#### Decima Heyward, Adm’x., et. al., *vs.*Ex’ors Nathaniel Heyward, et al.

Testator devised his whole estate to his wife for life, with remainder to his brother N., absolutely; “provided that N. do pay unto my brother T., *or his heirs,*the sum of five thousand pounds — one moiety thereof to be so paid at the expiration of one year from the decease of my wife, and the other moiety thereof to be paid at the expiration of two years from her decease.” T. died in the lifetime of the widow, tenant for *life:*— Held, that the legacy to T. was not an absolute one, but that, in the event which had happened— T.’s death before the tenant for life — his heirs took directly under the will and as substitutes for him.

*Held,*further, that T. could not receive or discharge the legacy so as to defeat his substitutes.

BEFORE BUNKIN, CH., AT CHARLESTON, FEBRUARY, 1853.

Dunkin, Ch. James Heyward, of Combahee, by his will bearing date 10th May, 1796, devised and bequeathed his entire estate, real and personal, to his wife, Susan Heyward, during her natural life ; and then declared as follows : “And from and after the decease of my said wife, I give, devise, and bequeath all my said estate, real and personal, unto my brother Nathaniel Heyward, to have and to hold the same, and every part and parcel thereof, unto the said Nathaniel Heyward, his heirs, executors, administrators, and assigns, for ever: provided always, nevertheless, that my said brother Nathaniel Heyward shall and do faithfully and punctually pay unto my brother Thomas Heyward, or his heirs, the full and just sum of five thousand pounds, lawful money of the State of South Carolina; one moiety thereof to be so paid at the expiration of one year from and after the decease of my said wife Susan Heyward, and the other moiety thereof to be paid at the expiration of two years from and after her decease; and with the payment *290of tbe said sum of five thousand pounds, in manner aforesaid, I hereby charge and make liable all my estate, real and personal, from and after .the decease of my said wife.” Of this will the testator’s wife was appointed sole executrix, and he shortly afterwards departed this life. His widow subsequently intermarried with Charles Baring, and survived until 1845 ;— on her decease, the late Nathaniel Heyward entered into possession of the estate, ahc[ held and enjoyed the same until his .decease on the 12th April, 1851. The defendants are the executors of his last will and testament.

On 6th April, 1852, these proceedings were instituted, setting forth, among other things, that Thomas Heyward died in 1809, having previously executed his last will and testament, by which he devised and bequeathed his whole estate, absolutely, to his widow, Elizabeth Heyward, whom he appointed sole executrix of the same; and leaving also three children, and one grand-child, now Mrs. Elizabeth M. Hamilton, the daughter of a predeceased son. The bill is preferred at the Instance of the administratrix of a son of Thomas Heyward, who survived his father, and of the grand-daughter, Mrs. Hamilton, insisting that, upon the death of Thomas Heyward in 1809, his children and grand-child “ became and were entitled to the reversion of the said legacy of ¿65,000, lawful money of South Carolina” — and that, although “they have been informed and believe that the said .Nathaniel Heyward, in his lifetime, paid or accounted for the said ¿65,000, either to Judge Heyward, or to his widow and executrix; yet they insist that the said sum was a substitutional gift to the children, or .descendants of Judge Heyward, in case of his dying in the .lifetime of the legatee for life” — and that “ no payment to, or release from, Judge Heyward, or his widow and executrix, can .discharge or bar the complainants’ several rights and they aver that “they have never received satisfaction of their interest ..in the said legacy, either from the said Nathaniel Heyward, ;nor from Judge Heyward, nor his widow and executrix.”

*291The defendants submit, that, according to the just con-. struction of the will, this was an absolute gift of *£5,000*to the testator’s brother, the payment only of which was postponed to a future day. To show that this, at least, was the understanding of the parties, and that they had settled in conformity thereto, certain documentary or written evidence was introduced on the part of the defence. A paper in the handwriting of Thomas Heyward (formerly and for ten years a Judge of the Court of Common Pleas of this State) was offered, which is as follows : *“ Memorandum*— 25th June, 1802 — Whereas my brother, Nathaniel Heyward, has met the decree obtained by William Brailsford against me, and fully satisfied the same, amounting to four thousand one hundred and sixty-one pounds, (12. 2) in consideration whereof I promise to pay to my said brother, out of the legacy of five thousand pounds given to me by my brother James, whenever the same shall become due, the aforesaid sum of four thousand one hundred and sixty-one pounds, (12. 2) with interest from 8th October, 1801; and if the interest should exceed that amount of the legacy when it becomes due, then the deficiency to be made good out of any part of my estate.” Signed, “ Thomas Heyward.” Indorsed on this paper, and in the handwriting of the late Nathaniel Heyward, is the following : “ Settled by bond and mortgage, ,30th Oct., 1823. (Signed) Nathaniel.Heyward.”

Judge Heyward died, as has been stated, in 1809, leaving his whole estate to his widow, Elizabeth Heyward. On 30th October, 1823, an adjustment was made between her and Nathaniel Heyward, in which it appeared that she was indebted to him in the sum of fifteen thousand dollars, for which she executed to him her bond, payable in three equal annual instal-ments, from 1st January, 1824, and secured by a mortgage of one hundred and sixteen negroes. On the same day, she executed an instrument, of which the following is a copy: “ State of South Carolina — To all to whom these presents shall come, I, Elizabeth, Heyward, of White Hall, widow, send greeting: *292Whereas James Heyward, late of the State aforesaid, Esquire, by his last will -and testament, bearing date the tenth day of May, one thousand seven hundred and ninety-six, gave and bequeathed to his brother, the Hon. Thomas Heyward, five thousand pounds sterling, to be paid after the death of Mrs. Susan Heyward, now Baring, by Nathaniel Heyward, Esquire, devisee and legatee in remainder after the death of Mrs Baring, of all and singular the estate, real and personal, of the said testator: and whereas the said Thomas Heyward was in his lifetime, and at the time of his death, indebted to the said Nathaniel Heyward in divers large sums, not exceeding the amount of the aforesaid legacy; and being so indebted, by his last will and testament gave and devised all his estate, real and personal, to me, the said Elizabeth Heyward, and appointed me executrix of the said will: and whereas, on a settlement of all matters of account between the said Elizabeth Heyward and the said Nathaniel Heyward, he, the said Nathaniel Hey-ward, has allowed the full amount of the said legacy to me, the said Elizabeth Heyward, executrix as aforesaid, without any deduction or discount whatsoever, although the same is not due, and will not be due, until the death of Mrs. Baring, who is yet in full life. Now know ye, that I, the said Elizabeth Heyward, for and in consideration of the premises, have remised, released, and forever quitclaimed, and by these presents do remise, release, and forever quitclaim to the said Nathaniel Heyward, all and all manner of action or actions, suit or suits, cause or causes of action, reckoning, or demand whatsoever, which I, the said Elizabeth Heyward, may have, or claim, or which my executors or administrators, or the representatives of the said Thomas Heyward might have, claim, challenge or demand, if these presents had never been made, against the said Nathaniel Heyward, for and on account of the will of the said James Heyward, and the legacy or legacies, therein contained, or for and on account of any other matter, cause, or thing whatsoever, from the beginning of the world to the *293day of tbe date of these presents. In witness whereof, I, the said Elizabeth Heyward, have hereunto put my hand and seal this, the thirtieth day of October, and in the year of our Lord one thousand eight hundred and twenty-three. (Signed) E. Heyward. [L. S.] Signed, sealed, and delivered in presence of Henry Deas.”

A letter from Mrs. Elizabeth Heyward to Nathaniel Hey-ward, dated 15th June, 1826, was- also put in evidence, from which it appeared that he had subsequently released one half of the debt of fifteen thousand dollars.

Other matters were spoken of between the counsel at the, hearing, but no distinct evidence on the points was offered — ■ such as that the distributees of James Heyward (son of Judge Heyward) disclaimed any interest in these proceedings, and also that the grand-daughter of Judge Heyward, who is one of the complainants, had received no part of his estate, directly or indirectly. It was probably not deemed necessary by either party, to make proof upon these subjects for the purpose of submitting for adjudication the principal question which arises.

It may be well, then, to consider what was the interest of Judge Heyward on the death of the testator, without reference to the words, *“*or his heirs.” It was a legacy of five thousand pounds, payable at a future day, and chargeable on the real and personal estate of the testator. Was this legacy vested or contingent? This depends on the inquiry, whether the testator intended to annex the time to the payment of the legacy, or to the gift of it — for, as stated by Mr. Jarman, (1 Jarm. 760, the rule is, that if *futurity*be annexed to the substance of the gift, the vesting is suspended; but, if it appear to relate to the time of payment only, the legacy vests *instanter.*The case of *Oheffars*vs. *Abell*is cited as an illustration. Bequest of stock to trustees to pay ¿£40 per annum to testator’s daughter M. for life; and after her decease to pay, assign, and transfer the sum of ¿£1,000 stock equally among all and every the child or children of M., share and share alike, *to be paid and transferred**294*to them when and so soon as the youngest should attain his or her age of twenty-one years ;*and directed that after the decease of bis daughter, the dividends should be applied to the maintenance of the children. At the death of testator, M. had four children, one of whom died before the youngest attained twenty-one years of age; the youngest alone survived M.; the Yice Chancellor held that the four children took vested interests in the stock. “ There was,” he observed, “ in the first place, a clear gift to all the children in the shape of a direction to pay and transfer, followed by another direction to pay and transfer, *‘*when and so soon as the youngest of such children should attain his or her age of twenty-one years.’ ” It seems formerly to have been held in reference to pecuniary legacies payable *in futuro,*and charged on real estate, either primarily or in aid of the personalty, that they could not be raised out of the land if the devisee died before the time of payment. But the distinction is now well settled, that if the postponement of payment *be with reference to the circumstances of the devisee of the money,*as in the ease of a legacy to A., to be paid to him at the age of twenty-one years, the charge fails as formerly, unless the devisee lives to the time of payment. But, on the other hand,'if the postponement of payment appears to have *reference to the situation or convenience of the estate,*as if land be devised to A. for life, remainder to B. in fee, charged with a legacy to C., payable at the death of A., the legacy will vest *instanter;*and consequently if C. die before the day of payment, his representatives will be entitled; the raising of the money being evidently deferred until the decease of A., in order that he may, in the meantime, enjoy the land free from the burthen. 1 Jarm. 756. In applying these principles, it is very apparent to the Court that this was intended as a legacy of £5,000 to the testator’s brother, Thomas Heyward, a “clear gift, (in the language of one of the eases,) the payment alone of which was postponed, not with reference to the circumstances of the legatee, but with reference to the situation or *295convenience of the estate.” He took a vested transmissible interest on tbe death of the testator, and in the event of his decease before the day of payment, his personal representative would have been entitled to receive it.

The remaining enquiry is, whether this vested interest is rendered defeasible by the superadded words, “ or to his heirs.” In general, the construction for which the complainants contend, has been insisted on for the purpose of preventing a lapse. “ A testator is never to be supposed to mean to give to any but those who shall survive him, unless the intention is perfectly clear.” The object, in many of the cases, has been to establish this intention by showing that the testator had clearly substituted the plaintiffs for the principal legatee. And so where the legacy was not to vest until a future period, and would consequently lapse by the death of the legatee after the death of the testator but prior to the period for vesting, the Court is ready to lay hold of words indicating the intention of the testator that in such event the children, or the next of kin of the legatee, should be substituted, and thereby prevent the legacy from being altogether defeated. In order to give effect to this construction, where the intention was manifest, words have received an interpretation different from their ordinary legal signification — “ heirs” have been held to mean “ next of kin,” and “representatives” to mean “children,” &c. *Grittings*vs. *McDermott,*2 My. & Keene, 69, (a case much relied on by the plaintiffs,) is an illustration. The legacy to such of Elizabeth Wall’s children as predeceased the testator, had clearly lapsed, unless the Court construed the subsequent words dis-junctively, and declared that under the terms “ or to their heirs,” the testator intended to provide for an alternative bequest, in the event of the death of the principal legatee in his lifetime; and so in *Price*vs. *Lochley,*6 Beav. 180, unless the words, “ or their heirs lawfully begotten,” were construed disjunctively, it might very well have been contended that only the children who survived the tenant for life were entitled. *296These words so construed, prevented the surviving children from taking the whole fund, but the same construction necessarily rendered the interest of Joseph defeasible. But if the primary legacy is vested, it should not be rendered defeasible by superadded' ambiguous expressions. This appears to the Court to be strikingly exemplified in *Corbyn*vs. *French,*4 Yes. 418, decided by Lord Alvanley, and properly characterized by the plaintiffs’ counsel as “a great and recognized authority.” Testator devised his estate to trustees to invest in the funds, and pay the dividends to his wife during her natural life. At her decease he gave to his niece, “ Elizabeth Cooper, the sum of two thousand pounds, or to her proper representative, in case she should not be living at the decease of my wife. I also give to each of the children of my sister Elizabeth, viz., John, Dorothy, William, and Christopher, or their representatives or representative, the sum of two thousand pounds.”

*John Barker,*one of the children of the testator’s sister Elizabeth, died during the life of the testator, leaving a widow and children; *Christopher Barker,*another son of the testator’s sister, died soon after the death of the testator, but during the life of his widow.

It was contended on the part of the residuary legatee, that both the legacies to John and Christopher had failed by the death of the former during the life of the testator, and of the latter during that of his widow.

“ The question is,” says Lord Alvanley, “ whether they are vested and transmissible to the representatives. I am very clearly of opinion, the legacy to,Christopher Barker is good; this is stronger than the common case of a legacy to A. and his representatives. There those words are surplusage: for, if the legatee dies before the day of payment, it would go to his representatives. But in this case there is a reason for inserting them; this is not an immediate legacy, but after the death of another person — there is, therefore, an interval in *297■which the legatee might die; and, though it vested, he might not live to receive it; *that addition might be inserted to put it out of doubt;*afid must mean, in case they die in the life of the testator’s wife. I desire to be understood to determine it upon that circumstance, that there is a life intervening.”

The legacy to John Barker, (who died in the testator’s lifetime,) he held to be lapsed, notwithstanding the superadded words, “or to his representatives” — “for,” said he, “see the preceding legacy to Elizabeth Cooper: would not that have lapsed, if Elizabeth Cooper had died in the life of the testator? Beyond all question it would. It is nothing more than saying, it shall go to her representatives, if she dies before his wife. As to the *others,*the children of his sister Elizabeth, I am of opinion it is nothing more than a gift to them at the death of his wife; but it was intended only as a beneficial interest to them; and must, as such, vest in them, before it could be transmissible.”

It is hardly necessary to remark, that Lord Alvanley uses the word representative throughout in its strict legal sense, as when he says, “ in a legacy to A. and his representatives, these words are surplusage, for, if the legatee die before the day of payment, it W'ould go to his representatives,” &c. The life estate was to the testator’s widow. At the decease of his widow, he gives to Christopher Barker, or his representatives, two thousand pounds; according to the judgment of Lord Alvanley, this “ was intended only as a beneficial interest to Christopher Barker, and must, as such, vest in him before it could be transmissible.” But for the intervening life estate, the words, “ or his representatives,” would have been merely surplusage. But what is the effect of that circumstance ? not to create a substitutional legatee — but “ there was an interval in which the legatee might die, and, though it vested, he might not live to receive it. That addition might be *inserted*to put it out of doubt,” &c. It was entirely consistent with a personal gift to Christopher, that the testator should direct it to be paid to his *298representative in a particular event. Christopher Barker having survived the testator, took a vested transmissible interest in the legacy of two thousand pounds, which, on his decease, passed to his legal representative like any other personalty. When the life estate fell in, the interest thus transmitted, or the legacy became payable *by law*to his representative, as (to put it out of doubt) “had also been directed by the *express terms of the bequest.”*

In commenting upon this case, Mr. Jarman reminds the reader that, in several instances, the words “ representatives” and “ heirs,” when applied to personalty, and even “ executors or administrators,” have been held to be synonymous with *next of Idn ;*but the case is notwithstanding cited as illustrative of the principle stated by him, (to wit.,) that “ where the objects of gift in the clause are the executors or administrators, or personal representatives of the deceased legatee, such clause is considered as merely showing that the legacy is to be vested immediately on the testator’s death, notwithstanding the subsequent death of the legatee before the period of distribution or payment, and not as indicating an intention to substitute as objects of gift the representatives of those who die in the testator’s lifetime.” And, if such construction was adopted in reference to *John Barker,*whose widow and children were thereby cut off from the benefit of the legacy bequeathed to him, which was held to be lapsed by his death in the testator’s lifetime, much more strongly would it be held applicable to the vested legacy of *Christopher,*who survived the testator, but died previous to the period of distribution or payment.

Certainly it is competent for the testator, by an intention to that effect clearly expressed in his will, to declare that even a vested legacy shall be defeasible in a particular event, and in favor of others specially designated. But, where the primary legatee is the manifest object of the testator’s bounty or regard, and his interest is vested and would be transmissible, it is not only necessary to show a clear intention of substitution, but *299that the persons thus designated as substitutional legatees were in existence, in order to defeat the vested interest of the primary legatee. The presumption is in favor of the primary legatee. Where his interest has vested, it is not to be defeated by equivocal expressions, or by superadded words, perhaps only inserted to remove doubt, as to show the absolute character of his interest. Where, however, the event is distinctly indicated, and the substitutional legatees pointed out, the vested interest may be defeated by the happening of the event, and in favor of the legatees thus substituted. Such was the case of *Gray*vs. *Garman, 2*Hare, 268. Gift to testator’s wife, for life, residue to be equally divided between her brothers and sisters; and *in case*any of *them*should be dead at the time of her decease, *leaving*issue, such *issue to stand in their parents’ place.*The event is here distinctly marked, as well as the substituted legatees who were to take in that event. It was ruled, that the legacy vested in the brothers and sisters who survived the testator; and two of them having subsequently died *without issue*during the life estate, the legacy was payable to the predeceased legatees’ legal representatives. “ The gift to the brothers and sisters who survived the testator was determinable only on one event — their death- leaving issue: that event did not happen, and their interest in the gift was, therefore, not taken away.” It proceeds upon the principle that, when the primary object of the testator is clearly ascertained, and can be accomplished, it shall not be impaired, unless to carry into effect his bounty in reference to others equally well indicated. *Salisbury*vs. *Petty,*3 Hare, 86, was that ease. The primary legatee took a vested interest on the death of the testator, but his children were evidently substituted as the objects of the testator’s bounty in the event of their father’s death prior to the falling in of the life estate.

As in all cases, the leading object of the Court is to ascertain the intention of the testator. It has been justly remarked, that much confusion exists in the cases, in reference to the doc*300trine of controlling a gift at a *future time, or*a direction to pay, at a future time, or on a given event, (or other expressions denoting a postponement of the vesting of a legacy,) by reason of its being a bequest in the nature of a remainder. 2 Wms. Ex’ors. 1068. But the general proposition of Mr. Jarman meets the approval of Mr. Justice Williams, as well as of Sir James Wigram, to wit, that “ *though there he no other gift*than in the direction to pay or distribute in *futuro,*yet if such payment or distribution appear to be postponed for the convenience of the fund or property, the vesting will not be deferred till the period in question.” Applying this principle, it appears very clear that the sole object of postponing the payment was the situation of the property. In the language of Lord Hardwicke, in reference to a similar charge of a legacy on the estate of a remainderman, *Hodgson vs. Rawson,*1 Ves. 44; “ The legacy is held to be transmissible on this ground— that the remainder vested immediately by the death of the testator : and therefore the *legacy*vested in those to whom payable, and that the devisee must take it *cum onere;*it being equally intended that the legacy should be paid, as that the devisee should have the estate.” Mr. Ambler, commenting on this judgment, in a subsequent argument, says Lord Hardwicke held the legacy vested, and that the time was only given to the remainder man to turn himself round — he held it vested and transmissible because the devise of the estate vested immediately, &c. In whom then did the legacy of five thousand pounds vest, on the *death*of the testator, *James Heyward ?*It cannot be said to be in the alternative, either Thomas Heyward *or*his heirs, for *that*would be either unmeaning, or so uncertain as to render the legacy void. If the legacy vested at all, as has been shown it did, it vested at that time in Thomas Heyward; and the plaintiffs have the burthen of showing in the will an intention on the part of the testator that this vested interest should be defeated by his subsequent death, during the lifetime of the testator’s widow. Without any such defeasance, the *301effect -would be that this vested interest would be at tbe disposal of Judge Heyward, and on his decease, before it became payable, it would be payable to bis legal representative or representatives. On this point, the *form*of the will is not without significance, as illustrative of the testator’s intention. His manifest object was to secure to his brother, Nathaniel Hey-ward, his whole estate in remainder, and to secure to his brother, Thomas Heyward, a legacy of five thousand pounds. In order to effect the former purpose, the estate is devised to Nathaniel Heyward in the most ample terms. But the testator seems scarcely less anxious to place the accomplishment of the next object beyond contingency. The gift to Nathaniel Hey-ward is therefore accompanied with this proviso: “ Provided always, nevertheless, that my said brother Nathaniel Heyward shall and do, faithfully and punctually, pay unto my brother Thomas Heyward, or his heirs, the full and just sum of five thousand pounds, lawful money of the State of South Carolina —one moiety thereof to be paid at the expiration of one year from and after the decease of my said wife, Susan Pleyward; and the other moiety thereof to be paid at the expiration of two years from and after her decease: and with the payment of the said sum of five thousand pounds, in manner aforesaid, I hereby charge and make liable all my estate, real and personal, from and after the decease of my said wife.” It is not *in form*a gift of five thousand pounds ; but the direct devise is to Nathaniel Heyward, which he is required to take, as Lord Hardwicke says, *cum onere ;*and what is the burthen ? It is that he shall pay to Thomas Hayward, or his heirs, within two years after the decease of the life-tenant, the sum of five thousand pounds; and the only inquiry of any interest to the defendants is, whether that obligation has been fulfilled — that charge on the estate removed ? It would not have been without precedent, if the testator had devised his whole estate, taking from the de-visee an obligation to pay certain sums to different objects of the testator’s bounty or affection. If the will of James Hey-*302ward bad contained no more than the devise in remainder to his brother, Nathaniel Heyward,' who cotemporaneously with the date of the will, had executed a bond to the testator, reciting the devise, and with a condition in the very terms of this proviso, it would only have put in a different form the apparent purpose of the testator, and a mode of accomplishing that purpose. Can it be doubted that the payment of the sum of five thousand pounds, *ante diem, ad*diem, or *post diem,*would have been equally a performance of the condition of such obligation, and a satisfactory answer to any proceeding at law, or in this Court ?

In the judgment of this Court, it is manifest from the will, that as in *Oorhyn*vs. *French, “*this was intended only as a beneficial interest” to Thomas Heyward. The *time*of payment, and the *mode*of payment, were subordinate and directory —the *time*of payment was postponed obviously only for the , convenience of the remainderman; and the *mode*may have been so expressed merely to remove doubt. The interest became vested in Thomas Heyward, on the death of the testator, and transmissible; and the subsequent words were probably used as words of limitation, and were not intended to impair, or defeat, that vested interest. Judge Heyward had authority, therefore, to execute the instrument of 25th June, 1802; and the release of his executrix of 30th October, 1823, was a valid discharge to the defendant’s testator, “ of all claim for and on account of the will of James Heyward, and the legacy therein contained.”

It is ordered and decreed that the bill be dismissed.

Erom this decree the Complainants appealed on the ground:

That the legacy to Judge Heyward was a substitutional gift to him or his heirs, at the decease of Mrs. Baring, and not a positive gift to him.

The cause having been argued at the January Term, 1854, *303before Johnston, Dunkin and Wardlaw, Chancellors, (Dargan, Ch., absent); was reargued at the present term, (Jan. 16, 17, 18, 1855,) before all the Chancellors.

*Petigrew,*for appellants.

*JWayne,*contra. The hesitation of the court must proceed, not upon any doubt as to natural equity, or of actual intent of testator, but from weight of authority.

Authorities introduced to establish *three*points:

1st. Effect must, if possible, be given to every word [granted.]

2d. That *ex vi termini,*the words “ or heirs” imply a substi-tional gift — that is, that the legacy is given either to Judge Heyward *or*his heirs, as he may or may not be alive at the death of the life-tenant.

3d. That Judge Heyward dying before the time fixed for payment, a prior payment to him is no discharge to Mr. N. Heyward.

Examine two last positions;

1 *Jarman on wills,*453, (in introducing the cases of *Davenport*vs. *Sanbury,*3 Yes. 257, words “ or her *issueMontague*vs. *Micella,*1 Russ. 165, words “ or their respective child or children;” *Grittings*vs. *McDermott,*2 Myl. & Keene, words “ or to their heirs;”) states as the result of these cases that the “ *tendency*is to, consider the word “ *or”*“ as introducing a substituted gift, in the *event of the first*legatee dying in testator’s life-time;” and he adds, “ in other words as inserted in prospect of and with a view to prevent a lapse.” Now, observe, 1st. Mr. Jarman does not consider “ or” as *ex vi termini*implying substitution. 2d, The “ tendency” spoken of is confined to cases referring the substitution to the period of the *death*of the *“ testator.”*3d, The “ reason” assigned is the prevention of a lapse. *This*class of cases, therefore, is not conclusive. In *Gfittings*vs. *McDermott,*Lord Brougham says, *“*I am not aware that it has ever been judicially determined, that *304legacies ‘to A. & B. or to tbeir heirs,’ are to be read ‘to A. & B., and if either predecease, then to his heirs,’ so as” (adds his Lordship) “ to prevent a lapse,” yet he thinks “ there is no doubt,” &c.

When Mr. Jarman, (1 Jarman, 454,) refers to cases in which the word “ or” applies to a bequest, the enjoyment not to begin at testator’s death, he introduces, in parenthesis, (“ admitting it,” (the word “ *or,”)*“ to be introductory of a substituted gift,”) implying, of course, that it is not *always*to be so understood.

Again, 2 Jarman, *666,*he says, speaking of the effect of the expression, ‘in the event of the death,’ “that in those cases in “ which the word ‘ or’ has been construed as introductory to a “ substitutional bequest, (in which case it seems to be tanta- “ mount to the words, ‘ in case of the death,’ ”) &c., implying, as before, that it is not *always*to be so construed.

The cases turn not upon the *necessary*effect of the word “or,” but on its meaning to be gathered from the context, and a fair consideration of the whole will. *Qorbyn*vs. *French.*

One ground for so construing the word “ or,” in some of the cases, is, as Lord Brougham and Mr. Jarman, followed *by*the Chancellor in this case, express it, *“to prevent a lapse,”*which certainly does not apply here.

Another, is that urged on this occasion, that “ *effect must be given to all the words,”*that is, as I apprehend, that the court must suppose the testator to have an intention in the use of each word, and if you cannot reasonably attribute any other intent you are driven to construe the words as intended to create a substitution. In most cases in which the devise or bequest is direct to “ A, or his heirs,” you are driven to this construction, because no reasonable motive for the use of the disjunctive word “or,” instead of the usual copulative “and,” can be assigned. But the case is different where an estate is given with a condition to pay annexed — where a charge is created, and the estate taken *cum onere.*There the *disjunctive*conjunction is usual and natural, and suggests an intent similar *305to that implied by the conjunctive conjunction in a direct devise.

In sucb a case the words which *“*or” introduces must be looked to — the context and the scheme of the will. If the words introduced by the use of “ or,” cannot be otherwise explained than by supposing them intended *substitutionally,*such construction is resorted to, not *ex vi termini,*but to satisfy the supposed intent. *Salisbury*vs. *Petty*is such a case.

That case is peculiar. It is a devise" to A. for life, subject to a charge in favor of B. C. & D., “ *or to their respective lawful issue,” to be paid*twelve months after death of testator, and after death of A. devise to A.’s children, as he should appoint by will, subject again to an additional charge in favor of B., C. & D., “ *or to their respective lawful issue.”*Now no rational intent can be suggested for the use of these words, unless we suppose them used substitutionally. The fact that it is in form a charge, or a condition imposed, does not satisfactorily account for the use of the expression, “ *lawful issue.”*Suppose the *same words*used *in a direct bequest,*they would look to something *more*than the quality, and quantity of the interest of B. C. & D. Testator would, in such case, show a disposition to benefit some *other persons besides*B. C. & D. In the case at bar, the word “ *heirs”*after “ *and”*in a direct devise, would imply no more than a disposition to give all to Judge Hey-ward, and would look to him as the sole beneficiary, and “ *or,”*preceding the word “ heirs,” instead of “ and,” is accounted for by the/om of the bequest, arising as it does from an obligation to pay on the part of the devisee.

*Salisbury*vs. *Petty,*therefore, is not conclusive. *Wo other intent*is attributable there in the use of the words *“*or to their respective lawful issue.” Here, “ or heirs” shows the same intent as the use of the words “ and heirs,” in the direct devise to Nathaniel Heyward. In neither the direct devise, or the present case, are they necessary, and in either the gift is absolute without. In both meant to make the intent plainer.

*306In *Salisbury*vs. *Petty,*testator’s mind is evidently dwelling on contingencies, and be is attempting to provide according to the happening of such events in the future, which he manifestly thinks may be either one way or the other. The scheme of the will makes substitution a probable intention. James Heyward does not contemplate contingencies or alterations, but looks to events in the future that are certain; to wit, the certain death of his wife — the certain vesting of the estate after her death, in N. H., his brother, and to a certain provision for the other brother.

If the present case is not concluded by the force of the authorities cited by the complainant, let us consider it upon its own circumstances, and ascertain—

1st, The testator’s real *intent.*

2d, Whether any rule of law forbids that this court should allow that intent to prevail.

3d, Whether in any view of the nature and character of the interest intended to be given to the “ heirs” of Thomas Hey-ward, Nathaniel Heyward has not performed the conditions imposed on him by the will, and whether his estate is not thereby discharged ?

There are apparent three objects of testator’s bounty; all *in esse;*all recommended by the relation in which they stood, and, though in different degrees, all anxiously considered in the disposition of his property: *First,*his wife. *Second,*his brother Nathaniel. *Third,*his brother Thomas. To the *first*he devises and bequeaths everything *for life.*To the *second*everything, absolutely, — the enjoyment, however, postponed until the death of the first. To the *third,*a legacy of £5,000, charged on the estate of the second, to be enjoyed as soon as convenient after the second shall come to the enjoyment. As to the *first*object the idea of “ *heirs"*is excluded. As to the *second*the devise is “ to his heirs, executors, administrators *and*assigns for ever. To the *third,*the legacy being in form a charge on the devise to Nathaniel Heyward, the terms are that *307said Nathahiel Heyward shall “ pay to Thomas Heyward *or*his heirs,” &c. Can any one doubt that the brother Thomas was in regard to the ¿£5000 as much the object of testator’s affection as Nathaniel, in regard to the residue of the estate ? Was it not as much the testator’s intention to benefit *Thomas*to the extent of ¿£5000, as to benefit *Nathaniel*by the residue ? To Nathaniel Heyward the residue being given *direct,*it is to him “ *and*his heirs,” &c. To Thomas Heyward the benefit coming in the way of a charge, the expression from necessity is changed to the disjunctive, it is to be paid him “ OR his heirs.”

For the convenience of the first object, the enjoyment of Nathaniel Heyward is postponed until the widow’s death. For the convenience of the second object, the enjoyment of Thomas Heyward is postponed until one and two years after he shall come into possession.

All this is simple, natural, intelligible. No such absurdity ensues as leaving a *brother*to starve, for the benefit of unknown and unborn nephews and neices, or grand nephews or grand neices.

Now is there any rule of law in regard to the disposition of estates, or the construction of wills to interfere with this clear intent.

On the contrary, a legal analysis of the will confirms the view presented.

The benefit intended for Nathaniel Heyward, and that for Thomas Heyward, are both contained in the *one direct devise*to Nathaniel Heyward. To the latter is “ given, devised and bequeathed” all the estate from and after the decease of the wife, “provided always,” &c., then comes *a condition*upon which he is to hold, and in terms *a charge*on the estate received and as an incident to the performance of this condition, as the result of this charge, the benefit to Thomas Heyward arises.

It is by imposing an obligation on Nathaniel Heyward that the testator undertakes to secure the benefit to Thomas Hey-*308ward. Surely then the *primary*enquiry is — what is the obligation imposed on Nathaniel Heyward? It is by ascertaining *this*that we arrive at the rights of Thomas Heyward. This clause then is to be construed not in analogy to direct devises to an individual, but by analogy to cases of estates taken *cum onere.*The burthen is that Nathaniel Heyward should pay “ Thomas Heyward or his heirs,” within two years after the death of life tenant. Is not a payment *ante diem*a discharge ?

Suppose a bond payable to A. or his executors, &c., in ten years. A. dies in five years, but *has received the amount,*could executor of A. claim payment at the end of ten years, because he alone *at that time*was entitled ?

It is not denied that the ¿65000 is a legacy, but it is not a direct bequest to Thomas Heyward.

As has been said, it is an interest growing out of an obligation imposed on the devisee Nathaniel Heyward, and the nature and character of the “interest ” is determined by considering the nature and character of the “obligation.” If Nathaniel Heyward had a right to discharge himself by anticipating payment to Thomas Heyward. Thomas Heyward had a right to receive.

This view renders the whole will consistent and harmonious.

The widow takes a *vested*life interest to be enjoyed *instanter.*

The first brother a *vested*remainder *cum onere.*

The second brother a *vested*legacy of ¿65000 payable in one and two years after the enjoyment of the remainder accrues.

The decree is conclusive that without the three monosyllables “ or his heirs,” Thomas Heyward took a *vested, transmissible*interest to be enjoyed *in futuro.*The “ thin and shadowy distinction,” as it was termed by the learned counsel for complainants, at the hearing, “ that a direction to pay *in futuro,*if the payment appear to be postponed for the convenience of the fund or property and has no reference to con*309dition of tbe legatee, will not defer tbe vesting till tbe period in question,” is recognized in tbe decree, and sustained by overwhelming authority.

Tbe language of Lord Hardwicke in tbe case of *Hodgson*vs. *Hawson,*1 Yes. 44, applies directly to the case at bar. “ Tbe legacy,” &c., cited in the Chancellor's decree.

Tbe burthen is on complainants to show that “ or his heirs ” has thb effect of divesting the vested interest of Thomas Hey-ward. An effect rendering the will incongruous and unnatural. This interpretation gives to the word “ or ” which was used *because*o,f the peculiar *form*of the bequest a meaning drawn from the analogy of cases in which no such reason existed.

“ Or,” as has been shown, is not *necessarily*a word of substitution. Whether it is to be so construed depends on the character of the whole will.

The words “or his heirs” were intended to *express in terms*that Nathaniel Heyward was not to be discharged even though Thomas Heyward died before the period of payment. To make it explicit that Thomas Heyward’s claim in such case would survive him, they impose on the devisee by “ express terms of the devise,” what “ by law ” would have been his obligation if they had not been used. The attempt of complainants is to prevent what really was intended to make the object *more sure,*into the means of defeating the object altogether'. Is there here that “ clear intention ” which is to *divest*the vested interest of a brother surviving the testator, by substituting a class of persons so indefinite as “ next of kin ” not yet in esse.

But the points already discussed are only introductory to the 3d point, which presents the precise issue in this case.

Are the executors of Nathaniel Heyward bound to pay again to the “ heirs ” of Thomas Heyward the legacy *already paid*to Thomas Heyward *in his life time,*and doubly paid to his *executrix*and *sole legatee,*after his decease ?

It has been taken for granted that the heirs of Thomas *310Heyward have, as against Nathaniel Heyward, the same rights they would have had if no payment at all had been made of the amount, with which the estate received from James Hey-ward, stood charged. The authorities cited certainly do not cover this ground. Admit that if the legacy had not been paid at the death of Mrs. Baring, the next of kin of Thomas Heyward might have claimed as entitled to it, not through Thomas Heyward but by substitution, *non constat*that having been already paid to Thomas Heyward they still may claim by substitution.

Has Nathaniel Heyward discharged the estate in his hands? He has, *as*required, paid ¿65000 to Thomas • Hey ward, not *at the*day, however, but *ante diem.*

Would it not have been competent for the testator to have directed that Nathaniel Heyward should pay to the heirs of Thomas Heyward ¿65000 provided he had not already paid that amount to Thomas Heyward in his life time, but that such payment should be a discharge. I consider the condition imposed here, in effect the same.

Thomas Heyward’s interest is admitted to be *vested,*and incapable of being *divested*as long as he lived. If the postponement of the payment on account of the convenience of Nathaniel Heyward was *waived*by *him,*and he allowed Thomas Heyward to anticipate the time of enjoyment of his vested interest; he had a right to do so. He simply waived *his own*privilege.— If the legacy in the hands of Thomas Heyward was defeated *his*estate was responsible to those substituted in the place of his executor or administrator. Thomas Heyward stood in the attitude of a life tenant responsible to the remainderman, or of one to whom in due course of administration, a legacy subject to be defeated by a furture contingency, has been delivered.

See *Pawlces*vs. *Gray,*18 Yes. 131.

*Griffiths*vs. *Smith,*1 Yes. 97.

2 Williams on Executors, 1192, 1196, 1217.

*Price*vs. *Lochley*does not meet this case. There the legacy *311had *not leen paid.*The party against •whom the claim was made- had done nothing to discharge himself. Analogy to *Price*and *Lochley*would be nearer if the claim were made against the executrix of Thomas Heyward. Question in *Price*vs. *Lochley*between the “ issue ” and one who represented the primary legatee, who was still unpaid. Suppose a bond to make titles on a given day to A., or, in case of his death, to the eldest son of A., would not titles made *before the day*to A. discharge the bond ? And this, although, if not made *before the day,*the son of A. would be substituted in case of his father’s death prior to that time, and his claim would defeat the other heirs.

*Memminger,*same side.

*Petigru,*in reply.

The opinion of the Court was delivered by

Johnston, Ch.

James Heyward, by his last will, bearing date the 10th of May, 1796, devised and bequeathed, (in the event which happened, that at the time of his decease he should leave no lawful issue,) his whole estate, as follows:

*“*If I die without lawful issue, I give, devise and bequeath all my estate, real and personal, whatsoever and wheresoever, unto my beloved wife, Susan HeywaRD ; to have and to hold the same, and every part and parcel thereof, and all the rents, issues and profits thereof, unto the said Susan Heyward, for and during, and until the end and term of her natural life,— free of waste and charges of waste, whatsoever. And from and after the decease of my said wife, I give, devise and bequeath all my said estate, real and personal, unto my brother, Nathaniel HeywaRD ; to have and to hold the same, and every part and parcel thereof, unto the said Nathaniel, his heirs, executors, administrators, and assigns, forever: *Provided,*always, nevertheless, that my said brother, Nathaniel Heyward, shall, and do; faithfully and punctually pay unto my brother, *312Thomas HeywaRD, *or his heirs,*the full and just sum of five thousand pounds, lawful money of the State of South Carolina, —one moiety thereof to he so paid at the expiration of *one year from and after the decease of my said*wife, *Susan Hey-ward,*— and the other moiety thereof to be paid at the expiration of *two years from and after her decease:*— And with the payment of the said sum of five thousand pounds, *in manner aforesaid,*I hereby charge and make liable all my estate, real and personal, *from and after the decease of my said wife.”** * ******** “ And I do hereby make and appoint my said -wife, Susan Heyward, the sole executrix of this, my last will and testament.”

During the life of Mrs. Susan Heyward, (afterwards the wife of Charles Baring,) Thomas Heyward gave to his brother Nathaniel, the following instrument, viz.:

*“Memorandum.*— 25th June, 1802. Whereas, my brother, *Nathaniel Heyward,*has met the decree obtained by William Brailsford against me, and fully satisfied the same, amounting to four thousand one hundred and sixty-one pounds, twelve shillings and two-pence — in consideration thereof, I promise to pay to my said'brother, out of the legacy of five thousand pounds given to me by my brother James, — whenever the same shall become due, — the aforesaid sum of four thousand one hundred and sixty-one pounds twelve shillings and two-pence, with interest from 8th October, 1801. And, if the *interest*should exceed the amount of the legacy, when it becomes due, then the deficiency to be made good out of any part of my estate.” (Signed) “Thomas Heyward.”

Thomas Heyward died in 1809, during the life of *Susan Heyward,*(afterwards Mrs. Baring,) the widow of the testator James. Mrs. Baring survived until 1845.

At his death, Thomas Heyward left the following family:

1. Elizabeth, his widow, to whom he willed his whole estate.

2. Elizabeth Matthews Heyward, (now Mrs. Hamilton,) a daughter of his oldest and pre-deceased son Daniel.

*3133. Thomas Heyward, a son: afterwards he died intestate, and his son, T. S. Heyward, is his administrator.

4. James Heyward, a son. He died afterwards intestate, and his wife, Decima, is his administratrix.

5. Eliza Heyward, a daughter, (now Mrs. Parker).

In 1823, Elizabeth, the widow of Thomas Heyward, Sen., who was his executrix, and to whom he devised his whole estate, (charged by the *memorandum*of 1802,) came to an arrangement with Nathaniel Heyward, by which the legacy of five thousand pounds was set off against the sum which Nathaniel had advanced for his brother, with interest on the latter, and she gave him bond, secured by mortgage, for one-half the excess still due to Nathaniel, he remitting the other half.

In 1845, Mrs. Baring, the widow of the testator, James Hey-ward, died; by which her life tenure in his estate, under his will, determined; and the remainder accrued in possession to Nathaniel Heyward.

Nathaniel died in 1851; and the present bill was filed in 1852, against his executors, by Mrs. Hamilton in her own right, and by the administratrix of James, Jun., as *heirs*of Thomas Heyward, Sen., claiming payment of shares of the legacy of five thousand pounds.

The question is, whether the direction given, that the five thousand pounds he paid “to Thomas Heyward *or his heirs,”*created alternative interests between these parties, so that the *heirs*became substitutes, in place of Thomas, from the time of his death.

In the argument in support of the decree, it has been assumed throughout, that there was a fixed intention, on the part of the testator, to give the largest interests to his two brothers, of which the property bequeathed to them, respectively, was capable. That as the remainder given to Nathaniel was given absolutely, so it was testator’s intention that Thomas should have an absolute and unqualified right to the legacy of five thousand pounds.

*314But this is to beg the very question before us. If this assumption he admitted, there is an end of this case.

There is an observation of Lord Hardwicke, in one of his judgments,(a) very pertinent to this point. “ It has been said,” he remarks, “ that if the testator had been asked, at the time of making his will, whether, in such an event as has happened, he would’ have the one thousand pound legacy raised for the plaintiff, he certainly would have answered, that he would not. But such a manner of arguing, by asking a question of this sort, is a very uncertain one. Those that make the question answer it themselves: and give such an answer as seems for their purpose.”

The true rule is stated by Sir Jno. Leach in another case.(b) “ What the intention of the testator was, must be looked for in the *words of the will.*Nothing more can be supposed to be intended than what he has *expressed.*The expression *may*be, often, at variance with the real intention; and it may be so here; but a Court must decide on the expressed intention.”

The observation has been correctly made, “ that the statute by requiring a will to be in writing, precludes a Court of Law from ascribing to a testator any intention which his will does not express; and, in effect, makes the writing the only legitimate evidence of the testator’s intention. No will is within the statute but that which is in writing: — which is as much as to say, that all that is effectual, and to the purpose, must be in writing, without the aid of words not written.”(c)

“How can it be said that the will is in writing, if it be inoperative, unless the *intention*of the testator be proved aliunde V’(d)

And if you are not permitted to *prove*an intention extrinsic to the will, how are you at liberty to *assume*it without proof?

*315But in all doubtful cases the construction is to be made from tbe -whole instrument, — text and context.

The context is to be consulted upon the principle, so familiar to courts, that the words and acts of parties have a tacit reference to the circumstances under which they are uttered or performed: and that these circumstances, so far as they may serve to give construction to them, may, and should, be, appealed to for that purpose.(e) Thus if a gentleman writing simultaneously to his overseer, and to his agent for transactions in bant, should, in the same words, direct them, respectively, *to sell Ms stoejc;*the words, though identical, must mean very different things; in the former case referring to live stock, and in the latter to shares, stocks, or securities. The same principle is familiar in criminal courts. What is it that shows an act of homicide to be murder in one case, manslaughter in another, or excusable or justifiable in another, but the circumstances under which the act was done ? The principle is universal.

And so of the context of a writing. The context is a reference to, or description of, the surrounding circumstances by the writer himself; and maybe looked to for the purpose of clearing up obscurities in any particular passage.

Let us, therefore, resort to the context of this will to see whether there was in the testator’s mind that degree of benevolence towards his brother, Thomas, which has been assumed.

Look to the terms in which.he bestows upon his brother, Nathaniel, the remainder upon which this legacy is charged. It is given “to Nathaniel, *and*to his heirs, executors, administrators and assigns, forever.” This shows that where the testator intended to give in the amplest and most absolute manner, he knew how to accomplish his purpose. *Reddendo, singula singulis,*the real estate is given to him and his heirs forever, in fee: while the personal is bequeathed to him, his personal representatives and assigns: an absolute, vested, transmissible, *316assignable interest. If his purpose was to give an absolute interest in the legacy to Thomas, why did he make so sudden and marked a change in the terms of donation ? Why did he not give it to *him,*(as he had given to Nathaniel,) his exr ecutors, administrators and assigns ? Why the change to him *or*his *heirs ?*

Thus the context of the will, so far from sustaining the conjecture of the defendants as to the extent of the bounty intended for Thomas, rather tends to a different conclusion. The least that can be said is, that it does not disturb, or deflect, the import of the words of the text.

Then we are to inquire what is the natural and legal effect of a direction that Nathaniel pay two thousand five hundred pounds one year from the expiration of the life estate, and two thousand five hundred pounds more, two years from its expiration, “ unto my brother, Thomas Heyward, *or*his heirs.”

The usual and natural construction of the word *or*is disjunctive (f): and we are to construe the words of every testator in their ordinary and natural sense, unless there is something in the context to impose a different meaning on them, ox*, unless there is something in the nature of the interest created, taken in connection with the operation of the other parts of the will, which would defeat the clear legal intention, were the usual interpretation given.

It is not necessai’y here to examine the precedents, where a conjunctive, and not a disjunctive, construction has been given to this word: because, as we have seen, there is nothing in the context requiring such construction.

It must, therefore, be left to its ordinary signification; which is entirely disjunctive.

It is impossible for an ordinary reader to peruse the words of this will, relating to the legacy of five thousand pounds, without the impression that there was an alternative in the *317testator’s mind as to who should receive it — Thomas, *or*his heirs. His words show it.

Now every word in a will must he presumed to have been used with some intention, unless the context or the rules of law render it necessary to regard it as surplusage (g); and if it can be done without violating legal rules or principles, effect should be given to every word in the sense in which it was intended.

There is nothing illegal in a man’s directing payment of a legacy to another *and*his heirs: hut the law will, in such case, give him the sole benefit.

Nor, on the other hand, is there anything illegal in a direction that a legacy be paid, at a particular time, to one — or to his heirs, as substitutes, in case he be then dead.

If this is the meaning and legal construction of James Hey-ward’s will, full effect should be given to it.

And here I assume, once for all, that the word heirs, when applied as in the present instance, to personalty — a subject not inheritable — was meant to designate those persons pointed out by the statute to succeed to Thomas’s estate. (See statute of 1791, which gives the same distribution to intestate estates, personal and real.)

The word *heirs*thus applied, by way of description, is as effectual a designation of persons to take by purchase, as issue, *heirs of the body, heirs lawfully*begotten, or any other form of description. The only difference between *issue*and *heirs*in such a connexion is that under the former all lineal descendants take; while the word *heirs*may exclude some of the lineal descendants, and include persons who are not lineal descendants. The difference between *heirs*(generally) *and heirs of the body*or *lawfully*begotten, is that *heirs*includes all dis-tributees, while the other terms are not only confined to issue, but to such issue as fall within the table of the statute. And *318•wherever heirs, or special heirs, are mentioned creating a reference to the statute, the statute exhibits the extent of their interests *(h)**.*

If the direction had been to pay to Thomas, *or, in ease of Ms*death, to his heirs, there are many precedents to show that the *heirs*would have taken by substitution. But as heirship can only be predicated of persons left by an ancestor to succeed to his *property;*in other words to take *in case of his death-,*these words (unless the context is to the] contrary) are always implied in all gifts made to persons designated as heirs *(i)**.*

Then we may read this will as if the words were that, at the time specified, the legacy of five thousand pounds should be paid to Thomas Heyward, or, *in case of his death,*to his heirs, *i. e.,*to those persons left at his death to succeed to his estate. These words, it will not be disputed, would have given a sub-stitutional interest. In such a text the word “ *or”*would have been emphatically disjunctive.

The case of *Corbyn*vs. *French*(j), mentioned in the decree, and much relied on here by the defendants, is not inconsistent with the view I am taking, but in some respects tends to confirm it.

The testator in that case, after directing a sale of a portion of his estate, disposes of part of the proceeds as follows:

“ And I further give and bequeath to my aforesaid niece, Elizabeth Cooper, the sum of two thousand pounds, (or to her proper representative, in case she should not be living at the decease of my wife.) I also give to each of the children of my sister, Elizabeth [Barker] — viz: *John,*Dorothy, William and Christopher (Barker), *or*their representatives or representative, the sum of two thousand pounds. The remainder I direct to *319be equally divided between Josiah Messa, aforesaid, and *John*(Oorbyn), the son of my very worthy and much respected friend and partner, Thomas Oorbyn, share and share alike.”

John Barker died during the testator’s life, leaving a widow and children. Christopher Barker survived the testator, but died during the life of his widow.

The bill was filed by John Oorbyn, as residuary legatee, for an account of the personal estate of the testator, and, among other things, to have the legacies of John and Christopher Barker, declared to have lapsed, and fallen into the residue.

The Master of the Bolls stated the question before him thus: — “ One of these children (John Barker) died in the life of the testator. Another (Christopher Barker) survived the testator, but died in the life of his widow. The question is, whether they (their legacies) ai e vested and *transmissible to their representatives.”*

“ As to the legacy to *John,*I think the question can hardly be raised upon this will. For, see the preceding legacy ■ to *Elizabeth Cooper.*Would not *that*have *lapsed,*if *Elizabeth Cooper*had died in the life of the testator ? Beyond all question it would. It is nothing more than saying it shall go to her representatives if she dies before his wife.” He proceeds to argue that the interests given under the will, being intended only as beneficial interests to the legatees, must vest in the legatees before they would become transmissible; and remarks that, “ The rules upon which the Court proceeds are perfectly established: — a testator is never to be supposed to mean to give to *any but those who shall survive him,*unless the intention is perfectly clear.” * * * “ It is perfectly clear, that when the fund is given to one for life, and after the death of that person, to several others, and in case of their deaths to their *representatives,*there is no reason to presume an intention that it shall not *lapse*by the death of the legatee in the life of the testator. It is ^impossible, without transgressing every *320rule as to vesting, to hold that *this*legacy vested — the legatee not having lived to take the benefit under the testator’s will.”

It is manifest that the Judge in this case was determining the question upon the point of lapse alone. The legacy being given to John, lapsed by his death in the testator’s life, and the lapse was not saved by the extension (had there been words to that effect) of his interest to his personal *representa*tive, or executor, — the interest to John or his executor being identical. But his Lordship argues that the words “ or to their representatives” did not refer to a time antecedent to the testator’s death — on the contrary they referred to the period of the life estate, and although unnecessary in that connexion, were thrown in to put the legacies when veste*d*out of doubt.”

“ I am very clearly of opinion,” says he, *“*the legacy to *Christopher*is good.” Christopher, it will be remembered, survived the testator, and became capable of taking the interest conferred on him.

“ This is *stronger*than the common case of a legacy to A. and his representatives. There those words are surplusage: for if the testator dies before the day of payment, it would go to his *representatives.*But in this case there is a reason for inserting them. This is not an immediate legacy — but after the death of another person. There is, therefore, an interval in which the legatee might die; and though it vested, *he*might not live to receive it. That addition might be inserted *to put it out of doubf,*and must mean, in case they die *in the life of the testator's wife.*I desire to be understood to determine it upon *that circumstance*— that *there is a life*intervening.”,

It is to be observed that the real question in this case was lapse or no lapse: to be determined by the consideration, in the first place, whether the legatee ever took a personal interest by surviving the testator: and if he did not, then, whether the superadded words, relating to his *representatives*(taking the word in its legal sense) were intended to save the lapse by referring to a time anterior to the testator’s death.

*321And it is remarkable, also, that the word in that case was *representatives*and not *heirs ;*and is so considered throughout the judgment.

The difference is quite material. It is not determined in that case that if the legacy had been to Christopher or his heirs, these- words would not have been construed to create alternative interests, between him and them, as there was an interval in which he might die, and “ not live to receive it,” there being “a life intervening.” In such case, the Court might have regarded the words “ or his heirs” to have been inserted for a more substantial purpose than “ to put it out of doubt.”

It is familiar that such words are interpreted disjunctively, and for the purpose of creating a substitution, to prevent lapse, when the legatee, named in the will, dies in the testator’s life: as in *Gettings*v. McDermott,(k) one of the cases mentioned in the decree.

But it seems hardly possible to give such a construction to *Price*v. *Lockley,**(l)***another of the cases cited in the decree. That is a case much in favor of the plaintiffs in the present cause.

The testator by his will, after certain legacies, directed that his monies and choses should be collected and vested in public funds for the use and behoof of his wife and two children, Eliza and Joseph, during the wife’s life, or widowhood, “and at the decease of my said wife, I give and bequeath the same to my said (4) children, — the survivor, or survivors of them, equally, share and share *alike,*— or to their *heirs*lawfully begotten.”

The residue of the estate was also given to testator’s wife, during her life or widowhood: “and after her decease, or second marriage, I will and direct that the same be disposed of *322by sale, and the money equally divided among my said (4) children, or the survivor of them, or thei'r *heirs*as aforesaid.”

Testator died in 1805. Joseph survived him and assigned his share to one James, but died during the widow’s life, — he having died in 1837 and she in 1841.

The contest Vías between James, the assignee of Joseph, and five children left by Joseph at his death.

It was contended for James, the assignee, that Joseph, on surviving the testator took a vested interest, in One-fourth of the residue : and that it passed under his assignment.

For the children it was insisted, that if testator’s four children survived the *tenant for*life, they would have taken absolutely between them: and that on the death of any of the four, in the life of the widow, (meaning without issue) the survivor would have taken; but, if they left children, such children would take the share of the parent by substitution, —wherefore, Joseph had no interest to pass by assignment.

The case seems to have been regarded as very plain *:*— “ the master of the Rolls” (Lord Langdale) “ was of opinion that in the event which had happened,” (which I have just state*d) the children of Joseph took*one fourth” (Joseph’s share) *“ by substitution.”*

This case appears conclusively to establish that the word *“or”*has an effect much beyond that of merely saving a lapse.

When it is effectual to save a lapse, it accomplishes that purpose only by *creating substitutional interests.*This is permitted to carry out the intention of the testator. But as lapses are in such cases saved only by substitutional words, why should the operation of such words, when intended to create substitution, be confined to cases of lapse ? and not applied in every other case and for every other purpose which the intention requires ?

It has been observed that the words of description in this case of *Price*v. *Lockley*are *heirs lawfully begotten*and not heirs as in this ease.

*323I trust I have sufficiently explained, heretofore, that that does not affect the application of the principle of that case to the one before us.

Then see the case of *Girdlestone*v. Doe.(m) Thomas Doe bequeathed to Mary Tattersall, the yearly sum of forty pounds, to be paid from interest and dividends of stock in the long annuities, during her life:-and after her death, he bequeathed the same to his nephew, James Holman, “or his heirs.” After testator’s death, and in the life time of Tattersall, Holman sold and assigned his annuity of forty pounds to Grirdlestone, and then died during the life of Tattersall. On the death of Tat-tersall, Grirdlestone filed his bill against the surviving executrix of Doe, to enforce his assignment. Demurrer to the bill.

Argued for plaintiff that the word “ *or”*must have a conjunctive interpretation.

*Vice*Chancellor:-“It appears to me that “or” must be construed disjunctively here as the context requires it: and that the testator contemplated that his nephew might not be alive at the death of Mary Tattersall: and, therefore, I think that the nephew did not take an absolute interest in the annuity.”

• The only observation necessary to be made on this case, is that it is very obscure what the Judge could have meant by “ as the context requires it.” We have not the context in the report. But it is plain that the word “or” is disjunctive, unless there is a context to the contrary. And then this case is clear, that when the word is to be disjunctively interpreted, it creates alternative interests in just such a case as the one before this Court.

Then examine the case of *Salisbury*v. *Petty.**(p)***Assuming here, again, as heretofore, what no lawyer doubts, that a gift to *heirs*is as good a designation as a gift to issue, though the *324destination of the gift is different: — then I think that the present case is decided by *Salisbury*v. *Petty.*

The testator in that case, John Park, by will dated, 1819, devised to his brother James all his real estate, for life, subject to the payment of two thousand pounds a piece to his nephews and niece, John, Thomas and Mary Park, twelve months from testator’s death, “ or” to their repective lawful issue.

On the death of James, testator devised the estate in remainder to James’s issue, or such of them as he might appoint; increasing the legacies of John, Thomas and Mary, on that event, to five thousand pounds each, “ *or*to their respective lawful issue.”

Failing issue of James at his death, he then devises the estate to the nephew, John Park, increasing the charge to seven thousand pounds for Thomas and Mary, each.

John dying, without issue, the estate is then given to Thomas, charged with six thousand pounds to Mary, *“or*her issue.”

Failing Thomas and his issue, the' estate is finally given over, in fee, to Mary.

James, the brother, and John, Thomas and Mary, the nephews and niece, all survived the testator.

John died in 1884, without issue.

Mary died in 1839, leaving six children.

Thomas died in 1839, leaving four children.

James, the brother, died last of all, in 1841, leaving issue.

The construction of the Vice-Chancellor, Sir James Wigram, after an elaborate investigation, was, that “ as to the gift of the first two thousand pounds, the issue” (of the three) “ are to take in case of the death of the legatees, John, Thomas and Mary, in the life of the testator(so much for preventing a lapse.) “ And in the other cases, it is, in the event of the death of the parties, during the life of the tenant for life, the children are to take. The children who survived the tenant for life, take as joint tenants, *in substitution*for the parents who died in his lifetime.”

*325It may be observed, in passing, that tbe Judge in commenting on tbe word “ or,” says, I interpose the "words, “ in case of death,” for that must be tbe meaning of tbe word *“*or.”

Here, then, we have a complete adjudication of every point that has arisen, or could have arisen in the present case. How closely it resembles tbe present! A devise, constituting a life estate, — successive remainders, — those remainders charged with legacies, the legacies in favor of named individuals, “ or their issue,” death of some with, and others without issue, in life of life-tenant. How much more could be required to make the judgment in that case bear on this ?

Now, of the cases mentioned by me, *Price*vs. *Lockley,*and *Salisbury*vs. *Petty,*were decided, the one in 1845 and the other in 1843.

In the year last mentioned, was decided our own case of *Anderson*vs. Smoot,(z) to the same effect. The will in that case gave to the testator’s wife the one-fourth of his personal, estate for life; at her death to be “ equally divided among my surviving children, *or*the heirs of their bodies, share and share alike.”

In that case the contest, which related to slaves, was between certain of the children of testator who survived the life tenant, and the issue of the other of his children who died during the life-tenancy. And it was held that the will intended to provide for such of the'children as survived, and the issue of those who died. I refer to the judgment for the reasons of that opinion, and for the construction of the word “ or.”

What more authority is wanting ?

There were some observations at the hearing here made upon the form of this legacy. It was presented as a condition personal to Nathaniel, to whom the estate was devised in remainder ; and, then, the attributes of such a condition, under the English law, as to entry of the heir for breach, &c., were *326ingeniously insisted on. But these doctrines are entirely inapplicable to our laws and institutions.

Then, it was argued that Thomas Heyward had a vested interest at the time he received payment from his brother Nathaniel, and so Nathaniel was discharged of his obligation.

It is not very clear to my own mind, (and I speak here only for myself,) that the interest of Thomas was vested, at least it was not vested for the purposes of this argument.

If we look to the words of the testator, there is no expression of a direct legacy. But if the testator had given to Thomas five thousand pounds at one and two years from the expiration of the life estate, without more, it would be difficult to discover in such a legacy a present vested interest. And when to this is added the fact, that the donation is only to him *or*his heirs, alternately, at that time, and that the charge upon the estate for securing it, is only from and after the accrual of the remainder, it would be difficult to infer a present vested right in Thomas. The mere fact that it was rendered, by the terms of the donation, dubious and uncertain who was to receive the money, when payable, gives an air of contingency to the whole legacy. Does this look like a vested, transmissible interest in Thomas ?

But again. Thomas did not, as I read his memorandum, receive *payment.*The instrument creates a mere debt against him for the amount advanced by Nathaniel, with a covenant to set it off against the legacy when due, and an engagement to pay any difference still owing. This is not payment, (I speak still for myself,) it was an advancement by Nathaniel on a contingent security.

But admitting everything contended for, except the discharge of Nathaniel; conceding that Nathaniel did *pay*the legacy in full to Thomas, — what does the argument avail ? If Thomas had a right to receive and discharge, he must have had as good a right to sell and *assign.*But the cases I have quoted, in which the contest was between the assignee of the legatee named and *327his heirs, show, conclusively, that where the heirs have an alternative right, which comes into operation, no such assignment can be allowed to their disappointment.

It remains only to inquire what persons come under the description of heirs of Thomas Heyward.

We have determined in several *cases,**(v)***that under this description, all who are entitled to take under the statutes of distribution, and only such, are entitled: and that these are to he ascertained at the death of the party whose heirs they are.

There are only two of these before us under this bill. The others have made no claim. 'It is clear that of these two, Mrs. Hamilton is entitled. As to the other, the Court would prefer that further inquiry be made.

It is therefore ordered that the decree dismissing the bill be reversed; and that the case be remanded to the Circuit Court for the purpose of inquiring, through the Commissioner, who were the heirs of Thomas Heyward, at his death, and what proportions of the legacy of five thousand pounds each of the plaintiffs was entitled to, according to this opinion, with interest, and which of them have received satisfaction of their interests, or to what extent; and what balance is due to each. A.nd that the Commissioner have leave to report any special matter, embracing, of course, the trusts for a settlement of Mrs. Hamilton’s share.

HARQ-an and Wakdlaw, CC., concurred.

*Decree reversed.*

(a)

*Lowther*vs. *Condon,*2 Atk. 130.

(b)

*Browne*vs. *Kenyon,*3 Madd. 415.

(c)

**Wigram, p. 9.

(d)

 Id. pi. 183; and see *Rosborough*vs. *Hemphill,*5 Rich. Eq. 107—110.

(e)

*Rosborough*vs. *Hemphill,*5 Rich. Eq. 105—110.

(f)

 1 Russel, 171.

(g)

**P. Wzus. 280; 2 Meriy. 25; Wigram, 11; 7 Ves. 368.

(h)

*h*) See *Templeton*vs. *Walker,*3 Rich. Eq. 543, 550, et. seq.

(i)

**Sir Jas. Wigram, in *Salesbury*vs. *Petty,*3 Hare, 93.

(j)

**4 Yes. 418, 434.

(k)

**2 Mylne & Keene, 69; S. C. 7 Eng. Cond. Ch. 263.

(l)

**6 Beav. 180.

(m)

 2 Sim. .225; S. C. 2 Cond. E. Ch. 894.

(p)

 3 Hare, 85.

(z)

 Spear Eq. 312.

(v)

**See *Crook*vs. *Crook,*McM. Eq. 104; *Buist*vs. *Dawes,*4 Rich. 415; *Rochel*vs. *Tompkins,*1 Strob. Eq. 144, and Evans vs. *Godbold,*6 Rich. Eq. 26.