
    Case 75 — In the Matter oe the Sale of Certain Real Estate by the Admr. of W. A. Moore, Sr., to W. E. Sleet, Mabel C. Moore, Intervened, Claiming Said Estate.
    June 4.
    Moore’s Admr. v. Sleet, &c.
    APPEAL FROM WOODFORD CIRCUIT COURT.
    Judgment for Mabel C. Moore and the Admr. Appeals.
    Affirmed.
    Construction of Will — Vesting of Estates Eavored — Vested Remainder — The Word “Or” Construed as “And.”"
    Held: 1. The law favors the vesting of estates, and unless the intention of the testator as shown in his will, fairly construed, requires it, an estate once given will not be defeated by subsequent provisions of the same instrument.
    2. The present capacity to take effect in possession, if the possession were to become vacant before the estate limited in remainder determines, universally distinguishes a vested from a contingent remainder.
    3. In the construction of a will the word “or” will be construed as “and,” where it is necessary to do so in order to effectuate the manifest intention of the testator.
    4. Where a testator devised land to his wife for life, remainder to his nephew, providing that if the nephew should die “before be comes into possession of same, or before 'he arrives at twenty-one years of age,” then the land to be sold at the death of testator’s wife, and the proceeds divided among certain other persons, the nephew took a vested interest in remainder, subject to be defeated by his death before he arrived at twenty-one years of age and before he came into possession of the land; and his estate, having become ab^olute^ upon his arrival at twenty-one years of age, was not defeated by his subsequent death before he came into possession.
    
      RAFFERTY & KING, D. L. THORNTON and HAZERRIGG & CHENAURT, for appellant. ’ *
    The only question in this ease, comes up, upon the construction of the will of Wm. A. Moore, deceased, which was probated in 1884. '
    We here recite all that part of the will to be construed by the court which is as follows:
    “To my faithful and beloved wife, Mary J. Moore, I give fifty acres of the fanm on which we now reside, to include the dwelling and all the improvements, during her natural life . . . All the property hereby willed to my wife is given to her absolutely, to do with as she pleases during her life, or by will at her death, but be free from control or debt of any future husband, except the fifty acres, including the dwelling and improvements, which, at her death, shall go to my nephew and namesake, William A. Moore, the son of my late niece, Jane A. Pollock and John I. Moore, if my wife should die before William A. Moore arrives at twenty-one years of age, then I desire that his father, John I. Moore shall act as his guardian and manage’ the same to the best interests of his son, William A. Moore. And in regard to the reversionary interest in the fifty acres of my hpme place willed to Wm. A. Moore, the son of Jane A. Pollock, if Willie should die before he comes into the possession of the same, or before he arrives at twenty-one years of age, then I desire that the same be sold at the death of my wife, if Willie should then be dead, and one half of the proceeds be equally divided between his two • sisters, Mary and America, and the other half be divided into four equal parts and distributed, each part pro rata, aipong the then living .children, or their descendants, of my sister, B. B. Hall and my three brothers, John P. Jam.es Me., and S. M. Moore, it is my great desire that my nephew, Willie A. Moore, shall receive a liberal collegiate education and live up to habits of industry, and hope his father will furnish him the opportunity and means to accomplish this much desired object. But if his father and guardian is not a.blb or willing to do this he may encumber the rerversionary interest in- the fifty acres of land that he will come into possession of at my wife’s death, to accomplish it. But most of all, I- desire he shall have- and cultivate a high moral and religious character. In addition to the reversionary interest in the fifty acres, I will him, W. A. Moore, $1,000 to be used by his guardian for his education.”
    The devisee, Wm. A. Moore, died several years prior to the death of the widow of the testator, and about two months after he arrived at the age of twenty-one years, and left surviving him, one child, an infant, Mabel C. Moore, who is in this case on intervening petition claiming to be entitled to the fifty acres of land referred to in the will.
    The widow of the testator died in November, 1901, and in January, 1892, W. T. .Lafferly qualified as administrator with the will annexed of the estate of William A. Moore, and proceeded under the provisions of the will, and sold said fifty acres to W. E. Sleet for the purpose of malting distribution of the proceeds as directed in the will.
    Our contention is, that Willie, having died before coming into possession of the; land., and before the death of the widow, and not coming into the possession before, arriving at twenty-one years of age, nothing would pass to his heirs under the will.
    AUTHORITIES CITED.
    Parrish, &c. v. Vaughn, &e., 32 Bush, 87; Thacltston v. Watson, 8 R., 193; Clarkson, &c v. Clarkson, &c, 8 Bush, 655; Duncan v. Kennedy, 9 Bush, 580; Forsythe v. Lansing’s Exr., 22 R., 1064; Kent’s Com., vol. 4, sec. 202; Minor’s Institutes, (vol. 2) 3S8.
    J. M. HOCE aa-j) HANSON PETERSON, rron appellee, Mabel C. Mooke.
    1. It is an old and well established principle of law which gives place only to the clearly expressed intention of the testator; That no provision can avail to take away or cut down an. estate previously given in the same, will, unless the words which cut it down, are as clear and unmistakable as the words giving the estate; and mere precatory words are not, and can never be, so clear, as the positive expression of what the estate willed is.
    2. The courts universally hold estates to be vested rather than contingent, for the reason that it is the policy of the law for the good of society, to fix definitely the fee in land, and settle titles thereto. ,
    3. The use of the disjunctive “or” instead of the copulative “and,” makes contingencies alterative. “Or” means “either” but not “both,” and the courts have uniformly recognized this, and when the instrument clearly shows - that the grantor or testator evidently meant both, “and” will be substituted for “or.” The basis of the rule being, as stated, that the testator so inténded to write it.
    4. No rule of interpretation should be adopted by the court which would disinherit the infant heir, unless such a construction is inevitable from the express language of the will.
    5. Not only must Willie A. Moore have died without coming into .possession, but he must have died before arriving at twenty-one years of age before appellee, Mabel C. Moore, can, lose her birthright in the fifty acres of land.
    6. The intention of the testator is the pole star in the will, and to ascertain that intention, is the object of rules of construction, and this intention must be ascertained by giving effect to every word, sentence, clause and item, by bringing them together and making them consistent, and by taking a view of the objects of his bounty and looking into the future as he saw it.
    AUTHORITIES CITED.
    Bells v. Bells, 8 L. R. A., 696; Jackson v. Bull, 10 Johns.', 20; Mitchell v. Morse, 77 Me., 423; Harps v. Knop, 21 Pick., 412; Poose v. Whitmore, 82 N. Y., 405; Siebert v. Wise, 70 Pa., 147; Moore v. Sanders, 15 S. C., 440; Anderson v. Cary, 36 Ohio St., 506; Ency. Law, 1st ed., 369 and notes; 467 and notes, J'arman on Wills, 5 ed., 827, St. Seq., Jarman on Wills, vol. 1, 644 and note, vol. 2, 80 et seq.; Ency. Law, vol. 29, 1st ed, 375 and notes, 376 and 377 and notes, 450 and notes; Jackson v. Blanshaw, 5 Am. Dec., 188; Jackson v. Merrell, 5 Am. Dec., 213; Bedford v. Bedford’s Admr., 18 R., 193, 22 R., 773; Bostick v. Lawton, 1 Spear, S. C., 258; Armington v. Alton, 2 Murphy, 321; Brown v. Mugway, 15 N. J. L., 330; Weddel v. Mundy, 6 Ves., 31; Jarman, vol. 3, 5th ed., 703; Ency. Law, vol. 17, 218 and note; Bentley v. Meech; 25 Beavans, 197; Danfovth v. Talbott’s Admr., 7 B. M.; Gregsby v. Breckinridge, 12 B. M., 629; Parrish v. Vaughn, 12 Bush, 97; Phelps v. Bates, 54 Con., 11; Darnell v. Crain, 1 R., 354; Taylor v. Meder, 22 R., 772.
   Opinion op the court ivy

JUDGE BURNAM

Reversing.

By the terms of the will of W. A. Moore, which was probated in the Woodford county court in the year 1S84, a large estate was devised to his wife, surviving brothers and sisters, and the children of those who had died. Among other bequests, he gave to his wife, Mary J. Moore, 50 acres of land, on which the dwelling house in which he resided was located, with remainder to his nephew and namesake, W. A. Moore, Jr., upon certain conditions; and upon this appeal we are asked to construe these sections of the will of decedent which dispose of this 50 acres of land, and which are as follows:

“To my faithful and beloved wife, Mary J. Moore, I give fifty acres of the farm on which we now reside, to include the dwelling and improvements, during her natural life. . . . All the property hereby willed to my wife is given to her absolutely, to do with as she pleases, during her natural life, or by will at her death, but to 'be free from the control and debts of any future husband, ’ except the fifty acres, including improvements, which at her death shall go to my nephew and namesake, William- A. Moore, the son of my late niece Jane A. Pollock and John I. Moore. If my wife should die, before said William A. Moore arrives at twenty-one. years of age, then I desire that his father,.-John I. Moore, shall act as his guardian, and manage the same to the best interest of his son William. . . .
“To Mary and America, daughters of my niece Jane Moore, I give each one thousand dollars, to be held and managed by their father, J. I. Moore, as their guardian, who shall let the interest on the same accumulate, and be applied in giving them a good education; and in regard to the reversionary interest in the fifty acres of my home place, willed to William A. Moore, the son of Jane A. Moore; if Willie should die before he comes into possession of same, or before he arrives1 at twenty-one years of age,’ then. I desire that the same be sold at the death of my wife, if Willie should then be dead, and one half of the proceeds be divided equally between his two sisters, Mary and America, and the other half shall be divided into four equal parts, and distributed each part pro rata among the then living children, or their descendants, of my sister, E. B. Hall, and my three brothers, Jno. P., James Me., and S. M. Moore. ...
“Tt is my great desire that my nephew Willie A. Moore shall receive a liberal collegiate education, and be brought up to habits of industry, and I hope his father will furnish him the opportunity and means to accomplish this much-desired object. But if his father and guardian is not able and willing to do this, he may incumber the reversionary interest in the fifty acres of land he will come into possession of at my wife’s death, to accomplish it. But most of all, Í desire that he shall cultivate high moral and religious character. In addition to the reversionary interest in the fifty acres, I will him, W. A. Moore, one thousand dollars, to be used by his guardian in his education.”

W. A. Moore, Jr., died in January, 1891, after he had attained the age of 21 years, and left surviving him, as his only child and heir at law, the infant appellee, Mabel Clair Moore, the issue of his marriage to Willie Pugh Miller. The widow of the testator, Mary J. Moore, died in November, 1901, and in January, 1902, the appellant, W. T. Lafferty, qualified as administrator rfe bonis non, with the will annexed, of the estate of William A. Moore, Sr., and as such sold the 50 acres of land and improvements' to one W. E. Sle.et for the sum of $8,800, one-tliird of which was to be paid in cash, and balance in two equal payments, due, respectively, in one and two years from the date of sale, with interest at 0 per cent, per annum from date. The purchaser, Sleet, refused to comply with liis1 contract of purchase upon the ground that appellant had no authority to make the sale, and this action was brought for the purpose of enforcing that, contract. The appellee, Mabel Clair Moore, by her statutory guardian, intervened, and by cross petition sought to have the above section of the will of W. A. Moore, Sr.,, construed, and asked that the possession of the property be adjudged to her, and that both Lafferty and Sleet be enjoined from interfering with her title or possessnm thereto. The judgment of the trial court was that' the title and right of possession was in the infant and the administrator dc 7wnis non has appealed.

In the first section of the will, which refers to the land in controversy, the 50, acres of land is devised by the testator to his wife for life, and at her death to his nephew? and namesake, W. A. Moore. He adds, “If my wife should die before said William A. Moore arrives at twenty-one years of age, then I desire that his father, John I. Moore, shall act as his guardian, and manage the farm to the best interest of his son William.” In another clause of the will, the testator, in speaking of the 50 acres of land, says, “In regard to the reversionary interest in the fifty acres of my home place, willed to AY. A. Moore, the son of Jane A. Moore, if William should die before he comes-into possession of same, or before he arrives at tw?enty-one years of age, then T desire that the same be sold at the death of my wife, if William should then be dead.” In the first section, the testator provided that, if his wife died during the minority of William, the land should be held by his father as his testamentary guardian until his majority. In the second clause he provides for the contingency of William’s dying during his minority, and in that event,, whether it occurred before or after the death of his wife, he directed that the land should be sold by his executor at the death of his wife.

The law? favors the vesting of estate, and unless the intention of the testator, as shown in his will, fairly construed, requires it, an estate once given will not be defeated by subsequent provisions of the same instrument. In this case the.fee'in remainder is clearly given by the words, “It shall go to my nephew and namesake,” and the only words which can be construed to take it away are the words, “I desire that in certain contingencies it shall be sold.” Mr. Minor, in his Institutes (volume 2, p. 388), in distinguishing^a vested from a contingent remainder, says: “It is not the uncertainty of ever taking effect in possession that makes a remainder contingent, for to this extent every remainder is and must be liable, since the remainder-man may die without heirs before the distribution of the particular estate. The present capacity to take effect in possession, if the possession were to become vacant before the estate limited in remainder determines, universally distinguishes a vested from a contingent remainder.” And this distinction has been frequently recognized by this court. See Railey v. Milam, 9 R., 110, 5 S. W., 367; Forsythe v. Lansing’s Exr’s, 109 Ky., 518, 22 R., 1060, 59 S. W., 854. If we give a fair and reasonable construction to the language employed by testator in all the clauses of his will in which he refers to this - 50 acres of land, we think it was his intention that his nephew, TY .V. Moore, Jr., should take a vested interest in. remainder therein, subject to being defeated by his death before he arrived at 21 years of age, and before he came into possession of the land. Courts, in the construction of wills, have long exercised the right to give to disjunctive words a conjunctive meaning in cases in which it is necessary to do so in order to effectuate the manifest intention of the testator. See 2 Rop. Leg., p. 290; Hawk. Wills, 203; 1 Redf., Wills, p. 155; Darnell v. Crain’s Guardian, 1 Ky. Law Rep., 354; Taylor v. Meder (22 R., 772) (58 W., 801); Bentley v. Meech, 25 Beay., 197. In the latter ■ease the language of the will and the facts were almost identical with those in the case at bar, and the learned chancellor said: “I think this is a case where 'or’ should be turned into 'and,’ and that it was the intention of testator that the gift to the brother should only take effect in the event of his son’s dying in the life of the widow, under age.”

We think the interpretation given by the circuit judge to the clauses of the will of testator conforms to the established rules of construction, and the judgment is therefore affirmed.  