
    Brooke v. Croxton & als.
    January Term, 1846,
    Richmond.
    (Absent Brooke, J.)
    Case at Bar — Wills—Construction,—A testator, after directing that all his estate shall be equally divided among his seven children, adds: “It is my will and desire that if any of my children should die before they attain to legal age, or without a lawful heir, in either case, that all such property *as they may receive in the division of, my property, return to my surviving children, or their lawful heirs." Held:
    1. Same — When Limitation Over Takes Effect. — The limitation over takes effect upon the happening of either contingency.
    2. Same — Survivorship — Original and Accrued Shares. — upon the death of one of the children under age, his share of the estate vested absolutely in the survivors. And upon the death of another child under age, or without children, the property which such child received from the share of the first, did not pass under the limitation over to the surviving children.
    Thomas Crow, of Essex, died in 1825, having first made his will, which was duly admitted to record. After directing his debts to be paid by a sale of his perishable property, he desires all his lands, negroes, and money, to be equally divided among his seven children. In a subsequent clause of his will, he says: “It is my will and desire that if any of my children should die before they attain to legal age, or without a lawful heir, in either case, that all such property as they may receive in the division of my property return to my surviving children or their lawful heirs.”
    After the death of Thomas Crow, two of his children died under the age of twenty-one years, and their shares of the estate were divided among the survivors. Elizabeth, another child, married Benjamin Brooke, and died in 1833, having attained the age of twenty-one years, but never having had a child. Immediately upon the death of Mrs. Brooke, this suit was instituted by Croxton and wife, and the other surviving children of Thomas Crow, to recover from Brooke the land, slaves, and money, which had come into his hands in right of his wife Elizabeth, from the estate of her father. Brooke answered, disclaiming all title to the land, but insisting that his wife having attained to twenty-one years of age, he was entitled to the personal property which she had received from her father’s estate.
    The cause came on to be heard in 1839, when the Court expressed the opinion, that under the will of *Thomas Crow, the personal estate derived by Mrs. Brooke from her father, belonged to the surviving children of Thomas Crow; and made a decree in their favour for the slaves; and directed a commissioner to take an account of any money or other property which had been received by Brooke in right of his wife Elizabeth, under the will of Thomas Crow, and of the hires and' profits of the slaves during the time they were held by Brooke, after the death of his wife. Erom this decree, Brooke obtaihed an appeal to this Court.
    G. N. Johnson, for the appellant,
    insisted that the will of Thomas Crow was to be construed as if the word “or” had been “and.” ' And to shew that this might be done, he referred to Bridgman’s Digest, 742-3, title “Words;” Powell on Devises, by Jarmin, 379-384; 21 Baw Bib. 223; Eramlingham v. Brand, 3 Atk. R. 390; Walsh v. Peterson, Id. 193; Denn on dem. Wilkins v. Kemeys, 9 East’s R. 366; Coleman v. Holladay, 3 Munf. 510; Brewer v. Opie, 1 Call 212; Eastman v. Baker, 1 Taunt. R. 174; Eairfield v. Morgan, 5 Bos. & Pul. 38; Read v. Snell, 2 Atk. R. 643. He then insisted, that the use of the word “either” had arisen out of the same error which had induced the use of the word “or” for “and.” Or the .word “either” might be considered as referring not to the limitations, but to the children. But whether this last suggestion be correct or not, it was, obviously, against the whole scheme of the will, and the intention of the testator, that both events should occur before the estate became absolute in the first taker. And to effect the intention, the Court might reject the words entirely. Ramm on Wills, 98; Eomax’sDig. 122; M’Clintic v. Manns, 4 Munf. 328.
    He farther insisted, that the personal estate derived by Mrs. Brooke from her brothers, who died after the father, did not pass by the limitation over, even if that *which she received from him, did so pass. It was true, it passed on the death of these brothers to Mrs. Brooke, under the operation of the will of Thomas Crow; and was, therefore, embraced within the terms of the decree of the Court below; but the limitation having once operated to transfer the property, it was exhausted, and could not operate again to transfer it from Mrs. Brooke or her husband to the children of Thomas Crow, who survived her. 2 Roper on Beg. 286; Barnes v. Ballard, stated in Pain v. Benson, 3 Atk. R. 79; 2 Powell on Devises, by Jarmin, 624-630; 22 Baw Bib. 333-337.
    Berry, and Patton, for the appellees,
    admitted, that “or” might be'read “and” to effectuate the manifest intention of the testator, apparent from the will. But they insisted, that there was no case where this had been done when the testator had used other words to indicate his intention in the use of the word “or.” They insisted farther, that the word “either,” necessarily referred to two objects, and could not properly refer to more, and, therefore, both from its own nature, and its position in the sentence, must refer to the limitations and not to the children. And they insisted, that the language of the will was plain, and wholly free from all doubt as to its meaning; and the Court could not, upon any supposition of what were the natural promptings of a parent, or what was just and proper, undertake to say that the testator did not mean what he clearly said; or make a will for him, according to views of propriety which the Court might entertain.
    Upon the question whether the limitation would transfer the estate a second time, they suggested, it was doubtful if the question arose on the record; and that it would be still open, though the decree in this case should be affirmed. But if it was presented on the record, they took a distinction between the case of a separate legacy ^limited over, which they admitted would not pass a second time under the limitation, and the case where the legacies are of an aggregate fund given to several, with directions that it shall survive. And for this distinction, they referred to 2 Roper on Leg. 290-291.
    
      
      Survivorship — Original and Accrued Shares. — The law seems well established that only original and not accrued shares survive, in the absence of the positive and distinct indication of intent in the will that the latter shall survive. Armistead v. Hartt, 97 Va. 318, 33 S. E. Rep. 616, citing the principal case; 3 Min. Inst. (2d Ed.) 591; 29 Am. & Eng. Enc. Law (1st Ed.) 493.
      The principal case is also cited in Gish v. Moomaw, 89 Va. 370,15 S. E. Rep. 868.
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that though according to a series of decisions, it would be competent to construe the word “or” con-junctively, instead of disjunctively, in the limitations of a will, where such a construction is necessary to carry out the intent of the testator as manifested on the face of the will, such construction could not be made in the present case without disregarding the other words, “in either case,” immediately following the word “or” in the preceding clause, referring to it as its next antecedent, and clearly manifesting the intent that the limitation over was to take effect upon the happening of either contingency, the dying before attaining 21 years of age, or without lawful heir: an intent equally manifested by the subsequent provision for the return of all such property which the first taker received, to his surviving children or their lawful heirs. The Court is therefore of opinion, there is no error in so much of said decree as decides that the property acquired by the said Elizabeth as her original share under the will of the testator, on the contingency which has happened of her dying without issue, passed under said will to the appellees. But the Court is further of opinion, that as to any accretions which may have accrued to her in her lifetime, by the death of other devisees or legatees under age, or without issue, they do not again survive, under the terms of the will. On the contrary, the remainder was given as an absolute estate, without any restriction. The Court is further of opinion, that as by the bill and proceedings, it appears that two of the children, John and George, had died without issue, in whose ^shares the said Elizabeth was entitled to remainders under the will of the testator, the terms of the decree, which holds that the property acquired by said Elizabeth, and her husband in her right, under the will of the testator, passed under the said will to the appellees, are broad enough to embrace such remainders accruing to her by survivorship, as well as her original share. The Court is therefore of opinion, that in this respect, as to the property acquired by said Elizabeth, or her husband in her right, by sur-vivorship, the said decree is erroneous. The same is, therefore, reversed with costs, as to so much thereof as is herein declared to be erroneous, and affirmed for the residue. And the cause is remanded for further proceedings, according to the principles of this decree.  