
    *Lessee of Richard Cheesman against Abraham Wilt.
    Devise of lands to J and S, their heirs and assigns. Provided always, if they shall die under age and without issue, then remainders over: these remainders only can take place on the happening of both contingencies, their dying under age and without issue.
    Where the court have no doubts, they will not reserve a point, nor direct a verdict to be entered pro quer. subject to this reserved point, where their opinions are for the defendant.
    EjECTMBNP for a lot of ground in the city of Philadelphia.
    The question turned on the last will of James Parrock, dated 24th May 1754, who, it was admitted, died seized of the premises. He therein (inter alia,) devised all the rest and residue of his real and personal estate to his grand children, John Parrock and Sarah Parrock, their heirs and assigns. ‘ ‘ Provided always, the legacies hereinbefore devised “to the said John and Sarah are upon this special condition, “that if both my said grand children shall happen to die “under age and without any lawful issue, then it is my will ‘ ‘ that one-fourth part of all and singular the real and personal estate to them before devised shall go to the monthly ‘1 meeting of the people called Quakers, and the other three- “ fourth parts to be equally divided between Sarah Small-“wood and the children of John Smallwood and Thomas “Smallwood, the children of Benjamin Richards and of Wil“liam Paschall, Sarah Paschal!, Lydia Cathcart and her children, Joseph Eordham and his children, Richard Eordham “and his children, the children of Isaac Ashton, Sarah “Thomas and her children, Mary Lee and her children, “Lydia Davis and her children, John Spencer and his chil- ‘ ‘ dren, and to the survivor of them, and to the heirs and assigns of such survivors or survivor, as tenants in common ‘ ‘ for ever. ’ ’
    
      Both the grandchildren, John Tarrock atid Sarah Parrock, died of full age, but without issue.
    Sarah Smallwood died intestate, leaving eight children," under whom the lessor of the plaintiff claimed.
    Messrs. Rawle and Thomas for the plaintiff.
    We contend, that it was the true intention of the testator, upon the construction of the whole will, that the remainders over should take effect, in case either of the grand children died without issue, though they attained their full ages. A court of justice may construe a will, and from what is expressed necessarily imply an intent not particularly specified in words. 3 Burr. 1634.
    The court have the same power over the word and as or. There is no magic in particular words, further than as they shew the intention of the parties. Where there is no doubt on the intention of the parties, and where the sense requires it, there are many cases to shew that we may construe or into and, * and and into or. 3 Term Rep. 473. Devise of leasehold lands after the death of his wife, to his son ■- R, for so many years, &c. if then living, but if then living and should then or hereafter have issue male, to him absolutely, otherwise over. R died in the life of the wife, leaving a son; and shall be construed ur, and the leasehold belongs to the representative of R. 1 Vez. 217. S. P. Co. Lit. 225. a. So in a promissory note, or held to be synonymous to and. Cowp. 832.
    Messrs. Lewis, Wilcocks and Tilghman for the defendant.
    The true intention of the testator can only be collected from the words of his will. Without doing violence to the clear expressions of it, the remainders over can only take effect on both events taking place, viz. the grand children dying under age and without lawful issue. Such has been the adjudications in a variety of cases, where the words of wills might at first sight bear a different construction.
    ‘ ‘ I give the premises to my grand son, his heirs and as- “ signs, but in case he dies before 21 or marriage, and with- “ out issue, then to S.” The grandson attained 21 and died, having never been married. The word or was construed as and, and held that all put together was in nature of one contingency. It was deemed considerable, that it was not a condition precedent, but to destroy an estate devised by the former words in fee. 2 Stra. 1175, Barker v. Suretees.
    One devises lands to his son and his heirs, and in case his son dies before 21, or have issue of his body living, then to P. The son lives to 28 years of age, but dies without issue; F shall not have the land. Pollex. 645, Price v. Hunt. Devise to his son and his heirs, and if he dies within age, or without issue, remainder over. The devisee had issue, but died under age; the issue shall have the land and not the remainder man. Cro. El. 525. Moor. 422. Soulle v. Gerrard. Devise to A, his heirs and assigns for ever, but in- case he dies before 21, or without issue, then to testator’s wife, her heirs and assigns. This was held to be a vested fee in the son, as he attained 21, and though he died without issue, that it did not go over to the mother, but descended on his heir at law. 3 Atky. 193. Walsh v. Peterson.
    One devises his house to R, his heirs and assigns forever, and in case he shall happen to die in his minority and unmarried, or without issue, remainder to N and his heirs; the estate vested in R when he came of age. 3 Atky. 390. Framlingham v. Brand.
    Under a devise to A and his heirs forever, paying to B 20I. and if A die without issue living C, then C shall have the land, paying the same sum as A should have paid, A takes an *413] estate *in fee simple. Cro. Jac. 590. Pell v. Brown. -* Devise to A, and if he die without issue that this shall remain to B, is tail; but it is not so if his death without issue be limited within a certain time, as before 24 years of age, or in the life of another. Moor. 464. 8 Yin. Abr. 240, pi. 4. Bacon v. Hill.
    The counsel then contested in what shape the verdict should be given. The plaintiff insisted that there should be a verdict for the plaintiff, subject to the point reserved on the legal operation of the words of the will; the defendant contended that there should be a:verdict pro def.,. and the plaintiff might, if he thought proper, move for a new trial.
   Per Cur.

The present case is extremely clear, and would have been deemed so before the resolution in Soulle v. Ger-rard, Temp. Eliz. Where the words of a will are plain, the intent always follows the words. (See 2 And. 17. 4 Burr. 2246. 5 Bac. Abr. 525.)

It is true, the intent of a devisor may be implied where the words are defective, but not against the words of the will. [Moor, 464.] We cannot from arbitrary conjecture, though founded on the highest degree of probability, add to a will, or supply the omissions. [3 Burr. 1634.] We should do manifest violence to the testator’s expressions; if we did not say, that the remainders over could only take place on the happening of both contingencies, — the grand children who were the primary devisees dying under age and without issue.

The cases cited by the.defendant’s counsel, go very far to shew what would have been the legal construction, if the testator had made use of the disjunctive, “or” instead of the conjunctive “and.” — But as the will before us is penned, there can be no possible doubt.

As to the manner bf taking the verdict: The practice certainly is, where a point is reserved, the verdict should be entered for the plaintiff. (2 Barnes, 366. Kemp v. Stafford et al.) But where the whole court have no doubts or difficulties, we could not easily be prevailed on to direct a verdict against the settled judgment of our minds. The verdict should therefore be given for the defendant, and if the plaintiff is dissatisfied with our opinion, he may move the court for a rule to shew cause why a new trial should not be had.

Cited in 2 Binn., 544; 3 S. & B.., 488.

The jury gave a verdict for the defendant, without leaving the bar.  