
    Brewer et ux. v. Opie.
    [Tuesday, April 17, 1798.]
    Case Agreed — When Set Aside — Uncertainty.—If a case agreed, he too imperfectly stated for the Court to proceed to judgment, it will be set aside, and newproceedings ordered.
    Will — Construction—Word “Or” Construed “And.”— Devise of the testator’s -whole estate to his son A.; and if he die before 21, or lawful heir, then over to the children of B. and O.; the word or is to be taken copulatively, and both contingencies must happen before those in remainder are entitled,
    
      Same — Same—Remainder Good as Executory Devise. —As the death of A., though, will determine both events, the limitation over will be good as an executory devise.
    Same — Same—Shares—Per Caplta. — But, as those in remainder must take as persons described, it is confined to children of B. and O. in esse at the testator’s death; who take per capita, and-not per stirpes.
    This was an action of ejectment,, in which there was the following case agreed. We agree, that William Lancaster died after having duly made and executed his last will and testament, bearing date the 26th day of November, 1765, arid recorded the twelfth day of May, 1766,'in the following w.ords: “I William Lancaster of the County of Northumberland being in perfect sense and memory do make and ordain this to be my last will and testament, that is to say, I give and bequeath unto my beloved son Joseph Lancaster my whole and sole estate both real and personal, and in case my .said son should die before the age of twenty-one years, or' lawful heir,' then and in that case X give my said estate to be equally'divided between the children-of Joséph Blackwell and Lindsay Opie and their heirs forever. Item I appoint my friends Mr. Winder Kinner and John Williams'to be guardians to my said son Joseph Lancaster'and my whole and sole executors of this my last will and testament.
    William Lancaster. ’ ’
    We agree, that Joseph Lancaster, mentioned in the said will of William Lancaster, was seised and possessed of the ■ land in the ■ declaration mentioned, 213 *and died so seised and possessed on the--day of-1778, without issue, and under the age of twenty-one years. We agree, that Joseph Blackwell, at the time of the death of the aforesaid William Lancaster, was married to Hannah Nelms, first-cousin of the said William Lancaster, and had one child, a son by the name of Joseph; who died under age, and without issue, soon after the said William Lancaster, and before the death of the said Joseph Lancaster.
    We agree, that Lindsey Opie was married to Elizabeth Nelms, a 'first cousin of the said William Lancaster, at the time of the death of the said William Lancaster, and had three children by the said Elizabeth,’ at .the death of. the said William Lancaster,' to wit; Sally, Lindsey, arid William; and, four children, after the death of the said William Lancaster, to wit: Thomas, Elizabeth, Susanna and Hiram .Lindsey. We agree, that Sally was the only surviving’ child of the said Lindsey Opie, and Elizabeth, at the time of the said Joseph Lancaster’s death, and was born previous to' the' death of the ' said William Lancaster." We agree, that Joseph Blackwell, after the death of his said first wife Hannah Nelms, intermarried with Hannah Rogers; by whom he had issue Nancy, the wife of'the lessor of the plaintiff, arid who diéd an infant’ and unmarried, after the death of the said Joseph Lancaster. We agree, that the said Nancy, the wife of the plaintiff, was born prior to the déáth of Joseph Ldn^ caster, but after the deáth of the said William Lancaster. We agree, the lease, entry, and ouster, &c. in the usual form.
    The District Court gave judgment upon this case agreed for ' the defendant; and, the plaintiff appealed to this Court.
    
      
      Case Agreed — When Set Aside — Uncertainty.—In Stockton v. Copeland, 23 W. Va. 700, it was said: “The judgment of the court below to be reviewed by us was rendered on a case agreed. The rules, which govern in snch cases, are similar to those, which govern on a special verdict; and if it be too uncertain for the court to determine in whose favor the judgment should be rendered, it should be set aside and further proceedings should be directed. (Brewery. Opie, 1 Gall 212.)”
      In this connection, the principal case is cited with approval in Taliaferro v. Gatewood, 6 Munf. 323.
    
    
      
      Will — Construction—Word “Or,” Construed “And.” —In Toothman v. Barrett, If W. Va. 311, the court said: “The decided cases have settled with tolerable accuracy the cases, in which the court will take the liberty of changing the disjunctive ‘or’ and reading the will as if the testator had used the copulative ‘and. ’ Where there is nothing else in the will to control the construction a devise to A and his heirs, and if he die under twenty-one, or without issue, or if he die under twenty-one or unmarried, then toB, tbe word ‘or’ should be construed ‘and.’ Therefore in such case B will take no estate unless A dies leaving no issue and under twenty-one, or in the other case unless A dies unmarried and under twenty-one.. See Soulle v. Gerrard, Cro. Eliz. 525; Mytton v. Boodle, 6 Sim. 457; Framlingham v. Brand, 3 Atk. 390; Weddell v. Mundy, 6 Ves. 341; Denndem. Wilkins v. Kenneys et at., 9 East 366; Myles v. Dyer, 5 Sim. 435; Brewer v. Opie, 4 Call 212.”
      ' Bor this proposition, the. principal case is cited with- approval in East v. Garrett, 84 Va. 545, 9 S. E. Rep. 1112.
    
    
      
      Same — Same—Remainder Good as Executory Devise. —The principal case is cited in Bells v. Gillespie, 5 Rand. 308.
    
    
      
       Same — Same — 'Shares— Per Capita. — Where the bequest is made to several, in general terms indicating that they are to take equally as tenants in common, each individual will of course take the same .share; in other words, the legatees will take per capita. The same rule applies where a bequest is to one who is living, and to the children of another who is dead, whatever may be the relations of the parties to each other, or however the statute of distributions might operate upon those relations’ in case of intestacy. Thus, where property is given “to my brother A, and to the children of my brotherB” A takes a share only equal to that of each of the children of B. So where the gift is to A’s and B’s children, or to the children of A and the children of B, the children take as individuals per capita. Hoxton v. Griffith, 18 Gratt. 578; Sengér v. Sengér, 81 Va. 699; Walker v. Webster, 95 Va. 382, 28 S. E. Rep. 570, all citing, with approval, the principal case; Crow v. Crow, 1 Leigh 74; McMaster v. McMaster, 10 Gratt. 275.
    
   PENDLETON, President.

If we decide on the case agreed, William Lancaster and his will are out of question; since he is not stated to be seised, and we must enquire who is the heir to Joseph the son, who was seised. The statement is imperfect, 214 *as to who was his heir; since the time of his death, whether before or, since January, 1787, is not stated, so as to enable us to determine, whether the old or new law of descents is to govern. Nor, does it appear, whether all, or any of the four children of Opie, were born before; or' after Joseph’s death. But, it seems pretty evident, that the plaintiff Nancy, not stated to have any relation by biood to him, could not - have any claim upon his inheritance.Supposing, however, what was probably the case, that the testator was seised, and that the title .depends upon his will, I have-no difficulty at present in deciding: that Joseph the. son, took a contingent fee, to become absolute upon either event’s happening; that is to say, his coming of age, or having a child born, or leaving one at his death; no matter which. That or in this will is to be taken copulatively, so as to require the happening of both contingencies to entitle those in remainder. That, as the death of Joseph, must determine both events, the remainder’ was good as an ex-ecutory devise. That, as those in remainder must take as persons described, it is confined to children of Blackwell and Opie, in esse at the testator’s death, so as to exclude after-born children. And, that those in esse took per capita and not per stirpes, being all equally within the description, as both events happened. The consequence is, that three-fourths of the estate was devised, upon the contingencies happening, to Opie’s three children, and one-fourth to Blackwell’s son. But, how this one-fourth was to go upon his death, the facts stated do not enable the Court to decide. Therefore, as the case agreed is too uncertain for a judgment to be given on it, the judgment of the District Court should be reversed, the case agreed set aside, and the cause remanded to the District Court, to be further proceeded in.

The judgment was as follows:

The Court is of opinion, that the case agreed in the record mentioned, is too uncertain for a judgment to be given'thereon, and that the said judgment is erro215 ' neous. ^Therefore, it is considered, that the same be reversed, &c. that the case agreed be set aside, and that the cause be remanded to the said District Court' to be further proceeded in.  