#### *William A. China and others*vs. *George W. White and others*

Tostator, having four children, *all of*age, and a grandson, *a minor,*made his will, by which he bequeathed certain personalty, “ to be equally divided amongst my children, and my grandson, to them and the lawful heirs of their body — if either of my children, or said grandson, shall die under age, *o'r*without leaving living issue, his or her part of my property is to return to my surviving heirs” *:*— Held, that *or*must be construed *and;*that the contingency provided for was, the death of the first taker “underage, and without leaving living issue;” that, therefore, each of the *children*took an absolute and indefeasible estate in his or her share.

*Before*Dargan, Ch., *at*Williamsburg, *February,*1853.

D'argan, Ch, The will of William Taylor bears date the *4274th March, 1821. He died in 1822, leaving the said will unre-voked. He left surviving him his wife, Mary Taylor, one son, Samuel P. Taylor, three daughters, Mary Nelson Taylor, Susan-nah Elizabeth Taylor, Maria Bonneau Taylor, who afterwards intermarried with Thomas China, and a grandson, George W. White, the only child of a daughter of the testator, who had died before the execution of the will.

The testator bequeathed to each of his children, and to his grandson, one negro. He had, in a previous clause, directed certain property to be sold for the payment of his debts. Having made these dispositions, he then declared as follows:

*“*The rest and residue of my personal property is to remain on my plantation, for the support and maintenance of my wife, Mary Taylor, and daughters who may remain unmarried at my death, during the life time of my wife, Mary Taylor; and at her death, the whole of my personal property, not already bequeathed, to be equally divided amongst my children, and my grandson, George W. White, share and share alike, to them and the lawful heirs of their body; 'but if one or more of my children or grandson shall die before that time, leaving issue, that issue is to have that which the parent would have been entitled to if living.”

*“*It is my will and desire, that if either of my children, or said grandson, shall die under age, or without leaving living issue, his or her part of my property is to return to my surviving heirs. It is my will and desire also, that my plantation and lands shall remain for the use and benefit of my daughters, as long as any of them shall remain unmarried, and at the death or marriage of all my daughters that are single, then said lands to be sold at public auction, on a credit of twelve months, by the executor, and the money arising from such sale to be equally divided among my lawful heirs, share and share alike.”

Samuel P. Taylor died in the life time of his mother, the testator’s widow, without issue and unmarried. On her death, the testator’s personal property, disposed of in the residuary *428clause, was divided among the testator’s children, and his grandson, according to the directions of the will.

Maria Bonneau Taylor, who, after the testator’s death, intermarried with Thomas China, died in April or May, 1852, leaving her husband, the said Thomas China, and ten children, namely : William A. China, Thomas J. China, LouisaS. China, Mary T. China, Harriet A., the wife of David M. Mason, Mag-daline, the wife of Peter R. Keals, Frances H. China, Samuel M. China, Lenora M. China, and John It. China, surviving her.

Mary Nelson Taylor died in August, 1852, aged sixty years or upwards, without issue, without ever having been married, and intestate.

The children of Maria B. China, above named, and the husbands of her married daughters, have filed this bill for a partition of the estate, of which Mary Nelson Taylor died possessed. They have made Susannah E. Taylor, George W. White, and Thomas China, (their father,) defendants in the cause. The plaintiffs allege, that all the negro property of which Mary Nelson Taylor died possessed, are the same negroes, or the issue thereof, which she derived from the will of her father, the said William Taylor; and this fact is not disputed. The plaintiffs further allege, that Mary Nelson Taylor took, by the will of her father, an estate in these negroes, defeasible upon a condition that has happened; that they, as remaindermen, are now entitled to a share in said negroes; and they claim that the division should be *per capita.*Failing in this proposition, they claim a division *per stirpes ;*and failing in this, they claim as the distributees of the said Mary Nelson Taylor. They also ask for an account.

The defendants, Susannah E. Taylor and George W. White, in their answer say, that Thomas China, the father of the plaintiffs, has been improperly made a party, and that he has no part or lot in the matter. They further say, that they, as “ the surviving heirs ” of the said William Taylor, are entitled to the • whole of the property of which Mary Nelson Taylor died possessed, and which she derived under her father’s will; and if not so entitled, that, under the limitations of the will, or as the *429distributees of Mary Nelson Taylor, they are entitled to a division of the property *per stirpes,*and not *per capita.*These are the issues of the cause.

The construction of this will is not free from difficulty. The condition, upon which the estate given by the testator to his children and grandson, was to go over, or as he has expressed it, was to return to his surviving heirs, was their *dying under age, or without leaving living issue.*If the will is to be construed by its own terms, without reference to collateral and extraneous facts, the interpretation would be easy, both upon principle and authority. To give to the language employed in this clause its literal import, the testator would be-made to express two independent conditions, upon the happening of either of which, the estate was to pass away from the first object of his bounty. Upon this construction, if the legatee died, either under age or without leaving issue, the estate would be defeated. Although the legatee might die under age, but leaving issue, the issue could take nothing. To avoid imputing to the testator so unreasonable, and, in many instances, so unnatural an intention, as to design that the property should pass away from the issue of the first object of his bounty, to collateral or distant kindred, or to persons of *no*kindred blood, the Court presumes that the testator has used the conjunction in a loose and ungrammatical sense, by no means uncommon in careless and inartistic composition. Upon this ground, in cases like the present, the Court has presumed, that the testator has inaccurately used the disjunctive for the copulative conjunction, and for the purpose of carrying into effect his intention, *“*or ” has been construed into “ and.” More particularly should this rule of construction apply in a case like the present, where the testator had, in a previous clause, given the property to his children and *the*law*ful heirs of their body.*The doctrine is fully recognized in the case of *Scanlan*vs. Porter, 1 Bail. 427. It is the first reported case of the kind in South-Carolina. It has been frequently followed since. The principle is supported by the most unanswerable reasoning, and by the highest authority. See *Burhans*
      *430vs. *Blanshan,*6 Johns. 54, where Chancellor Kent has given a masterly analysis of the doctrine, and the authorities in support of it.

But the difficulty which has been suggested in this case, arises upon a matter outside of the will. Mary Nelson Taylor was thirty years of age at the date of her father’s will. Each of his other children had, before that time, attained their majority ; and, of all his legatees, his grandson, George W. White, alone, was under the age of twenty-one years. It is. urged, that the testator must be presumed to know the ages of his children. I think this a reasonable presumption in most instances, particularly in this case, where the testator’s children had advanced a considerable period beyond their minority. Upon this presumption, it is further contended, that the doctrine of *Scanlan*vs. *Porte)',*though it applies to the legacy in favor of George W. White, cannot apply to those in favor of Mary Nelson Taylor, and the testator’s other children, who, at the execution of the will, had already attained the age of twenty-one years. For if this doctrine is to prevail, (the argument is,) then, at the very execution of the will, the limitation was ineffectual, because, at that period, it had already ceased to be possible that the testator’s children *could*die *under age*and without leaving issue. This, as to them, it is- said, is putting the limitation obviously intended by the testator upon an impossible condition, which is unreasonable. Why did he attempt to create a limitation which was clearly a failure from the beginning *1*This is the argument in favor of the plaintiffs. The argument founded upon the *reductio ad absurdum,*may be retorted by the defendants with some degree of force. If the testator *did*remember the ages of his children, and intended the disjunctive construction contended for by the plaintiffs, why did he make the limitation to depend upon two separate conditions, *one*of which was impossible at the execution of the will *1*This construction would strike out the whole of the first condition, (the death of the children under age,) as a nullity. There could be no meaning in those words. They would be *431utterly void of sense, and as if they did not occur in the will. Is not this difficulty, which is opposed to the interpretation of the plaintiffs, as great as that which they urge against the construction of the opposite party *?*

Again: it is admitted that the doctrine of *iScanlan*vs. *Porter*would apply to the case of George W. White ; that, as to his legacy, “ or ” would be construed £! and and the limitation over would not take effect unless he died, *both under age and without leaving issue.*Hence would arise the incongruity and absurdity of deducing two different meanings for the testator, from the same language and from the same sentence. It can hardly be that he intended to give George W. White an estate different from that which he gave to his children.

An eminent English commentator, (Jarm. on Wills, 1 vol. 446,) in his remarks on this subject, uses the following language : *“*It is obvious that the ground for changing *or*into *and*exists *a fortiori,*where children or issue are the express objects of the testator’s bounty.”

At the same page, he further says: “ it would seem that the principle in question would apply in every case, where the gift over is to arise in the event of the preceding devisee or legatee dying under certain prescribed circumstances, *or*leaving an object who would, or, at least, *might,*take a benefit derivatively, through the devisee or legatee, if his interest remained undi-vested ; and to whom, therefore, it is probable that the testator intended indirectly a benefit, not dependent upon the devisee or legatee dying under the prescribed circumstances or not. In this point of view, it would seem to be immaterial whether the dying is confined to minority, or is associated with any other contingency : as in the case of a gift to A., and if he shall die *in the life lime of B.,*or *without issue, then over ;*or whether the event is leaving issue, or leaving any other object who would derive a benefit through the legatee, if his or her interest was held absolute.”

Upon the whole, though not without some misgivings, I am *432of the opinion that the copulative construction should prevail ; and it is so ordered and decreed.

This construction makes the property in question the absolute estate of Mary Nelson Taylor, in regard to which she died intestate, and which must be divided according to the provisions of the statute of distributions: one-third part thereof to the plaintiffs, one-third part to Susannah E. Taylor, and one-third part to George W. White. It is so ordered and decreed.

It is further ordered, that a writ of partition do issue, at the instance of either of said parties.

It is further ordered, that the accounts of the administrator of Mary Nelson Taylor be referred to the Commissioner.

It is further ordered, that the question as to the sale or gift of the negroes, Neptune and Lavicy, be reserved, and that the Commissioner report thereon.

The complainants appealed, on the grounds:

1. That the limitation over, in the will of William Taylor, to his surviving heirs, took effect on the death of Mary N. Taylor, without leaving issue ; and that she consequently did not take an absolute estate in the property sought to be partitioned in the bill of the complainants.

2. That the decree was, in other respects, contrary to law and evidence.

The defendants appealed, on the grounds :

1. Because, under a proper construction of the will, the defendants, George W. White and Susannah E. Taylor, are entitled to the slaves held by Mary N. Taylor, as the surviving heirs of the testator.

2. Because, conceding that Mary N. Taylor took an absolute estate in the property, the partition ordered is premature, as she has not been dead twelve months, and there has been no administration on her estate.

Miller, for plaintiffs.

*Dargan*and Porter, for defendants.

*433The opinion of the Court was delivered by

Dae.gan, Ch.

In announcing the judgment of the Court, in this case, I deem it necessary to add but little to what has been said in the Circuit decree.

The diffidence and doubt with which I arrived at and expressed my conclusion, upon the Circuit, have been greatly diminished, by finding my opinion supported by the judgment of the Court of Errors, in *Ward*vs. Waller, 2 Sp. 786, which was not brought to my notice, or considered by me, upon the Circuit trial. In the case cited, the testator, William Waller, bequeathed legacies to his children ; and among others, he bequeathed to his son, Samuel Waller, the use of certain negroes ; to him and the lawful issue of his body forever. In a subsequent clause, the testator declared, “if any of his children before named should die under age, or without leaving lawful issue of their body, that the legacy bequeathed unto them, and the property given to them, be equally divided among his surviving children,” &c. The limitations of this will, it will be perceived, are very similar, in all respects, to the limitations under the will of William Taylor. There is another strong feature in the resemblance. The question was as to the limitation of the negroes given to the testator’s son, Samuel Waller. And he was over the age of twenty-one years, at the execution of the will. This fact appears obscurely upon the report of the evidence, but is said to have been earnestly pressed in the argument, and was assumed by the Court of Errors, in the argument accompanying the judgment. The case was reasoned by the Court, upon the supposition that the fact existed. In the construction of William Waller’s'will, “ or ” was construed “and,” and the fact that Samuel Waller, the first taker, was of age at the execution of the will, was considered not to vary the interpretation. The two cases, as to this point, could scarcely have been more similar. The decision is not without strong support from the case of *Usher*vs. *Jessep,*12 East, 288.

I am satisfied with the Circuit decree. Subsequent reflection has rather strengthened my opinion, therein expressed.

*434This Court concurs in the conclusions of the Circuit decree.

It is ordered and decreed, that the said decree be affirmed, and the appeal be dismissed.

Johnston, Dunkin and Wardlaw, CC., concurred.

*Decree affirmed.*