
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1804.
    Munro and Wife, and Morgan, v. Holmes.
    A testator devised land to his three daughters, “to be equally divided, share and share alike, and if either of them should die before the age of twenty-one years, or without issue, then that her share should go to the survivors, or survivor.” The word “or,” was construed to mean “ and,” to effectuate the general intent of the testator, and avoid the disherison of grand-children.
    Special verdict. In trespass, to try tilles; before Trezevant, J. in Charleston. The special verdict states, as in the last ease, the last will and testament of Alexander Russell; and, that he devised the premises in dispute, in this case, to his three daughters, named in the case before, and their heirs and assigns, share and share alike: and, in a subsequent clause of the will, devised as follows : “ If any, or either of my said daughters shall happen to die before the age of twerity-one years, or without issue, lawfully begotten, I give, devise, and bequeath the part of such child, or children, so dying, unto the survivor or survivovs of them, and to their heirs and assigns forever, share and share alike.” The special verdict also goes on to state the marriages of the daughters, as in the preceding case, the proceedings by writ of partition, the death of Jane, without issue, and of Elizabeth, leaving issue, and then proceeds as follows: “ We further find, that the said Henry Lanchester, and Jane, his wife, by deeds of lease and release, and marriage settlement, dated 27th and 28ih November, 1789, conveyed the land allotted to the said Jane under said partition, to trustees in fee, to hold to the use of such person or persons as the said Henry and Jane, by deed, shoulá direi.t, limit, and appoint, or as the sa.d Jane alone should, by deed, or W*R direct aud appoint; and, lhai the said Jane, by deed duly executed, aud bearing dale 3d February, ItfOO, conveyed the prem*sos >a question, to her husband, iu lee simple ; and, that her husband, the said Henry, afterwards died intestate ; whereupon, Thomas, his brother aud heir at l*w, possessed himselt of the said premises, to whom the defendant is tenant, aud holds as such. And, if the court should be ot opiuiou, under all these circumstances, that, upon the death of June, above the age of twhiity-one, aud without ever having hao issue, the premises in dispute became vested iu the said two surviving sisters, we find for the plaintiff; other, wise, (or the defendant.”
    It was agreed, by the counsel on both sides, that the whole of the last will aud testament of Alexander Russell should be considered as found by the jury, and as making part of the .-pecial verdict in this case, and the case preceding. Upon advertí-.g to the will, the whole clause relating to the sous, runs in ilit.se words : “Item. In case any, or either of my said sobs, shall happen to die before his attainment to the age of twenty-one years, or, without issue, lawfully begotten, then 1 give, devise, and bequeath the part and share of such son, so dying, unto my surviving sou, and to bis heirs and assigns forever. Aud, in case of the death of both of my said sons, before their attainment to the age ol twenty.one years, and, without issue., as aforesaid, then l give ” &c.
    For the plaintiff, it was contended, that the testator’s intention was to restrain his daughters from marrying under twenty-one; and, if they should do so, and die u.der21, leaving issue, that such issue could not take under the will. Cited Moor, 422, Cro. Eüz. 1 P. Wins. 500, 2 Sir 1175, 1 Wils. 140, 3 Atk. 390. 3 T. R, 470; and insisted, note itlistuudh-g the casi-s iu the books, that the word or, ought not to be chang, d into the word and, or con. Strued to have the same meaning as and. in this will; as it would be contrary to a decision made by Buuke, Waters, and Bay. Justices, in a similar will, under similar circumstances, in the case of M’Crea v. Mason, in Charleston. Because, that determination had settled an important rule of property; and, whether it was rightly settled or not, ought not now to be. a question, as it was better the rule so settled, whether right or wrong at first, should be adhered to, than that it should be overturned, and remain un. certain. That, in the case of M’Crea v. Mason, the court deter, mined, that the word or, must be construed according to its literal 9-nd grammatical import.'This determination was generally known, and long considered as law, and, therefore, it would be dangerous to overturn it, and introduce a mischievous uncertainty. 2 Ver. 11, 388, 1 Ld. Kaym. 505. And estates may have been purchased, relying upon the establishment and permanency of the rule of construction, adopted in our courts, contrary to the decisions, in similar cases, in England. That the decision in the case of IVl’Crea v. Mason, was ón the construction of the wid of F. Godard, the words of which, were : “ I give, &c. to my four Children above mentioned, all the remainder and residue of my estate, (personal property,) to be equally divided,- share and share alike : but, in case either of my children die minors, or without leaving- lawful heir from their body,' their parts of my estate to revert to my surviving children, and to be equally divided amongst them.” Mason married one of the daughters, who died after attaining twenty-one, without issue. The surviving sister married M’Crea, who recovered. The construction of wills must be governed by what appears to have been the intention of the testator. This, is a rule paramount,- which will force its way through all restraints: and the courts may construe the words in question either way, in order to effectuate the intention. The only reason' why or, has been construed to mean and, has been, because otherwise, the grandchildren of the testator would be disinherited, or cut off from any share of the testator’s bounty^ which the testator could not be presumed to intend. But herepthere are ¿V grandchildren to suffer by the plain meaning- of the devise in this case'. 8 Atk. 193, Cro. Eliz. 505, Moore 422, 3 Atk: 389, 3 T. R. 470, Every will must depend on its own peculiar circumstances because, no two wills are exactly alike. Or, should siever be changed into and, except to effectuate a plain and maui. fest intent, not a problematical intent;- and. it is not fair tó-predicate a construction, or a supposed, or imaginary state óf things, which exists not. in the case, although it might have happened. The mischief to be avoided by a strained construction is, the estate going over to a stranger, to the prejudice of kindred. By adverting to other parts of the will, it appears the testator has used the word and, instead of the word or, in one place, which shews that he knew the difference between them. 2 Vent. 388. Every will must deBend on its own circumstances. The case of M’Crea v. Mason, however, is so much like this, that there can be'no reason for giving a different decision in this case, from what was given in that. The plain and natural reading and sense ought fo prevail.
    For the defendants it was insisted, that in the construction of’ wills, reference must be had to what the testator may reasonably"’ he supposed to have intended at the time of making his will; and every thing ought to he co. sidered which might reasonably, in the course of human events, have taken place ; and ought not to depend ou the event, or what may actually take place. Therefore the decision in the case of M’Crea v. Mason, was clearly wrong ; because if Mason’s wife ha J died under age, hut leaving issue, by the construction adopted in that case, her children could not take, which the testator could not be supposed to intend. Whereas, if the woH or had been construed and, the grandchildren might have taken, and the estate would uot run the risk of going over to a stranger. The case of M’Crea v. Mason, ought therefore to be reviewed. It never had been satisfactory to the bar, and certainly was contradictory to numerous decided cases in the English books of reports. It was also contrary to two cases previously adjudged in our own courts since die Revolution, viz. Pawley arid Allston, orfthe will of Sprey; and Osborn v. Ferguson. In the former case,- the words of the will were, “ to my son, Joseph. Sprey, and his heirs and assigns, to be delivered him when he arrives to the age of twenty one, or day of marriage, which shall happen first : but if lie should die before twenty one, or hath no lawful issue, then over.” lu these cases, counsel had advised according to the authorities of decisions in England, and the courts decided accordingly. The court ought now to oveirule the case of M Crea v. Mason, if, upon a full review of all the cases, it should he found to have been made ou mistaken ground. The Courts in England had not scrupled to do so ou similar occasions, wherever it had appeared necessary : as in the case of Marshall v. Rutter, which ovenhiew the principle established by the court, in the case of Poelmtz and Corbet, although mauy decisions had been made on the authority oí the latter case. Besides, the case of M’Crea v. Mason, has never been regarded as having settled the doctrine on the subject, but has only served to confound the opinions of counsel, and render still moreobscuie and uncertain, the rule of construction in such cases. Where the intention is clear, there is no occasion for any other rule of construction than this, that the intention shall prevail, if consistent with the rules of law. But where the intention is doubtful, some rule of construction •ought to be resorted to, for the sake of uniformity and consistency. The construction ought never to depend on the event, or on circumstances happening after the death of the testator, and which, could not be foreseen, or supposed to be provided for. Doug.; 477, 482, 494 499, note. The construction must, regard the circumstances existing at the time of the making of the will; or as it ought to have been at the time of the testator’s death. Subsequent events ought to have no weight in determining the intent. The construction ought not to varv and shift with the events that occur. 5 Bur. 2703. 1 Atk. 426. The estate here is limited to go over upon the happening of two contingent events, viz : dying under twenty one, and without issue, and both events must occur, before the estate shall go over. 1 Atk 193. It was so decided in the late case between Laochesfer & Strierdon, on this very will. The principle of the rule of construction which is discr núble in all the cases, tí, to preserve ilie estate in the family, and provide for grandchildren. Whether gruudchddre.i are in fact born or not. can mnlce no differcoce, if according to the common course of things, and in all human prof ability, grandchildren might have been horn after the making of the will, or lhe death -4'the testator. But in this case there is an additional reason why the word or should be construed to mean and, which is. that the testator has used both words indifferently aud indiscriminately in the same sense, as words of similar import, in the same will. It does not appear that he understood any difference in their signification, as he has used them. It is not to be presumed that he intended to restrain his daughters from marrying under twenty one, and per. mit his sons to marry under that age, because he could have no reason for it. Tlv meaning or intent must be collected from the whole will taken together; and the general intent must control the particular intent. The case of Fraudé.gham v. Brand, 3 Atk. 390, and the case of Peterson v. Walsh. 3 Atk. 193. sltew clearly the rule, and reason of the rule. 2 Stra. 1175. Pollex. 645. See Sanders’ new edition of Atk. Rep., notes. 2 Ves. 249. 3 T. R. 470. Fearne. 1 Fonbl. ¡09.
    Parker, Desau-surh. Gaii.lard, and Bailey, lor plaintiffs. Pringle, and J Ward, for defendants.
    The court took time to advise.
    Present, tí rcuke Watiks. Thi-.zevant and Brevard, Justices.
   In the Constitutional Couri, Charleston,May, 1804, present all the judges, except Bay, J. absent. The court having considered the arguments offered in the foregoing cases of Munro, et al & Holmes, aud Munro, et al. & Pritchard, and advised thereon, de. livered an opinion, in substance as follows : Upon a careful examination of the will in question, there can be nothing found to induce a belief that the testator intended, in case either of his daughters sh >uld marry, a> d die under twenty one, leaving issue, such isMie should take nothing under his bequest; yet if such an event had happeued, according to the literal construction contended for, the grandchildren of the testator would not be entitled to take. It is immaterial whether the event actually took place ,or not: it might have happened. It is not to be presumed that the testator lóresaw it would not happen, in the subsequent part bf the will, the word and appears to be used in the same sense as the word or, in the part in question ; and it does not apppar tha| the testator was aware, of their different meanings and legal effect. His daughters were all equally the objects of his bounty. It cannot be supposed he meant to restrain them from marrying under twenty one, and yet permit his sons todo so. And if not, he certainly' could not intend to leave the issue of such as might die under that age unprovided for. It would be an unnatural and uncharitable supposition, and therefore inadmissible. If this was not his intention, he has made a mistaken use of the word or, and should have instead thereof inserted the word and, so as to couple the two contingencies together, and not disjoin them : and then the bequest intended for his daughters, in the event of either of them dying would not go over u- less she died under twenty one, and unless she died without lawful issue. This construction is fully warranted by the apparent intent of the testator, to be collect» éd from his whole will taken together, and by the authorities produced. A distinction, to be sure, prevails in England between devises of real estate and bequests of personal estate, and chattels real, founded on the partiality which is ever shown to the heir at law. But whatever foundation there may be in England for such a distinction, there is certainly none here. All the kindred, in equal degree, are heirs at law', and equally entitled ; and the ground of distinction which exists in England, has no existence with us. The construction which has obtained in relation to personal estate, to effectuate the intention of the testator, is founded in reason am| justice, and applies on this occasion. Judgment for defendants,

Note. In Walsh v. Peterson, 3 Atk. 193, the words were “to P,, his heirs, and assigns, forever; but in case he dies before he shall attain the age of twenty one, or without issue, then ever." P died after twenty one, without issue. Lord Hard\vicke held it to be a vested estate in tee in P., as he attained twenty one, although he died without issue Cited Cro. Eliz. 525, Moore, 422, as determining the very point; and or construed and.

in Framlingham v. Brand, 3 Atk. 390, the words were, “ to R. and his ijieirs and assigns forever ; and in case he shall happen to die in his minority, and unmarried, or without issue, then over.” Lord Hardwicks was clear, that it was a fee with an executory devise, and that the estate would not go aver upon tne happening of either of the three ennti.-gences: 1. Dying in mijnority 2 Dying unmarried 3 Dying wi.hout issue. Because, should that eonstruction prevail, had R. married and had issue, and had died uuder age, .the issue would have been disinherited, which would contradict the general intent of the will. And the Lord < hancellor said that there was but one contingency, attended with'two qualifications, of his being unmarried, or dying without issue: and .the word oy has reference to the different qualifications that may happen during the minority, which are all tied up to li’s. dying under age. See 3 Ves. Jun. 545. 3 vol Suppl Vin 219.

In Brownsword v. Edwards, 2 Ves 243, the words were “but if B dies before twenty one, and without issue, over." 1 he Lord Chancellor said that as soon as B attained twenty one, or had issue, although he died before twenty one, ttie estate vested; and that this construction maltes the dying without issue go through the whole, and answers the genetal intent Cited Cro. C. 185, and other cases in Crake, where the court proceeded on the notion, that it was not ^the intent to disinherit the issue, and therefore or should be construed and.

In Wright v Kemp, 3 T. R., 470, the word or was co strued to mean and, in the surrender of a copyhold, in order to off- ctuate the intent of the parties.

In Baker v Suretees, 2 Stra. 1175, the words of the will were, “but m case he dies before he attains the age of twenty one years, or marriage, and without issue, then over.” . he d: visee died after attaining twenty one, without having been married. The court held that it was only one contingency, and rejected the word or marriage; and cited Price v Hunt, Pollex 645, where the word or was consumed conjunctively, See 1 Stra. 427. 2 Eq. Abr. 338. 8 Vin. Abr. 110. 1 Sid. 148. 2 Fearne. 390

In executory devis- s of terms for years, and other personal estate, any words are laid hold of in equity to tie up -the generality of the expression dying without issue, and confine it toa dying without issue living at the time of the person’s decease. 2 Fearne, 194, 390. 2 Ves 118, in the case of deed. But as to real «state, where the interest of the heir is concerned, a different construction h is prevailed, See 2 Fearne, 1 >4 8 Atk. 288. it is, however extended to real estates in effect, where it is necessary to exclude an indefinite failure of issue. f?ee 2 VV ooddes. 230.

Rose v. Hill, 3 Burr. 1881. The words survivor and survivors, held to relate iO the testator’'- death. 1 Ves. 227.

The words dying without issue has two senses. 1. A vulgar sense, i. e. dying without leaving issue at the person’s decease. 2. A legal sense, i. e. wherever there is afailuie of issue 2 Wooddes 242 1 P Wms. 432, Forth v. Chapman. The first applies to chattel interests; the latter to real estate, in favor of the heir. See 2 Fearne, 195, 362. But this distinctiou obtains only where the intent wid be best-answered. b Pow. in mit's.

Maberly v. Strode, 3 Ves Jun. 450. Bequestin trust for A. for life, and after his decease for his children : if sons, at twenty one; if daughters, at twenty one or marriage. “ But in case mv said son shall die unmarried, and without issue; or having issue, they shall die before he or they, if son, or sons, «hall attain the ages of twenty one years; or if daughter, or daughters, shall attain twenty one years, or be married, then over,” &e. A. married, but died .^vithotit having issue in his wife’s life time. And. was construed r.

In our law, we may frequently see the disjunctive taken as the copulative, and the copulative as the disjunctive, in order to make the words stand with reason, and the intent of the parties. Plowd. 289.  