
    Stephen T. Scanlan v. Joseph Porter.
    Charleston,
    Feb. 1830.
    JDevise to testator’s son, J. S.; bat if he should die before he is of age, or has lawful issue, then over to the surviving children of testator. Held, that or must be construed and, and that J. S. took a foe, which became indefeasible on his attaining fall age; and that the limitation over was defeated, although J. S. subsequently died without having had issue.
    Tried before Mr. Justice O’Neall, at Coosawhatchie, Spring Terna, 1829.
    This was an action of trespass to try titles, in which the fol lowing facts were found by special verdict. James Scanlan, senior, deceased, devised the land in dispute to his son James Scanlan, in these words: “ Unto my son Janies Scanlan, I give, devise, and bequeath my plantation, or tract of land on Port Royal Island, known by the name of Hunter’s; and as it is at present under the incumbrance of a law-suit, it is my desire, that the expenses thereof should be paid out of my estate.” By a subsequent clause, the testator directed, that if the result of the law-suit relative to the plantation called Hunter’s, should be against his estate, his executors should purchase the same, or other land of equal value, for his said son. The testator made other devises and bequests to each of his children, of whom plaintiff was one; and annexed this general condition: “ Should either, or any of my children, die before they are of age, or have lawful issue, their parts or shares of my estate, are to be divided among the survivors, share and share alike.”
    On the death of the testator, James Scanlan entered, and was seized of (,he land in dispute,’ by virtue of the said devise ; and having attained the age of twenty-one years, sold and conveyed the same to defendant, who by virtue thereof entered, and remains seized and possessed of the said land. James Scanlan, the devisee, afterwards died unmarried, and without issue, leaving the plaintiff, and another brother, and a sister, children, and heirs at law of the testator, surviving him.
    Upon this verdict the plaintiff moved for judgment on the following grounds: 1st. That James Scanlan took but an estate for life, there being no words of inheritance or perpetuity in the devise to him. 2d. That if he took an estate of inheritance, it was defeasible on his dying without leaving issue; and.tb© jiejrg at jaw 0f t]le testator became, thereupon, intitled to the land, eitiier under the limitation over to them, or by virtue' of the possibility of reverter remaining in the testator.
    Acts of 1824, p. 23.
    O’Neall, J. The first ground of the plaintiff’s motion presents a question, which was long a questio vexata in our Courts. It is now, however, well settled, both by express enactment of the Legislature, and by the decisions of the Court of Appeals, that words of inheritance or perpetuity are not necessary, in a devise, to pass a fee. Dunlap v. Crawford, 2 M‘C. Ch. 171. Hall v. Goodwyn, decided at Columbia, in January, 1828. (vide 4 M'C. 442.) But even if the case of Hall v. Goodwyn, 2 N. & M. 383, had not been overruled by the cases already cited, 1 should have had no doubt, that under the devise in this case, James Scanlan took a fee. Upon reading the will it will be manifest, that the testator most obviously intended his son James to take a larger estate than one for life. His direction, that in the event of the land being recovered in the pending law-suit, it should be purchased for him, is a clear indication of that intention. But without entering into the consideration of other particulars, the limitation over to the heirs of the testator, in the event of either of his children dying before twenty-one, or without having had issue, gave to each of the devisees an estate in fee, by implication, in the lands respectively devised to them. Waring v. Middleton, 3 Desaus. 253-4. Purefoy v. Rogers, 2 Saund. 388, a, Note (in the text) at the end of the case.
    The question raised by the second ground depends upon the construction, tobe given to the words of the condition annexed to the devises contained in the will; to wit, “ should any of my children die before they are of age, or have lawful issue,” their parts or shares to be divided among the survivors. This question, so far as I am informed, is now, for the first time, to be decided in this State. In England and in New-York, it is no longer an open question ; but it is now well settled, that in cases like the present, the word “or” will be construed to mean “ and,” and the limitation over will be allowed to take effect, only where the devisee died under age, and without issue. Jackson, ex dem. Burhans v. Blanshan, 6 Johns. 54. where all the authorities are collected.
    
      Concurring, as I do fully, in the propriety of this construction, it is almost unnecessary to give any additional reasons for my judgment, or to do more than refer to that case, which is perfectly analogous to the present, and to the opinion of C. J. Kent, whose argument is altogether unanswerable. I will, however, remark, that the construction contended for by the plaintiff is unnatural, and unreasonable. If not inconsistent with some known rule of law, it is the duty of the Courts to give effect to the intention of the testator, which must be collected from the whole will. Now, what was this testator’s intention ? Clearly to provide for the son and his issue. Could he have intended; that in the event of his son James dying before twenty-one, but leaving lawful issue, the estate should go over to his brothers and sisters, in exclusion of his own children 1 To say that this was the intention, would be to violate the obvious import of every provision of the will: and yet to that result we must necessarily come, by admitting the disjunctive construction contended for. Until he attain the age of twenty-one, the devisee is incapable in law of aliening his estate ; and until that period, therefore, unless he should have issue capable of inheriting to him, the testator might very reasonably, and perhaps wisely, undertake to regulate its ultimate disposition. But after that period, the unconditional tenure of the estate is necessary to its useful, or, at least, its full and free enjoyment. In this country there are no hereditary family distinctions, no local associations, to attach a fancied value to the soil of our birth ; and the power to aliene is often necessary to the comfort, and indeed to the support of the devisee. In the case before us, I must require some clearer indication of an intention, on the part of the testator, to clog the estate with conditions, after the devisee has arrived at years of legal maturity, than is contained in the words of the condition annexed to the devise, to induce me to come to the conclusion, that it was the design still to render the estate conditional, and dependant upon the circumstance of his leaving lawful issue.
    The case of Doe, lessee of Usher v. Jessep, 12 East, 288, has been relied on to support the claims of the plaintiff, under another aspect. That was the case of an estate-tail, with a limitation over in the event of the devisee’s dying under age, and without issue; and it was held, that the limitation over was de-fcated by the devisee’s attaining the age of twenty-one, although he afterwards died without issue. But then, it is urged, it was also decided, that the estate reverted to the heir at law of the testator. This was obviously the only course the estate could take. The remaindermen were not intitled, for the limitation over was defeated: there were no heirs in tail, to whom the estate could descend per formara doni; and of necessity the heir of the testator must come in under the reversion. This case, however, cannot aid the plaintiff in this action. There is nothing in the will before us, which either expressly, or by implication, according to any known principle of construction, reduces the estate of the devisee to what in England would be a fee-tail, and in this State a fee-conditional. The effect of construing “ or” to ineau “ and,” as appears by the very case cited, is to render the happening both the contingencies, mentioned in the condition, necessary to giving effect to the limitation over; so that when either of them becomes impossible, the limitation over is defeated, and the estate is discharged of the condition: nor is there any further condition, or limitation, of any kind, which leaves a reversion, or a possibility of reverter in the heirs at law, of the testator.
    On the whole I am of opinion, that on attaining the age of twenty-one, the estate of James Scanlan-became absolute and indefeasible; and his conveyance to the defendant passed a good title to the latter, who is, therefore, intitled to the postea, and to enter up judgment on the special verdict.
    From this decision the plaintiff appealed, and now moved to reverse the judgment, on the grounds taken in the Court below.
    Treville, for the motion.
    Fuller, contra.
    
   Colcock, J.

delivered the opinion of the Court.

This motion arises out of exceptions to the opinion of the presiding Judge, on the questions raised by the special verdict. This Court concurs with him, in his views upon those questions ; and the motion is, therefore, dismissed.

Johnson, J. and Richardson, J. concurred.

Motion refused.  