
    
      Benjamin R. Bostick and others vs. J. M. Lawton and Dr. S. Smith. The same vs. The same.—Trover for Negroes.
    
    
      Trespass to try Title,
    1. Testator devised as follows: — “ I give, devise and bequeath unto my daughter, O. E. M., and to her heirs and assigns forever, all that tract of land purchased of R. T., and also that part of tract marked D, in the first purchase from Mr. J., not given to my son-in-law, S. M. W., as will more fully appear by reference to a deed given to A. and S. M. W., together with a tract in the last purchase, marked E • together with an equal portion of my personal property with the rest of my children, not herein before bequeathed.”
    2. And in a subsequent clause — " It is my will, that if any of my children, in age from my daughter, C. E. down to the youngest, die under age, or before marriage, that the portion of personal estate bequeathed to them, be equally divided amongst my surviving six minor children; and the real estate, if not otherwise devised, to be equally divided between all my surviving children.” It was held by the Court that “ or’’ must be construed “ amd’’ — that testator’s daughter, C. E. M. upon attaining the age of twenty-one, took an absolute estate, and, of course, the limitation over being too remote, is void.
    
      Before Butler, J., at Gillisonville, Fall Term, 1842.
    The jury found the following special verdict:—
    “We find that Wm. Maner, being seized in his demesne as of fee, of the lands and tenements in the declaration mentioned, duly made and executed his last will and testament on the 12th March, 1818, and devised and bequeathed as follows:
    
      “ Item. I give,, devise and bequeath unto my daughter, Civility Ewing Máner, and to her heirs and assigns forever, all that tract of land purchased from Robert Tanner; and also that part of tract marked D, in the first purchase from Mr. Izzard, not given to my son-in-law, Samuel M. Wallace, as will more fully appear by reference to a deed given to Ann and Samuel M. Wallace; together with a tract in the last purchase, marked E; together with an equal portion of my personal property, with the rest of my children, not hereinbefore bequeathedas will more fully appear on reference to the copies hereto annexed.
    And in a subsequent clause he devises in the words following: '
    “ And it is my will, that if any of my children in age from my daughter, Civility Ewing, down to the youngest, die under age, or before marriage, that the portion of personal estate bequeathed to them, be equally divided amongst my surviving six minor children ; and the real estate, if not otherwise devised, to be equally divided between all my surviving children.”
    We further find that the said William Maner died, leaving this will unrevoked, as his last will and testament.
    We further find, that the said Civility Ewing Maner entered and took possession of the lands and tenements in the said declaration mentioned, and being so thereof possessed, on the 12th day of June, 1842, died unmarried, but after she was above the age of twenty-one, leaving a last will and testament, whereby she devised and bequeathed all her estate, real and personal, to her niece, Eloísa Maria Maner, whereof she appointed the defendants executors, who did enter and possess themselves of the lands and tenements mentioned in the declaration.
    We further find, that Civility Ewing Maner was within one month and seven days of being of age at the time of the death of her father, William Maner, the testator, which was in August, 1819, and that he had but six minor children at the time of the execution of the will, including Civility.
    We further find that the copies hereunto annexed, and marked A. and B., are true copies of the last wills and testaments of William Maner, and Civility Ewing Maner, referred to above.
    We further find, that the testator was twice married; that Civility Maner was one of the children of the last marriage; that the remaindermen in the land are the children of both marriages, and the remaindermen in the negroes are the children of the last marriage.”
    Entire copies of the will in question are deemed unnecessary.
    Opinion of the Presiding Judge.
    These actions involve the title to a very valuable tract of land, and about sixty negroes. The special verdicts in both cases present the question upon which the judgment of the court is demanded. The single question upon which both cases must turn, arises on the construction of two clauses of the will of William Maner, and that is, whether Civility Ewing Maner took an absolute estate in the land and negroes devised to her, upon her attaining the age of twenty-one. If I were permitted to look beyond the will, and to take into consideration the situation of the testator and his daughter Civility E., I might come to the conclusion that it was the intention of the testator to divest his daughter of an absolute estate, either upon her dying under age or unmarried; and this would give to the disjunctive conjunction or, its grammatical meaning. But I must confine myself to the construction of the clause itself, and give to it the same construction that has been given by judicial decisions of this State to clauses of similar import. In one contingency, it might have been the intention of testator to give to his daughter an absolute estate, although she should have died under twenty-one. Had she, or any of his minor children, married and died under twenty-one, leaving issue, it could not well be supposed that it was the intention of the testator to divest the issue of the property given to the parent. In relation to his daughter, Civility, perhaps the testator could have had no such event in contemplation ; but her rights are to be determined as those of younger children might have been, and if they would have had an absolute estate, so must she. To effect this, the word or must be construed ¿md — and in so deciding, I but conform to previous decisions in this State. In this view of the law, the defendants’s title must be held good under the will of Civility E. Maner.
    Let the postea, therefore, be delivered to the defendants.
    The plaintiffs appealed from the foregoing decision, upon the following ground, viz:
    That by the grammatical and legal interpretation of the will of Captain William Maner, as it is submitted, the estate, real and personal, devised and bequeathed to his daughter, Civility Ewing, was defeasible on her dying unmarried ; that her father's will was intended to create iioo contingencies, upon the happening of either of which, her estate was to be limited over to the plaintiffs in this suit.
    Martin, for the motion,
    cited and commented on Scanlan vs. Porter, 1 Bailey, 427.
    
      Colcock, contra.
    The first clause gives an absolute estate. Mr. Colcock contended that the word “ or” must be construed “and,” and in support of this view of the case, cited and commented on the following authorities, 3 Equ. Rep. 249; 1 Bailey, 427; 1 Hill Ch. Rep. 184; 2 Vesey, Sen., 248; 5 B. and P. 38 ; 1 Taunton, 174; 1 Wilson, 140; 2 Strange, 1176; 6 J. R. 54; 3 Atkyns, 107; 3 Term Rep. 407; 1 Con. E. Ch. Rep. 424; 7Ib.4-84; 9 lb. 357; 4 lb. 191; 5 Binney, 252 ; 2 lb. 532; 2 Mass. Rep. 554.
    Rhett, in reply.
    The word “or” should not be construed so as to defeat the intention of the testator, which would be the effect of the construction contended for. The only case where “ oP’ has been construed “ and” is in favor of issue.
    Colcock. Issue can never take as purchasers by implication.
   Curia, per

Butler, J.

The question in this case cannot, in principle, be distinguished from that decided in the case of Scanlan vs. Porter, 1 Bail. 427, and the subsequent cases in the Court of Equity of Adams vs. Chapman, 1 Hill, 265, and Barksdale vs. Edwards, 2 Hill C. R. 184. The two last recognised and confirmed the authority of the first. These cases rest mainly on the authority of Fairfield vs. Morgan, 5 Bos. & Pul. 38. Since the decision of this case, there has been no disposition to agitate the question in the English Courts, and its authority has been uniformly followed in the United States. The words of devise in those cases referred to were very nearly alike. In the case of Scanlan vs. Porter, the devise was to testator’s son, but if he should die before he attains the age of 21, or have issue, then over. The word or was here construed and, because it best comported with the true intention of the testator, to conclude that if his son died under age, and without issue, the property was to go over; but that it never could have been the design of the father to disinherit the issue of his child, should he die under age, leaving issue. And such would have been the effect, if the particle or had received its disjunctive meaning. Might not the same result have followed, in relation to the clause of the will now before the court, if or were not construed and. Suppose any of testator’s minor children, (and all the children by the second marriage were in their minority at the death of their father,) had married and died in their minority, leaving issue; the husband and issue of such marriage would be divested of the property, if the construction should prevail that is now contended for by the plaintiffs. We think Civility Maner took an absolute estate upon attaining the age of 21. It is said that these words, “ die underage, or before marriage,” do not import the same thing as attaining age, or leaving issue, as the testator in this last case might well mean to provide for issue when he would not intend the same for marriage. In the event of issue being the fruit of marriage, there could be no difference. And to give effect to a devise in such case, or must be construed and. In principle, there is no distinction in the two cases; and if it were to be made, it would lead to mischievous confusion. The English Courts do not seem to have noticed the distinction at all. In the case of Thackeny vs. Hampton, 1 Cond. E. C. Cases, 424, the testatrix gave the residue of her property to her two grand daughters, in trust, till they come of age, or marry, but if one of them die before marriage or coming of age, then her share to go to the survivor, or her children. One of the legatees married, and the other attained 21. Held that both acquired absolute vested intérests, upon the happening of those events; the Vice Chancellor saying that it was the meaning of the testatrix, that if either died under age and unmarried, her share should go over to the survivor. Of course, this view could not have been taken if or had received its literal disjunctive meaning.

Note. — In Miles vs. Dyer, 7 Cond. E. Ch. Rep. 484—Testator bequeathed his real and personal estate to trustees, in trust to pay an annuity to his wife, and to raise and pay to each of his children £2000, on their attaining twenty-one, and to accumulate the surplus income of tlie trust property, during the life of his wife, and after her death to sell the property and divide the proceeds amongst his children on their attaining twenty-one ; and in case all his children should die in the life time of his wife, or under twenty-one and without leaving issue, then, after his wife’s death, to sell the trust property and divide the proceeds among certain other persons — held, that or ought to be read as and, and that the children having attained twenty-one,were absolutely entitled to the property, though their mother was living.

The result of our judgment is in conformity with that of the Circuit Court, that Civility Ewing Maner took an absolute estate, upon attaining the age of 21; and, of course, the limitation over being too remote, is void. The judgment below is therefore affirmed, and this motion dismissed.

Richardson, O’Neall, Evans and Wardlaw, JJ., concurred.

The Vice-Chancellor. This case is one of that numerous class in which the word or ought to read and. It is clear the testator did not mean the trust property to go over, if his children attained twenty-one, or if they died under twentv-one, leaving issue. He meant to put in opposition to each other, dying under twenty-one without leaving issue, and attaining twenty-one.  