#### Harvey Shands and Wife, et al., *vs.*Elizabeth Rogers, et al.

Testator devised his real estate to his five sons; “ and if any of my sons should die before they should come of age, or without any bodily issue, the above named land is to go to the surviving *ones:”*— Held, that *or*must be construed *and;*and, therefore, that a son who had come of age had an absolute and indefeasible estate, although he afterwards died without issue.

BEFORE JOHNSTON, OH., AT SPARTANBURG, JUNE, 1854.

Johnston, Ch. This is a bill for the construction of the will of William Rogers; and for the division of a parcel of land which his son, Amos Rogers, now deceased, took under it.

. The testator left a widow, Elizabeth; five sons, William, Amos, Thomas, Robert and James, and five daughters, Sarah, (now wife of McDonald,) Elizabeth, Jane, Tabitha and Mary; and his will, executed the 18th September, 1823, is in the terms following:

“I give, devise and bequeath unto my beloved wife, Elizabeth Rogers, the plantation whereon I now live, (including all the land I run in the new survey,) known as. the Home Tract, surveyed by Lawson Thomson, as long as she remains a widow — together with all my stock, goods and chattels, to raise my children * ***** Also I allow my beloved wife six negroes, named as follows: Tena, Betty, Jack, Dan, Sam and Jim; and at the expiration of her widowhood, the above negroes are to go to my four youngest sons: — Jack to my son, Thomas Rogers; Dan to Amos Rogers; Sam to Robert Rogers ; Jim to my youngest son, James Rogers: — and as for Tena and Betty, they are to be sold, and equally divided between my four named sons, Thomas, Amos, Robert and James.

“ All my lands I allow to my sons, to wit: All the land I *423purchased of the estate of Robington Calvert; and all on the east of Dutchman’s Creek, that I own, I give to my son, William Rogers. I leave to my son, Amos Rogers, all the land I own, east of Blackstock road, beginning on my line near W. Kennedy’s and running, &c., * * and all the land betwixt that and my son William Rogers’ land, (that is, the land I left *him,)*I leave to my son, Thomas Rodgers, my Home Tract, at the expiration of her (my wife) widowhood. He, the said Thomas Rogers, is to have every privilege, as to clearing of, land and improving for himself, *when he comes of age,*so that he does not trespass on his mother. And he, the said Thomas Rogers, *is to fay his brothers,*namely: *Robert and James Rogers,*— one hundred dollars each, *when they come of age*;— as I think that is deserving in his lot of land in preference to the lots left them.

“ I leave all the rest of the land that I own to be equally divided betwixt my two youngest sons, Robert and James Rogers, — it to be divided by my executors equally in price, and let them draw for it. And if any of my sons should die before they should come of age, *or*without any bodily issue, the *above named*land is to go to the surviving ones.

“ I leave to my daughter, Sarah A. Rogers, a mulatto girl, mamed Riah, together with a good horse, saddle and bridle.— Also I leave to my daughter Elizabeth, one negro girl named Linda, together with a good horse, bridle and saddle.

“Also, I leave to my daughter Jane Rogers, one negro girl, named Fanny, together with a good horse, bridle and saddle. Also I leave to my daughter Tabitha Rogers, one negro girl named Letty, together with a good horse, bridle and saddle.— I leave to my daughter Mary Rogers, one negro girl named Pinder, also one likely horse, bridle and saddle. The above negro girls, if any of my daughters should die without leaving any bodily issue, are to return to my two youngest sons, Robert and James Rogers, together with the said negroes’ issue, if they should have any.

*424“ Lastly, I do appoint my beloved wife, Elizabeth Rogers, executrix,, and my sons, W. Rogers and T. Rogers, and brother Robert Rogers, executors,” &c.

Amos Rogers, one of testator’s sons, died intestate, after arriving at majority, but leaving no issue; and was survived by Ms mother, brothers and sisters, named in his father’s will.

The surviving brothers of Amos set up an exclusive claim to the land devised to him, under the provision of his father’s will, that, “ if any of my sons should die before they should come of age, *or*without any bodily issue, then the above named land is to go to the surviving ones — and in support of their claim, they maintain, that the conditions of the limitation over are to be construed disjunctively. In other words, they insist that the limitation takes effect in consequence of Amos having left no issue, although he did not die before he attained full age. This claim is opposed by the mother and sisters. They contend that the conditions of the limitation are to be construed conjunctively; that is to say, the limitation does not take effect unless Amos had died without issue *and*under twenty-one.

Unless the limitation takes effect the estate remains with Amos, the deceased devisee, and must he partitioned among his distributees, his mother and sisters taking in conjunction with his brothers. So that the only question is, whether the limitation takes effect in favor of the brothers exclusively, and that depends upon the question whether the condition was intended to be disjunctive or conjunctive.

It might have been disputed whether the condition was intended to apply to all the lands devised to the sons; or only to the residuary land devised to the two younger sons, Robert and James.

The condition was applied by the testator to the *above named land;*and the lands devised to these two are mentioned immediately above. But counsel argued the case upon the assumption that *the*reference was intended to embrace the land devised to all the sons; and perhaps that is the true meaning of the *425will. As the counsel appeai’ed to agree on this point, I shall so consider it.

There is great difficulty in many cases in determining whether a disjunctive interpretation shall be imposed on the word and, or a conjunctive interpretation put on the word *or*; — or whether these words should be left to their natural meaning and effect.

The decisions are not uniform, and do not appear generally to be governed by principle. This is wrong. Caprice should be excluded if possible, as productive of uncertainty, and not unfrequently of injustice. Where there is nothing in the will to raise a contrary persuasion, the safest as well as the justest course is to assume that testators intend their words to be taken in their common and natural sense. It is unsafe upon a mere conjecture, to assume that they meant something else; or, from some fancied injustice in giving effect to what they have said, to pervert their language, or interpolate words which they have not used. How do we know that *our*words, if suggested to them, would not have been rejected ?

But where there is something to be inferred from the context of the will, — something to guide us in the nature of the right, about which the particular clause under consideration treats— or where there is a clear general intention which a literal construction of the particular clause would contradict or defeat, —it would be not only unjust but a gross violation of the true principles of decision, to disregard these indices of intention^ and execute the will literally according to its inaccurate terms. This would be little better than entrapping the testator by mere word-catching. In all cases where the testator provides for the issue of the legatee, or makes express mention of them, and then limits the property over, on the death of the legatee, under age, or unmarried, or without issue, — there is strong reason for holding the condition to be conjunctive, and that the limitation should not take effect unless all the contingencies have occurred. For example: where, after the gift of property to A. and his issue, it is declared that it shall go over if *426A. shall die in his minority *or*without issue; and A. dies during his minority, but leaves'issue, it would defeat the clear intent of the testator, to taire the estate from the issue, and give it over to the ulterior devisee. Therefore Mr. Jarman remarks (a) that “ it is obvious that the ground for the changing *or*into *and*exists *a fortiori*where children, or issue, are the express objects of the testator’s bounty.”

In this case, however, there is no mention of the issue of the testator’s sons in the words of direct gift. It is only from the contingencies on which the property is limited over that an intention to favor their issue can be inferred; and, therefore, the principle just mentioned has no application.

But we are bound by cases of our own, — resting on high, authority from other quarters, — to go beyond that principle.

Decisions seem to have settled the further principle, that where the words of direct gift do not mention issue at all, so that no intention to confer a benefit on them, as such, can be inferred from expressions in their favor; yet, if the primary estate created is of such a nature that it can, by possibility, incidentally benefit them — a limitation over of such estate, in the event that the first taker die, during minority, *or*without issue, shall not take effect, unless the first taker die under age *and*without issue. It is assumed, from the description of the events on which the estate is to go over, that the grantor could not have intended to divest the primary estate, if at the death of the first taker, — whether under or over age, — he left issue. If the first taker should die under age, but leaving issue, it is assumed that the grantor could not have intended to strip them of whatsoever benefits the nature of the estate might incidentally confer on them; and therefore, to preserve such benefits to the issue, it is held, that, in such case, *or*is to be construed *and ■;*and the primary estate becomes absolute and free from condition, if the owner of it leaves issue.

*427It would seem that the reasons upon wbicb these decisions were made would have been satisfied if the decisions had been confined to cases of the exact description just mentioned;— *i. e.*cases where issue were left. It might still have been competent to the Court to have adopted a different construction of the word, *or,*in cases where tlj.e first taker died after age leaving no issue. *In such a case, or*might have been allowed its natural meaning, without defeating the intention of the grantor. The primary estate need not have been held to have become absolute on its owner’s attaining majority.

But it appears that no such distinction has been taken in the cases. Perhaps it was better to avoid the perplexity it would have occasioned. However this might have been, it is certain the courts have applied their reasonings, to both the contingencies without discrimination; and have held that *or*is to be construed *and,*as well when the first taker has attained full age, and then died without issue, as when he died under age, leaving issue. In the one case as well as the other, the first estate has been held, to have become absolute, and the limitation over defeated.

I have said that the construction, I have reference to has been made, wherever the incidents of the primary estate might by possibility enure to the benefit of the issue of the first taker.

Some of the cases, were cases where the primary estate was to the first taker and his heirs: expressly fee simple estates.

Such was *Adams*vs. Ohaplin,(b) where the devise was “to my son John to him and his heirs, forever,” with a limitation over to testator’s son William, if John should “die without lawful heir,” (construed issue in that case) *“or*before he is twenty-one years old.” *Or*was held by Chancellor Harper(c) to have been employed in a conjunctive, and not disjunctive sense, upon several authorities quoted by him; and he concluded that John *428took a fee simple estate; which became absolute on his attaining twenty-one (which he did) though ho died afterwards without issue. To this decree the Court of Appeals agreed.(d)

Substantially of the same description is the case of *JEdwards*vs. *Barhsdale,**(e)***and that of *China*vs. *White,*(f) the latter being subject, however, to the observation that the property involved in it was personal.

But there are other cases, where, like the case before me, the primary devise is to the devisee *simpliciter*without words of inheritance; and the same doctrine has obtained. One of these is *Scanlan*vs. *JPorter.**(g)***The words of devise in that case were; *“*unto my son James Scanlan, I give, devise, and bequeath my plantation, or tract of land, known by the name of Hunter’s” with the condition, that “ should either, or any, of my children die before they are of age, *or*have lawful issue, then their parts, or shares, of my estate are to be divided among the survivors, share and share alike.” James having attained full age, conveyed to Porter, the defendant in the action; and then died without ever having had issue. — The action was brought by his surviving brothers and sisters, to recover the land from Porter, his alienee; and it was adjudged that the word *or*was intended in a conjunctive sense; and that the limitation could not divest his estate (which was held to be a fee) inasmuch as he had not died without issue *and*in his minority. It was asked by the Court “ could the testator have intended, in the event of his son, James, dying before twenty-one, but leaving issue, that the estate should go over, in exclusion of his children ?”

In all these cases authorities are quoted which seem to sustain the decisions, and to which, without setting them out, I refer, *(h)*

*429It is adjudged and decreed, that the limitation over to the brothers of Amos Rogers, never took effect; but he having died after attaining full age, the land in question is distributable among all his distributees, as his absolute fee simple estate: and it is ordered that a writ of partition do issue accordingly. The costs to be paid by each party according to his or her legal interest.

It is ordered that the commissioner do inquire into the facts alleged by the defendant, Mrs. Sarah A. Donald, in relation to the conduct of her husband, and if, in his judgment, it be proper, that he report what settlement should be decreed for her and her issue. I suppose, in any case, she would be entitled to her land, if she should survive her husband; and, of course, to have the proceeds, if it be sold, secured to her. But let the commissioner report.

The defendant, James Rogers and others, appealed, and now moved this Court to reverse the decree, on the grounds:

1. Because, from the express terms of the' will, the lands did not vest in the life-time of Amos Rogers; but that the same did actually vest, at his death, in his brothers.

2. Because, the whole purpose of the testator, as developed in the will, shows that the lands were to go , to the sons, in exclusion of the daughters.

*Bolo,*for appellants.

(a)

**1 Jarm. on Wills, 426.

(b)

**1 Hill, Ch. 266.

(c)

Id. 267-8.

(d)

**1 Hill, Ch. 275.

(e)

**2 Hill, Cli. 184, 194-5.

(f)

5 Rich. Eq. 426.

(g)

 1 Bo.il. 427.

(h)

 6 Johns. R. 254; 12 East, 288; *Thackery*vs. *Hampson,*1 Cond. Eng. Ch. R. 424; *Miles*vs. *Dyer,*5 Sim. 435, (7 Cond. Eng. Ch. R. 484); 1 Taunt. 122; New Rep. 26, 38.

Per Curiam.

This Court concurs in the decree; and it is ordered, that the same be affirmed, and the appeal dismissed.

JohNStoN, DüNKIN, Dargan and Wardlaw, CC., concurring.

*Decree*affirmed.