suffered a recovery. A distinction was made between settlements and wills, which last it was said must be taken as they are; but this must be understood with some restriction, that the construction be not barely according to the words, but likewise according to the testator's intent; as in Sir J. Hobart v. Lord Stamford, where trustees for preserving contingent remainders were inserted, though not directed by the will; and if there was any doubt, the present case was stronger, because part was executory, as land was to be purchased with the profits. Upon the whole, therefore, he was of opinion, that this was not an absolute term for 99 years, but that it determined upon Sir J. Coryton's death. ber, 5 Burr. 2703. 17. A person devised to his wife several freehold White v. Barestates, until his son T. P. should attain the age of 21 years, in trust to maintain him; and then devised the same to his said son T. P. in fee. But if it should' ensient with one happen that his said wife should be The testator at the time of making his will had only one child, the said Thomas; but after the making thereof, and before his death, he had two other sons born; namely, the plaintiffs, Edward and John. The testator died in 1759, his wife survived him, but was not ensient at the time of his death. T. P. died without issue, in 1766. A bill was filed in Chancery by the widow, on behalf of herself and her two infant children; praying that a sufficient part of the rents and profits of the real estate might be applied for the maintenance and education of the two infants. The Court directed a case, for the opinion of the Court of King's Bench-Whether, in the event that had happened, any and what estate was vested in the widow, and the two infant sons of the testator. The Judges of the Court of King's Bench certified as follows:-" We are of opinion, that the provision made by the testator, being for children which were to be born after the making of his will, he certainly intended to comprehend all the children which should be born of his then wife (whether before or after his decease); for we think that a father, in making an express provision for any children which his wife should be ensient with at the time of his decease, could never intend to give his estate to such children, in exclusion of, or to his nephews (as the event has happened) in preference, to any child or children that might be born in his lifetime. "We are of opinion therefore, that notwithstanding the defect of expression in this will, the children born before the testator's death, are virtually included in the provision so anxiously made by a parent for his posthumous children; and that upon the true construction of this will, the plaintiffs Edward and John will be entitled, from the testator's manifest Doe v. Mac- intent, to take an estate in fee in the premises at keen, 6 East, their respective ages of 21; and that in the mean time the plaintiff Eleanor, their mother, is entitled to Doe v. Stenhold the said premises, subject to the trust of the said will, for their maintenance and education." lake, 12 East, 515. 18. The word or, has been frequently construed The word or and, in a conjunctive sense, where the intention of the construed testator appeared to require such a construction. and. 19. R. Baker devised lands to his son Richard, and Soulle v. Gerrard, his heirs for ever; and if Richard died within the age Cro. Eliz. of 21 years, or, without issue; that then the land 525. should be equally divided amongst his three other sons. Richard the devisee had issue Mary, and died within age. It was resolved, that the word or, should be construed as and, in a conjunctive sense. Pollexf. 645. 20. A person devised his land to his son and his Pricev. Hunt, heirs, and in case his son should die before he attained the age of 21, or have issue of his body, then over. The son lived to 28 years, but died without issue. It was resolved, that the will should be construed, as if the words had been; and in case my said son shall happen to die before he attains his age of 21, and have issue living. 21. The words of a will were:-" I give the said Barker v. Suretees, premises to my grandson, his heirs and assigns; but 2 Stra. 1175. in case he dies before he attains the age of 21 years, or marriage, and without issue, then and in such case he devised the same to the defendant." The grandson attained 21, and died, never having been married; and it was insisted that the attaining 21, was a performance of the condition, and vested the estate absolutely in the grandson, under whom the lessor of the plaintiff claimed. Judgment was given accordingly in the county palatine of Durham; whereof error was brought in the Court of King's Bench. After several arguments, the Court affirmed the judgment, upon the authority of Price v. Hunt, where ante, § 20, Walsh v. the word or was construed conjunctively. And they said they would read this without the word or, as if it run :-" and if he dies before 21, unmarried and without issue;" which he did not do, for one of the circumstances failed. And all put together were but in the nature of one contingency; and it was considerable, that this was not a condition precedent, but to destroy an estate, devised by the former words in fee. 22. A person devised two thirds of his estate to his son M. P. to hold to him, his heirs and assigns for ever. But in case his said son should happen to die before he should attain the age of 21 years, or without issue, then he gave and devised the said two thirds to his wife. By a codicil the testator reciting this clause, proceeded thus:-" Now my further mind and will is, that in case my said son shall happen to die before the age of 21, or without issue as aforesaid, and also in case of the decease of my said wife, then I give and devise the said two third parts to all the sons and daughters of T. D.” The son died after the age of 21, but without issue; and the question was, whether the devise over to the mother should take effect, upon one of the contingencies happening only. Lord Hardwicke said, he thought it a very plain case. The testator had a wife and a son living: If he had gone no farther than the first clause, he had given him an absolute fee; but then followed the executory part. Upon the words in the codicil there could be no doubt at all; it was to go over upon two contingencies; the words as aforesaid took in all the former disposition. Suppose he had said no more than, in case my son died under 21 as aforesaid, would this have disinherited the issue, if the father had died under 21, and gone over to the mother? By no means; for he would have supplied the words-and without issue; and should have been justified by the expression, as aforesaid. He held it to be a vested estate in fee in the son, as he arrived at his age of 21; and that though he died without issue, yet it did not go over to the mother, but descended to his heir at law. 3 Atk. 390. 23. A woman devised a house to her son Robert, Framlingham his heirs and assigns for ever; and in case he should v. Brand, happen to die in his minority and unmarried, or without issue, she gave it over. Lord Hardwicke held, that the estate was to go over only upon one contingency; that of Robert's dying during his minority, subject to the qualifica v. Edwards, infra, c. 20. tions of his being unmarried, and without issue at Brownsword his death; and consequently the estate vested absolutely in Robert, upon his coming of age. Morgan, Dom. Proc. 1805. 24. A person devised to his brother Benjamin Fairfield v. Smith all his real and freehold estates; but in case his said brother Benjamin should die before he attained the age of 21 years, or without leaving issue living at his death; then he bequeathed his real estate to his mother. Benjamin Smith the devisee entered into possession of the devised premises, and attained his age of 21 years, but died without issue. The courts of Common Pleas and King's Bench in Ireland determined, that as the devise over was intended only to take place on the happening of one contingency, consisting of two branches; namely, Benjamin's dying under 21, and without leaving issue; and as in this view only the latter part of the contingency had happened, and the former branch becoming impossible, the devise over could not operate. |