the limitation over is void; but if *B.*be a relation of *A.'s,*capable of taking as his general heir, it is otherwise. That the policy of the *495law guards only against effects, appears also hence, that a person may take as a purchaser from a description of every course of descent. *Vid. Burr.*Rep. 1106. *Ld.*Raym. 568. *Gomyns,*51. *P.*Wins. 23. 7 Co. 4. 3 Lew. 70. *Gilb.*Dev. ■'17.27.

Suppose the testator had been a single man, and had devised in similar expressions to his wife and to a cousin, with a limitation over to *W. C.*it would have been clear on the above, that there would have been no limitation of a .fee precedent to the limitation to *W. C.*either absolute or constructive. What is there then in the present case to make it different ? There is no expression on the will itself j there is nothing but the precedent limitation being to a child in *útero*matris, and the argument must proceed on the presumption, that the testator meant an effectual provision for the child. Admit it, and the consequence will be only, that on this presumption there ought to be an effectual provision for the child ; but not that the construction ought to be carried beyond the principle, or object beyond the regard due to the child.

I have said above, the limitation over is expressly to take effect on the event of the child’s death, if it can be made to depend thereon, and yet the provision for the child be effectually made, as I have shewn above ; there is no ground to contend for any thing more.

It may be said that the will does not expressly make any difference, whether the child died an infant of tender years, or should arrive at age, or have children; the construction, therefore, by which the provision intimated should be made, would not be warranted by the expressions of the will.

The principle on which the construction is to be made, is the presumption arising from the relation of father's and. children, and not the expressions of the will, and no rule can be established for carrying the construction beyond the principle.

If the construction favourable to the child as aforesaid, cannot be supported, because not arising from the exprw*496sions of the will, neither can any other construction to which there is the same objection, and the consequence then will be, that a strict construction must prevail, and the above presumption have no effect.

If a construction not pointed out by the expressions of the will, is to be rejected, much more ought a construction against the expressions of it, and destructive of the will, to be rejected. If a qualification is not to be admitted, a destruction surely is not. Supposing the presumption to influence, for if it does not, there is no *question;*the competition then will be betweén a construction which, shall have the same effect as if the devise had been to the child and his heir, and on his death without heirs, to *W. C.*and his heirs, and a construction which shall have the same effect as if the devise had been to the child and his *heirs;*and in case of his death in his minority and without issue, then to W. *C.*and his heirs.

By the expressions of the will, *TV. C.*is to take on the death of the child and so are the legatees.

What will be the consequence of the former construction should it prevail ? Almost the whole, will would be void. It would be a devise to the son and his heirs. It would be void, because he would have taken the same estate by descent. It would be void as to the whole disposition of the personal estate. The words *in case of the death*of the child, would be void. The limitation to *TV. C.*would be void. The intention of making a further provision for the wife, a very natural intention on the event of the child’s dying, would be defeated, as well as the intention respecting all the other persons mentioned in the will. The whole will, consisting of various parts, would be reduced effectually to *this;*the wife would take a third of the personal, and a third of the real estate for life. This would be the amount, and why this extremitj' of construction? The interest of a collateral relation, who might happen to be heir, who might be a remote relation, for whom no regard is"shewn by the testator, cannot be entitled to so great consideration. The welfare of the child is the object. If then, there may be *497sui effectual provision for this purpose, with less extremity or violence, it seems to have a good claim to the preference.

By a modification or qualification of the event on which the limitations over of the real and personal were to take effect, the welfare of the child will be fully consulted, and every presumable desire of the testator effectuated, and such qualification will agree better with the expressions of the will. The provision for the wife may be augmented out of the estate the child would not need, and the other objects of the testator’s regard benefited by his intentions. In a word, by supplying, the presumption would be satis» fied, and every part of the will be preserved, and the difference would only be between positive and qualified.

The words K *in case of the death of my childf*are of the sense with *if my child should die.*Either form of expression properly denotes contingency. Death is not a contingency j it must happen. A circumstance being added or supplied, may make it a contingency j *e. g.*before age without issue. *Vid.*2 *Stra. 1217.*1151. 1 *Burr.*225, 227, 228.

The words importing contingency, and the e-vent of death abstracted from other circumstances being none, there is the better countenance thereby given to supply in construction what would make a contingency suitable to tire nature of the case. Lord *Mansfield.,*in the case of *Strong*v. Cummin, in Burr. 771. collected that a contingency was meant though not expressed, and supplied it in construction. *Ibid.*770. and 923. he cites the case of *Coriton*v. *Hellier,*where Lord *Hardzvicke*supplied a contingency. Whatever consideration is to influence the construction, whether expressed or implied, must necessarily be the same. The presumption, if it is to operate, has the same weight as if the testator had expressed himself accordingly ; for it can be no medium between having effect and not having effect. If it has effect, it could only-have it if expressed ; if it has not, it is nothing. The contingency being supplied in construction, every word of the will will stand, though qualified, and the intentions of the *498testator towards his wife, the other legatees and *W. C.*have the full effect they ought to have, consistently with the presumption of the testator’s having the first regard for the welfare of his child.

In the bequest to *Frances*Lane, the direction is, that *Kate*be delivered immediately after the death of the child. This is most express that at the death of the child, and not any remoter event, the legatee was to take, and, as I have said before, the dispositions over of the personal was not to precede the limitation over of the real estate. The term *delivered,*in this, and the precedent bequest, corresponds with this construction.

Suppose the child to have arrived at an age proper to have received its part of the personal estate, this estate would have been delivered to the child; by the delivery to the child, the executrix, or any personal representative of the testator, would have nothing more to do, under the will, in respect of any delivery, and could not further comply in the direction to deliver to *Frances Chew.*In directing the delivery, the testator is to be understood as speaking to the person entrusted with the execution of his will, but after having delivered to the child at the proper age, this person could not afterwards deliver to the other legatee, or to *Frances Lane.*By this very delivery to the child by the executrix, she would have been *oficio functa,*consequently it is to be inferred from this direction, that the legacies should fall to the aforesaid legatees, on the event of the child’s death, before its age to receive the estate, since at that age the delivery ought to be made t© the child, and afterwards could not be made by the executrix to the legatees. This arises on the will, minute, indeed, it may appear to be, but circumstances as minute have been insisted upon in construction.

Further, it appears that the testator did not look forward to the very remote event which might not happen in a succession of several generations. This appears from his directions respecting the other legatees, and particularly hi *499the bequest to *Frances*Chew, to whom he bequeathed the negro, Kate.

In 2 *Burr.*920. very extensive expressions were restrained on a consideration of other expressions in the will. Loi-d *Eardwicke*observes, that words may be expounded, but not struck out. 3 *Atk.*233. Lord Macclesfield, in 2 P. *Wms.*194. supplied and construed *produce*in a sense he would not have allowed, but to support an implicative intention. See P. *Wms.*500. *Sel.*Ca. *in*Chan. 12, 13. stress laid on the word *payable.*

In *2 Burr. 767.*the testator had three sons, *R, I.*and *W. infants ;*some lands he devised to *R.*and his heirs, and other lands to *I.*and his heirs : in case *R.*or *I.*die, then *W.*to have the lands devised to *I.*to *W.*and his heirs. *L*died aged, and without issue, intestate. *W.*claimed — . held he should not take. Here was no contingency mentioned in the will. The meaning was collected from all the parts of the will. Lord *Mansfield*collected, that the testator certainly did not mean mere estates for life to his two eldest sons ; therefore he must mean a dying on some contingency. The question, what ? it not being expressed. His lordship tabes notice of the children being minors, and other circumstances in the will, and infers the contingency to be a death within age, and without issue, a contingency» not expressed.

In the construction of a will, the connexions of a testator, and the consequential motives he may naturally be supposed to have, are material, and a construction to prevent the falling of a hardship upon a child, seems, therefore, to be just ; but the child being taken care of, why establish an effect in which he is not interested, and which would contradict the plainest intentions in other respects ?

A man makes a will, afterwards marries and has a child; this on the presumption is a revocation ; but if he had no brother or sister before making his will, and had thereby given his estate to a stranger, and a brother or sister had been born afterwards, this would be no revocation.

*500*Plozuclen*observes, that in a doubtful case, either in the construction of a statute or a will, a man should suppose himself in the situation of the legislature or testator, and ask the question — had I foreseen the qase, how would I have provided for it ? Had the testator, in the present instance, foreseen that the child would die at the age of six months, can we imagine he could have had any motive to change the objects of his bounty ? In the case above cited from *Burr. 767.*(as well as many others,) the Court proceeded on this principle — “ the testator could not mean mere “ estates for life. He must mean some contingency. He a could never mean, if *I.*or *R.*left issue, nor to preclude “ them from disposing when of age.” He could not mean what would have been unnatural or hard. In the case of *Mendez*v. Mendez, 3 *Atk.*619, 620. (a case too long to abstract,) Lord *Hardwicke*proceeded upon a similar principle. This case nearly observed, applies very strongly.

Opinion.

*William Lock*seised in fee of certain lands, devised the same to his son William, *his heir at*law, without any express limitation of estate, and then follows this clause, viz. “ But my will and intent is, that if my son should die be-a fore he attains the age of twenty-one, *or*that he should *u*die without issue of his body, lawfully begotten, then the *u*said lands to be my cousins’ *D. and J. Weems,”*&c.

The case states that William, the son, survived his father and attained his age, and died leaving his wife pregnant. That there is now no issue of *William,*the son, and that the lands are claimed by *D.*and *y. Weems*under the limitation aforesaid, and the question is, whether this claim be maintainable ?

I am of opinion that *JD.*and *y. Weems*are not entitled, because, as I conceive, it was the intention of the testator, that the limitation over should take eifect only upon the contingency of his son dying within age *and*without issue, and only part of this contingency has happened, because *501tiie son attained his age. If the claim on the limitation over could be supported, it would be on this ground, that the above clause being in the disjunctive, it consists of two contingencies, and therefore either happening, the title on the limitation commenced. The question is not, what is the strictly proper import of the term *or,*but in what sense it was used by the testator, and this is to be inferred by the situation the testator was in, and from what were the objects of his contemplation when he made his will. The effect of a disjunctive construction, would have been, in case the son had died in his minority, and left children, that they would have been disinherited, and yet a provision for his son and issue, was plainly, as it was naturally, the object of his care. This consideration had great weight with Lord *Mansjield,*in 1 Burr. 2.34. where the devise was to *A.*and *B.*in trust to maintain *C.*and *D.*during their minority, and *when, and as they*should attain their age, to them and their heirs equally. Suppose, said his lordship, the object of the tes-' tator’s bounty, had married and died in his minority, having issue, could the testator intend to disinherit ? Certainly not. He held it to be an *immediate*devise, notwithstanding the words *when*and *as,*&c. and with what liberality wdils are to be construed, notably appears by 2 *Burr.*770.

The question comes out then, to be, whether it can be reasonably inferred, that the testator intended his cousins should be preferred to his son’s children, had the son died in his minority? If this intention cannot be inferred, there is an end of the matter. It is not material to consider what has been the event of there being no issue, but the state of things, and the situation of the testator when the will was made.

. *William*was the testator’s heir at law. Without the will the land would have descended to *him;*so far as the will modifies his estate, it is derogatory from his right as heir at law, and ought not therefore to be doubtful. Had the devise been to him and his heirs, it would have been -void, and he would have taken by descent. Under these circumstances, the reasonable supposition is, that the testa? *502tor meant, in case his son should not live to be capable of" ( disposing of his estate, *and*should have no children, I), and *J. Weems*should take, but not otherwise ; put the case that *William,*the son, had attained his age and left issue, and it cannot be imagined that _D. and *y. Weems*could take against the issue ; and -why not ? Because, in the event supposed, it is plain that the issue of the son are preferred to the cousins. Put the case then, that *William*had died in his minority and left issue j if *D.*and *y., Weems*might take against the issue, it must be because on this event, the testator intended to prefer his cousins to his son’s children. But can any reasonable motive be assigned for preferring the issue on the one event, and preferring the cousins on the other? The supposition of such caprice, can be no good ground of construction, and yet if the clause be taken upon the force of the word *or,*disjunctively, (and it must be so taken to found the claim of *D.*and *y. Weems,)*in case the son had died within age, and left issue, *D.*and yC *Weems*would have been preferred to the issue, which, I am of opinion the testator never couldintend. Perhaps a casual expression dropped by a Judge may be objected, and it may be said to have'been the father’s design to restrain the marriage of his son before twenty-one,, but this can be of very little weight, not only because the point was not resolved, but because the observation was in itself but very slight; for the provisions of the will intimate nothing like such a design. And if this had been the design, the father most probably would have been so explicit, as that his infant son would have been clearly informed of his design, and not have involved his meaning in so great obscurity. Further, the testator has not made auy degree.of a proper pro- ■ vision for the purpose ; for, put the case that the son had married in his minority, afterwards attained his age, and then died leaving issue, no one can imagine that D. and *J. Weems*could claim against the issue; so that the objection must suppose, (than which hardly any thing can be more absurd,) that the check meant by the testator, upon the *503son’s marrying in his minority, was, that if he did so, and happened to die in his'minority leaving children, his issue should be disinherited; but, that if he did so marry, and afterwards happened to attain his age, his issue should inherit; again the objection contradicts, itself. It supposes the testator apprehended his son would be so indiscreet, if he married in his minority, as to marry improperly, and therefore laid the restraint; but yet Chat he thought his son would be so very discreet and provident as not to ■many in his minority, when threatened with the consequence of not having his children provided for, *on the event of his dying in his minority,*

I cannot distinguish this case from that of *Price*v. Hunt, in *Pollexfen’s Rep. Barker*v. Suretrees, in 2 *Strange.*Besides that *Pollexfen*is relied upon in *2*Strange, it is also cited and relied upon by Lord *Hard*wicke, in *B. E. L.*

It is true, that in the present case, the devise was not to *William*and his heirs, but as he was the testator’s heir at law, the difference is quite immaterial.

Upon the whole matter, I am of opinion, that inasmuch as *William*the devisee, son, and heir of the testator, attained his age, the contingency did not happen,- on which the limitation to *D.*and *J. Weems*was to take effect, and consequently that *D.*and *f. Weems*have no title to the land in question.

*Daniel Dulany,*11th November, 1768.

Opinion.

I am of opinion, that *William*having survived his age of twenty-one, the contingent limitation over in favour of *David*and *fames*Weems, could never take effect; the words must be construed, as if the testator had said, *in case my son William shall eke before he attains the age of*twenty-one, *without issue,*conjunctively and not disjunctively ; otherwise this absurdity would follow, that if *William*had died under age leaving issue, the issue would *504have been disinherited. This reason governed the case of *Price*v. Hunt, in *Pollexfen's*Rep. and the case of *Barker*v. Suretrees, in *Strange’s Rep.*and I have known it thus ruled in other cases.

C. Toríe, *March*28, 1769.

' *The Court of*Appeals, at *February*term, 177o, reversed the judgment of the Provincial Court. The plaintiff appealed to the King in Council.