5 N.C. 380 | N.C. | 1810
By the will of William Spier an absolute fee simple is given to his grandson, William S. Stewart; by the codicil this is converted into a contingent fee, which is (382) to pass to the testator's other grandson, John Spier, in the event of the first devisee's dying under age or without leaving issue. According to a literal construction of the will, the occurrence of either event would vest the estate in John Spier; but it is evident that such was not the testator's intention, and this intention ought always to be effectuated, when it does not contravene the rules of law. He could not have intended that the issue of William Spier Stewart should be deprived of the estate, if their father died under age; for that would operate to take all from those who appear to have been the principal objects of his bounty; yet such would be the effect of a literal interpretation of his will. His intention seems to have been that the fee should remain absolute in William S. Stewart on the happening of either event, either his leaving issue or attaining to lawful age; or, in other words, that both contingencies, to wit, his dying under age, and without leaving issue, should happen before the estate vested in John Spier. To give effect to this intention, it is necessary to construe the disjunctive or copulatively; and there are various, clear and direct authorities which place the power of the Court to do this beyond all doubt. Only a few of those cases need be cited. *255 Soulle v. Gerard, 1 Cro., 525, was a devise to one of four sons, and his heirs forever, and if he died within age, or without issue, to his three other sons jointly. The devisee had issue a daughter, and died within age, and it was adjudged that he took an estate tail. In Wright v. Kemp, 3 Term, 470, Lord Kenyon thus expresses himself: "There is no doubt of the intention of the parties, and where sense requires it there are many cases to show that we may construe the word or into and, and and into or (2 Stra., 1175; 3 Atk., 390) in order to effectuate the intention of the parties. Hence, therefore, in order to give effect to the intention of the surrenderer, we must say that when he used the word or he meant and; and there is no case where any difference has been made between a will and a deed, where the court are considering how the intention of the (383) parties can be effected."
A, being seized of lands holden upon leases for lives, devised to B, his brother, all his real and freehold estates, subject to an annuity to his mother for her life; but in case B should die before he attained the age of twenty-one years, or without issue living at his death, to his mother forever. A died, B attained the age of twenty-one years, and then died without issue. It was held that the word or, in the devise over, must be construed as and, and that the mother took nothing upon the death of B. 5 Bosan. and Pul., 37.
In examining the many cases upon this subject, the point will be found to be completely settled. It is therefore unnecessary to multiply authorities; it is clear upon principle and precedent, and we have no hesitation in saying that judgment ought to be rendered for the plaintiff.
Cited: Turner v. Whitted,
