
    [Philadelphia,
    December 28,1835.]
    M'CARTHY against DAWSON, Executor of BAXTER.
    A testator having given the residue and remainder of his estate, real and personal, to J. B. “ his heirs and assigns forever,” charged with the payment of debts, funeral expenses, and certain small legacies, added the following proviso: “ Provided, that in ease the said J. B. doth not return to Philadelphia, from his present intended voyage to South America, or in case ho doth not return to Philadelphia within a reasonable time after my decease, but departs this life without lawful issue, then, and in such case or cases, all my said messuage, lot, and residuary estate, real and personal, intended for the said J. B. shall go to, and I do hereby give, devise, and bequeath the same to A. B. &c., their heirs and assigns,” subject to the same charges: Held,that the proviso was to be taken to refer to a dying without issue on the contemplated voyage; and J. B. having returned from the voyage in the life time of the testator, he took a fee simple in the real estate.
    This action was tried before Kennedy, X, at a Court of Nisi Prius, held at Philadelphia, on the twenty-seventh day of February, 1835, when a special verdict was found, stating, in substance, the following facts:
    Mary Marshall, of the County of Philadelphia, widow, being seized in fee of a certain lot or piece of ground, with the messuage thereon erected, situate on the west side of Delaware Second Street, between Shippen and South Streets, in the district of Southwark, in the said County, made her last will and testament in writing, dated the twenty-fourth of October, 1801, as follows:
    “ Be it remembered, that I, Mary Marshall, of the City of Philadelphia, widow, and relict of Joseph Mai-shall, late of the said city, bricklayer, deceased, being of sound mind and memory, do hereby make my last will and testament in manner following, that is to say: I will and bequeath all my beds, bedding, chairs, tables, and every other article of my household and kitchen furniture, also, all my plate and all my wearing apparel unto my beloved niece, Rebecca Cox. Item. — As for and concerning my dwelling house and lot, and all the residue and remainder of my estate, real and personal, whatsoever and wheresoever, not herein otherwise disposed of, I do give, devise and bequeath the same, subject to the provisions, limitations, and conditions hereinafter mentioned, unto my esteemed friend, James Baxter, of Philadelphia, now about to go to South America, his heirs and assigns forever, charged and chargeable, nevertheless, with the payment of all my just debts and funeral expenses, and the costs of a tomb stone for my grave— chargeable also with the payment of a legacy or fund of thirty dollars, which I give and bequeath to the church wardens and vestrymen of the Swedes Congregation in Wicaco, towards the purchase of a bell for that church. — And chargeable also with the payment of a legacy or fund of fifty-three dollars, and one-third of a dollar, which I give and bequeath for the schooling and education of Ann Baxter, daughter of the said James Baxter’s brother. Provided always, and it is my mind and will, that in case the said James Baxter doth not return to Philadelphia from his present intended voyage to South America, or in case he doth not return to Philadelphia, within a reasonable length of time after my decease, but departs this life without laioful issue, then, and in such case or cases, all my said messuage, lot, and residuary estate, real and personal, intended for the said James Baxter, shall go to, and I do hereby give, devise, and bequeath the same unto my esteemed friend, the -said Ann Baxter, and my nephews, Peter Resolve Cox, and Isaac Cox, their heirs and assigns, to be equally divided between them, share and share alike, as tenants in common, and not as joint tenants, subject, nevertheless, to the payment of my just debts and funeral expenses as aforesaid, and also, to the payment of the aforesaid two legacies of thirty dollars and of fifty-three dollars and one-third of a dollar; and for the payment of such debts and legacies, I do in such case authorize and empower my executors hereinafter named, and the survivor of them and the executor of such survivor, to bargain and sell my messuage and lot, with the appurtenances, for the best price that can be gotten,' and by proper deeds and assurances in the law, to grant and convey the same, with the appurtenances, unto the purchaser or purchasers, his, her, or their heirs and assigns forever.”
    The testator died seized of the said estate, without having revoked her said will, which was duly proved on the 12th day of February, 1802. James Baxter, in the said will mentioned, returned to Philadelphia from the voyage to South America, spoken of in the will, before the death of the testator, and was resident in Philadelphia at the period of her death.
    The question was, what estate he took under the will.
    
      Iialy and F. Hubbell for the plaintiff,
    contended that he took a fee. They argued that by the true construction of the will, the estate in fee simple, which was undoubtedly given to James Baxter in the first part of the will, was to be divested only in the event of his dying while absent on the contemplated voyage, without leaving issue: and that the words, “ but depart this life without lawful issue,” were to be understood with reference to his absence abroad, and not as a distinct case. And James Baxter having returned home in the life time of the testator, the estate became absolute in him. They cited 6 Cruise's. Dig. 193.
    C. Ingersoll, for the defendant,
    argued that the words, “ depart this life without lawful issue,” were general in their application, and not confined to, the case of absence on the voyage cóntemplated, and, consequehtly, that James Baxter had only an estate in tail. He cited Irvine v. Dunwoody, (17 S. <§• R. 61.) Caskey v. Brewer, (17 S. fy R. 441.) Bakery. Gerrish, (5 Rawle, .) 1 Powel on Devises, 361, 363, 364, n., (ed. 1827.) '
   The opinion of the Court was delivered by

Gibson, C. J.

The argument is, thathowever else the devise to the first taker may have limited the estate, he could in no event havehad a fee simple, the provision for his death without issue having limited it as a fee tail by implication; and that there being a particular estate of freehold to support the limitation over as a remainder, it is not to be construed an -executory devise. It is obvious, however, that a general failure of issue was not the contingency that was uppermost in the mind of the testatrix; and that it was contemplated by her but in connexion with a failure to return in a reasonable time from the voyage to South America. The devisee was a bachelor, about to proceed on a long sea-voyage, in which, should he perish, it was scarce possible that he could leave lawful issue; and the contingency of his death, would .therefore present to the testatrix the idea of a dying necessarily without issue. It was therefore, of a dying without issue on that voyage, of which she spoke. She viewed the contingency for which she was going to provide, but in two aspects — of a return to Philadelphia in a reasonable time, or, as the only other alternative, death without issue abroad. “ Provided always, and it is my will and intention,” are her words, “that in case the said James Baxter doth not return to Philadelphia from his present intended voyage to South America, or in case he doth not return to Philadelphia in a reasonable time after my death, but departs this life without lawful issue;” then over. To avoid the preceding conclusion, we are asked to put “ or” in the place of but,” and thus make the dying without issue a distinct and independent contingency. The word “ or” has doubtless been construed and;” not, however, where it was not indispensable to some plain point of intention; and what object which the testatrix may be thought to have in view, is there to be answered by the mutation desired here 1 She evidently thought, that Captain Baxter would return without issue, or perish on his voyage without issue; the requirement of his presence at home in a reasonable time- after her death, being to let the estate go over on a reasonable presumption of his death. The leaving of issue abroad was a contingency not contemplated; or if contemplated, the object was to bring him back to enjoy the estate at home, instead of suffering it to go, at perhaps an indefinite time, to his offspring by a stranger, for whom she felt no affection. That being accomplished, it is evident she meant no restricted gift, It is of weight that the devise is in fee by express words; and though the generality of such words may be restrained by implication, it never has been done but to effect some clear purpose, palpably in the testator’s view. No such purpose is perceptible here, for the estate is given pretty much in the same words and with the same encumbrances, as it is given to the devisees over, who were certainly intended to have a fee. On the face of the will, then, there is a manifest intent to give the estate absolutely if at all, and to limit a fee to the first taker, provided he returned -to take possession of it in a reasonable time from the death.

Judgment for the plaintiff  