East v. Garrett & Wife

84 Va. 523 | Va. | 1888

Richardson, J.,

after stating the case, delivered the opinion of the court.

This case turns upon the proper construction to be given to the fifth item of the last will and testament of Dr. Southey S. Satehell, late of Accomac. That item of the testator’s will is for convenience here reproduced:

“ 5th. I give to Edward P. East and his legitimate children forever, the farm which I prarchased of Major John Savage, upon condition that he will pay to Eliza P. Scott, Sr., one hundred and thirty dollars annually as long as she lives, and will also pay me what he owes me; but if he will not pay the above annuity to Eliza P. Scott, Sr., and what he owes me, and shall die leaving no legitimate child, I then give the above mentioned farm to Eliza Prances Scott and her children forever; but if she should die leaving no child, I then give the above mentioned farm to my nieces, Mrs. Mary Scarburgli, Mrs. Sarah Duftield, Miss Virginia S. Joynes, and the children of my nephew, Thomas R. Joynes, Jr., and their heirs forever. I also give to Edward P. East forever, all my overcoats, coats, vests, and pantaloons.”

The devisee, Edward P. East, was, it seems, a robust young man of thirty-one years of age at the date of the testator’s death. He was the natural son of the testator by Ailsie East who predeceased the testator by several years. The annuitant, Eliza P. Scott, Sr., was, at the date of the testator’s death, sixty-five years of age. Eliza Frances Scott, who isthe defendant, Eliza F. 0. Garrett, is the natural daughter of the testator, Southey S. Satehell, by said annuitant, Eliza P. Scott, Sr., and she was, at the date of testator’s death, twenty-five years of age. It is a conceded fact that the testator had great regard and consideration for his said daughter, and expended his money and means in her education, maintenance, and support, and also in the support and maintenance of her mother, Eliza P. Scott, Sr. Hpon the death of the testator, the several devisees took possession of the lands devised to them respectively ; and the said Edward P. East held continuous possession of the tract devised to him until his death, which resulted from accident on the 30th of March, 1885. He died intestate,- never having been married, and, of course, left no legitimate child or children; and having met an untimely death, he left surviving him the said annuitant who was greatly his senior—an event that could not have been anticipated by the testator.

Edward P. East accepted under the will, paid the debt due by him to the testator, took possession of the land devised to him, and, during his lifetime, paid to Eliza P. Scott, Sr., the annuity which, by the fifth item of the testator’s will, he was required to pay to her, and his administrator, after his death, paid said annuity up to the 1st of January, 1886.

Benjamin Iff. East, the plaintiff below, and the plaintiff in error here, is the half brother of the said Edward P. East, having the same mother, but by a different father, and who, at the death of Edward P. East, was, and now is the sole heir at law of the latter; and as such, he claims the land in controversy.

On behalf of the plaintiff in error, it is insisted that under the fifth item of the testator’s will, Edward P. East took, upon the payment of the debt due the testator, an estate tail, enlarged by our statute into a fee simple; which estate, after having vested, as'alleged, upon the performance of the condition precedent aforesaid, was liable to be divested only by the concurrence of the two events alleged to be conditions subsequent: 1st, The failure of Edward P. East to pay the annuity to Eliza P. Scott, Sr.; and 2d, The death of Edward P. East without leaving any legitimate child or children. And thus it is contended that the sole question for decision is whether the estate, so alleged to have vested, was liable to be defeated by the happening of either one of these events, or whether, in order to defeat the estate, both events must happen.

The case is very fully and ably argued for the plaintiff' in error in the petition,'where it is said, “the words, ‘and his legitimate children forever,’ would not, perhaps, have been sufficient to create this estate if used in a deed; but they are quite sufficient in a will, ‘wherein greater indulgence is allowed ’; for in a will ‘ an estate tail may be created by a devise to a man and his seed; or to a man and his heirs male; or by other irregular mode of expression,’ citing 1 Tuck. Com. Book 2, p. 47. Or it may be created by a devise ‘ to a man and his children, if he has no children at the time of the devise—or to a man and his posterity, or by any other words which show an intention to restrain the inheritance to the descendants of the devisee.’ ” Citing 1 Black. Com. Book 2, p. 115 (marg.) note 20; 2 Minor’s Inst., 968, and cases cited.

Doubtless the la'w is thus correctly stated; but it is obvious that the doctrine last above cited to the effect that an estate tail may be created by any “ words which show an intention to restrain the inheritance to the descendants of the devisee,” by no means tends to uphold the contention of the plaintiff in error; for not ouly is there no mention in the will of any person, or class of persons, that could embrace the plaintiff in error, but, on the contrary, the manifest and clearly expressed intention of the testator, as evinced, both in the immediate context and in the general scheme of the will, is that the estate should not vest absolutely except in the event of the death of Edward P. East leaving legitimate children, thereby clearly restraining the inheritance to the descendants of the devisee; failing which, the estate goes over to the testator’s natural daughter, ElizaErances Scott, and her children forever, butuponthe further contingency that, if Eliza Frances Scott should die leaving no child, then over “to my nieces, Mrs. Mary Scarburgh, Mrs. Sarah Duffield, Miss Virginia S. Joynes, and the children of my nephew, Thos. K.. Joynes, Jr., and their heirs forever”; thus making these blood relations the ulterior devisees in fee, upon the happening of the two events specified—first, the death of Edward P. East without leaving any legitimate child; and, second, the death of Eliza Frances Scott leaving no child.

On behalf the plaintiff in error, it is claimed, and it was so held by the court below, that of the three conditions annexed to the devise in question, only one of them, to-wit, the payment of the debt due to the testator, is a condition precedent, and that the other two, namely, the payment of the annuity by Edward P. East, and the event of his death leaving no legitimate child, are conditions subsequent, and that both of these events must concur before the limitation over to Eliza Frances Scott can take effect. And the circuit court held with the plaintiff, as to the character of the conditions named; but, at the same time, held that each and all of the conditions must be performed; or, to state it differently, that upon the happening of either one of the events specified, the estate devised, on condition, to Edward P. East failed, and the limitation over took effect, and that this result necessarily followed when Edward P. East died leaving no legitimate child.

Though it is not necessary to a proper decision of this case, let it be conceded for the sake of the argument, that the payment of the debt due to the testator was the only condition precedent, and that on the performance thereof the estate created vested in Edward P. East; yet it must be remembered that the estate so created and vested was not an absolute estate, but an estate on condition. This is so obviously true, that any contention to the contrary necessarily involves the absurdity of utterly disregarding the plainly expressed words of condition which immediately follow the words creating and devising the estate.

It is insisted that, inasmuch as the estate vested in Edward P. East on the performance by him of the condition precedent, i. e., the payment of the debt due by him to the testator, then both of the conditions subsequent must happen; and, in argument, the question is asked: “ Shall the language (of the will) be varied in order to defeat a vested estate ? Or. shall it be construed naturally, not to say strictly, to prevent such a result?”

The natural construction insisted on by counsel, refers to the language introducing the limitation over to Eliza Prances Scott, which is as follows: “but if he will not pay the above annuity to Eliza P. Scott, Sr., and what he owes me, and shall die leaving no legitimate child, I then give,” &c., &c.

The court below holding that each of the conditions expressed must he performed, also held that, as Edward P. East died without leaving any legitimate child, one of the very events had happened which, according to the manifest intention of the testator, defeated tlie previous estate on condition, and caused the limitation over to take effect. This ruling of the circuit court was the result of substituting the disjunctive word “or” for the copulative word “and,” where the latter word occurs in the language above quoted; the effect of which is to make the limitation over read “but if he will not pay the above annuity to Eliza P. Scott, Sr., or what he owes me, or shall die leaving no legitimate child, I then give the above mentioned farm to Eliza Frances Scott and her children forever,” &c., &c.

But it is insisted that this construction is unwarranted by anything contained in the will, is subversive of the established rules of construction, and is opposed to the great majority of adjudged cases in which similar language has been construed. In other words it is contended that the words in question must be taken in their natural grammatical sense, and that when so taken and read, the limitation over is dependent upon the concurrence of all the events specified.

In support of this view, numerous authorities are cited by counsel for the plaintiff in error, prominent among which are the following: Jenkins v. Van Schack, 3 Paige, 242; Gray v. Pearson, 6 H. L. Cas., 105-6; Doe ex Dem., Usher v. Jessup, 12 East, 228; Day v. Day, 1 Kay., 703; Cook v. Misehouse, 34 Beav., 27; Janncy v. Spragg, 7 Gill, 197, reported also in 48 Am. Decis., 557; Redfield on Wills, 473-4, and note 6; 3 Lomax Dig. (marg.) 125-7, and cases cited; and Brewer v. Opie, 1 Call, 212.

But before examining these authorities, let us refer briefly to some of the general principles in regard to the construction of wills; and especially to such as respect the words “or” and “and” here under consideration.

Counsel for the plaintiff in error, quoting from Gray v. Pearson, supra, state the rule thus: “In construing wills and all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary-sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.”

In 2d Wms. Ex., 715, the author in giving the general rules for the construction of wills, states “that the will must be most favorably and benignly expounded to pursue, if possible, the intention of the testator. To effectuate, therefore, the clear intention, as apparent upon the whole will, words and limitations may be transposed, supplied, or rejected. So, in order to advance the apparent intention of the testator, £ or ’ may he construed ‘and’ and vice versa, in cases of legacies as well as devises of real estate. So, ‘if’ may be construed ‘ when’ for the same purpose.” See opinion of Dorsey, C. J., in Janney v. Spragg, supra, a case relied on by counsel for the plaintiff in error. And in Jackson v. Blansham, 6 Johns., 54, Kent, C. J., after a careful examination of all the authorities upon the subject, quotes with approbation the rule, “that in deeds and wills, the words ‘or’ and ‘and’ are not to he always held to a strict grammatical sense, hut‘or’ is tobe taken for ‘and,’ and ‘and’ is to be taken for ‘or,’ as may best comport with the intent and meaning of the grant or devise.” Dow, as to the authorities cited and relied on by counsel for the plaintiff in error, there is not to he found in any of them a single utterance which can he said to be opposed to the principles above laid down. In many cases as well those referred to as others, words have been rejected or supplied, and in many others, “or” has been taken as “and,” and viceversa, but always with the avowed purpose of carrying into effect the intention of the testator as collected from the whole will, and in pursuing this cardinal principle of construction, it is almost universally admitted that established rules of construction, however wise and just, can at best only serve as aids to a just conclusion. Such is the rule, especially when construing plain words and expressions in common use, which have not acquired a definite legal signification. Hence, in the old case of Jeffereys v. Poyntz, 3d Wils., 141, it was said: “ Cases in the books upon wills may serve to guide us with respect to general rules in the construction of devises in wills, but unless a case cited be in every respect directly in point, and agree in every circumstance with that in question, it will have little or no weight with the court, who always look upon the intention of the testator as the pole star directing them in the construction of wills.” This language was substantially quoted, and with approbation, by Pendleton, P., in. Kennon v. McRoberts, 1 Wash., 97. And in Eden v. Wilson, 4 H. L. Cas., 284, Lord St. Leonards said: “If the most illiterate person makes his own will, though there is not a word of correct grammar in it, yet if you can collect the intention you are bound to give legal effect to it.” In the case at bar the manifest intention is easily collected from the whole will, and the circuit court has simply collected that intent and given effect to it.

In the recent case of Stokes v. Van Wych, 83 Va., 724, this court said: “In construing wills, it is universally admitted that the intention of the testator must be sought after as the ‘ pole star,’ and, when found, must be followed as the ‘sovereign guide,’ and that intention must be looked for and found in the will itself. But it must be borne in mind, however, that the true inquiry is not what the testator meant to express, but what the w'-ofds used by him do express. And it must also be remembered that though the testator’s intention, when ascertained, is implicitly obeyed, however informal the language in which it is conveyed, yet the courts, in construing that language, always resort to certain established rules—rules deeply embedded in the law^—by which particular words and expressions, standing unexplained, have acquired a definite legal signification, which does not always comport with. their popular acceptation.” Citing Burks v. Lee, 76 Va., 389, and 3 Jarman on Wills, top pp. 669-70.

How, in the light of these principles, the inquiry is, does the testator make manifest his intention by what he has said in Ms will ? The easy and true answer is, that, whether we look alone to the words to be construed, in the light of the immediate context, or to those in connection with other parts of the will, the intention is clear beyond all question. This being so, and the intention thus collected not being in contravention of any legal principle, our simple duty is to give legal effect to that intention.

The evident genefal intention of the testator, and that which is substantially, if not expressly stated in each and every clause disposing of real estate, is that his immediate family relatives, his nieces, Mrs. Mary Scarburgh, Mrs. Sarah Duffield, Miss Virginia S. Joynes, and the children of his nephew, Thomas R.. Joynes, Jr., are the ultimate objects of his bounty, subject only to the preceding life estate as to the land devised by the first clause; and, as to the lands devised by the second, fifth, and sixth clauses, the same nieces, and the children of his nephew, named in the first clause, are made the ulterior objects of his bounty, subject to the contingencies expressed in these clauses respectively, or, to state it differently, the general intention is evinced by these prominent features, which pervade the whole will: 1st. The testator’s plain intention to dispose of his whole estate; 2d. His equally clear description of the persons to take; and when conditions are annexed to the devises, respectively, the careful, though inartificial, manner of stating such conditions; 5th. The manifest intention that the persons, or classes of persons, named or described by the testator, and none other, should share his bounty, so far as he by law was permitted to provide.

Hence, by the first clause of his will, the testator gives certain lands to Mary C. Hew; remainder to his said nieces, and the children of his said nephew, and their heirs forever. Observe here there is no condition, limitation or restriction whatever. After carving out the previous life estate, the absolute fee is given, and to persons or classes of persons carefully designated and described.

By the second clause, the testator gives to his aged and faithful servant, Isaac Satchell, that part of the farm on which he, the testator, lived, lying on the west side of the road described; and at the death of said life tenant, to his said natural daughter and her children forever; “but if she should die leaving no child,” then over to the testator’s nieces, and the children of his nephew mentioned in the first clause. Here, though providing for his natural daughter to whom he was deeply attached, and who, upon the face of the will, was evidently the chief object of his bounty, it appearing in evidence that what she got absolutely as residuary legatee, together with the limitations over in her favor in the event of leaving at her death a child or children, is in amount or value the great bulk of the estate; yet the testator was careful, even in dealing with this obvious favorite of his, to prescribe a limitation over to his said blood relations in the event his said natural daughter should die leaving no child.

By the third and fourth clauses, the testator bequeaths to his two old servants, Lucy Ewell and Caleb Satchell, respectively, certain amounts in personalty. But, passing over the said third and fourth clauses as not necessarily involved in the matter of construction in hand, it need only be remarked that it is perfectly clear by the concurrent testimony of every other clause in the will, that the testator’s general intention was as stated above. Observe too, the logical consistency of thought and expression by which the testator makes it manifest that his special intention was to make his said natural daughter the chief object of his bounty; for in perfect accord -with the aforesaid general intention, he gives the land, devised by the second clause, to her and “her children forever”—that is, after the preceding life estate to Isaac Satchell; hut in the event she should die leaving no child, then over to the testator’s said nieces, and the children of his said nephew, without any limition or restriction whatever.

How, for the present passing by the fifth clause, the one in question, we find that the testator, by the sixth clause, gives to his said natural daughter-, Eliza Erances Scott, and her children forever, “ the whole of the farm on which I reside, lying on the east side of the road leading from Drummondtown to Locustville; but if she should die leaving no child, I then give the above-mentioned part of my farm on which I reside to my nieces,” &c., naming them—they being the same persons mentioned in the first, second, and fifth clauses. Thus the lands mentioned in the second and sixth clauses, which together constituted the farm on which the testator lived, were intended to come together as the property of Eliza Erances Scott and her children forever; but, be it observed, with a clear and explicit limitation over in the event Eliza Erances Scott should die leaving no child.' Eliza Erances Scott had no children either at the date of the will or at the testator’s death—hence it is obvious that the estate given by the words “to Eliza Erances Scott and her children forever,” is defeasible in the event of her death “not leaving a child”; in which event the limitation over to the testator’s said blood relations must take effect, because it is so expressly provided in plain words. So far everything is plain, both as to the general and the special intent.

We come, however, to the fifth clause in which the testator does not so clearly express himself as in other clauses; or in which it may be said the testator is guilty of needless, if not senseless, repetition out of which has grown all the trouble. The testator says: “ 5th. I give to Edward P. East and his legitimate children forever, the farm which I purchased of Major John Savage, upon condition that he will pay to Eliza P. Scott Sr., one hundred and thirty dollars annually as long as she lives, and will also pay what he owes me; but if he will not pay the above annuity to Eliza P. Scott, Sr., and what he owes me, and shall die leaving no legitimate child, I then give the above-mentioned farm to Eliza Erances Scott and her children forever; but if she should die leaving no child, I then give the above-mentioned farm to my nieces, Mrs. Mary Searburgh, Mrs Sarah Duffield, Miss Virginia S. Joynes, and the children of my nephew, Thos. R. Joynes, Jr., and their heirs forever. I also give to Edward P. East all my overcoats, coats, vests, and pantaloons.”

The trouble arises mainly, if not entirely, out of the useless, if not senseless repetition involved in the use of the words “will not pay the above annuity to Eliza P. Scott, Sr., and what he owes me, and,” between the words “but if he,” where they first occur, and the words “shall die leaving no legitimate child,” &c. Obviously, these words serve no intelligent purpose, and they must have been inadvertently used; for the preceding words, ^upon condition that he will pay to Eliza P. Scott, Sr., one hundred and thirty dollars annually as long as she lives, and will also pay what he owes me,” fully express, so far as they go, the conditions annexed to the gift, and by necessary implication they fully and clearly express the idea that if the conditions be not performed, the estate will not pass. The result is, that by the use of these words, the word “and” without necessity and without sense, is twice needlessly introduced and obviously each time only serving to obscure' the testator’s meaning plainly collectable from the whole context. Then these words should be rejected, not only as surplusage, but as words that can serve no other purpose than to confuse and obscure the meaning intended to be expressed, as clearly appears from the context.' Without these words, the clause will read: “5th. I give to Edward P. East and his legitimate children forever, the farm which I purchased from Major John Savage, upon condition that he will pay to Eliza P. Scott, Sr., one hundred and thirty dollars annually as long as she lives, and will also pay what he owes me; but if he shall die leaving no legitimate child, I then give the above mentioned farm to Eliza Frances Scott and her children forever; but if she should die leaving no child, I then give the above mentioned farm to my nieces, Mrs. Mary Searburgh, Mrs. Sarah Duffield, Miss Virginia S. Joynes, and the children of my nephew, Thomas E. Joynes, Jr., and their heirs forever.” So read without the useless words that only serve to becloud the manifest intention as gathered from other parts of the will, the words introducing the limitation over in the event of the death of Edward P. East Avithout leaAdng legitimate children, are “but if he shall die leaAÚng no legitimate child;” and is, if not precisely, substantially in the same language employed to introduce similar limitations over in the event of the death of Eliza Francis Scott without children, tire language as to her in each case being “ but if she should die leaving no child” thus bringing the language employed in introducing the limitation OAmr in the eA^ent of the death of Edward P. East, leaving no legitimate child, into entire harmony Avith that employed in the second, fifth, and sixth clauses introducing similar limitations over in the event of the death of Eliza Frances Scott leaving no child, and into like harmony AAdth the manifest general intention of the testator that his said nieces, and the children of his said nepheAV should, upon the happening of the events specified, ultimately oavu and enjoy all his real estate.

The above construction, by AAdiich certain Avords in the fifth clause are rejected as utterly useless and meaningless, is not necessarily in conflict AAdth the construction given by the circuit court; for whilst the words rejected are useless, they may possibly have been used by the testator to emphasize the negative pregnant necessarily carried by the preceding words annexing conditions to the devise. And it is probable that the circuit court took that vieAv, and in doing so found no difficulty in construing the AA7ord “and” twice unnecessarily introduced, as “or,” it being manifest from the whole context that the intention Avas to defeat tlie estate given on condition, if EdAvard P. East should fail to pay the annuity, or fail to pay the debt due the testator, or should die leaAdng no legitimate child.

"Why, and for what conceivable reason, should the testator so carefully limit over in each case the estate in the land devised to his natural daughter in the event she should die leaving no child, if a similar limitation over in respect of the land devised to Edward P. East, his natural son, is to go for naught ? If the testator had. said such was his purpose, and had said it in plain and unambiguous terms, that would have sufficed, and would preclude all mere conjecture upon the subject. He, however, does not say so, but quite the contrary, if we are to heed his real meaning as collected from the whole will.

It surely cannot be contended that the devise to Edward P. East and his legitimate children created a greater estate than the similar devises to Eliza Frances Scott and her children; nor can any natural reason be assigned why, in the former case, Edward P. East, hedged around by these conditions, should take an absolute estate upon the .performance of only one of them, when one only of such conditions, if not performed, shall be sufficient to defeat the estate devised to Eliza Frances Scott and her children. Hor can it be consistently argued, in the light of the circumstances which surrounded the testator when he wrote his will, that there is not a deep significance in the words legitimate children employed in the devise to Edward P. East, as compared with the simple word children employed in each of the devises to Eliza Frances Scott.

In attempting to repel the view taken by the judge of the circuit court in his opinion, which is part of the record, it is insisted in the petition for writ of error that- the fact that Edward P. East “ was living in open shame with a negro mistress” by whom he had, at the date of the will, at least two illegitimate children, did not conduce, considering the very promiscuous life led by the testator himself, to a less degree of regard by the latter for Edward P. East than was entertained for his natural daughter, Eliza Frances Scott.

It is true that the testator seems to have been quite irregular in his life, and was the father only of children born out of wedlock; but it is also true that bis children, though unlawfully begotten, were born of women of his own race. Edward P. East, in whose veins the blood of the testator ran, seems to have been less fastidious in his tastes, and to have preferred illicit life, open shame, and to be the father of illegitimate children by a negro mistress. To say that such a course of life was not offensive to the testator, his own sins to the contrary, notwithstanding, is to falsify all experience and to fix upon the white race a stigma not deserved by the great majority of that race. It is, then, in view of the evidence, in view of the greater affection felt by the testator for his natural daughter, and in view of the great preference shown for her over Edward P. East upon the face of the will, but natural to conclude that in using the words legitimate children in connection with the devise to the one and only the word children in connection with the other, the testator intended to emphasize his disapprobation of the course of Edward P. East, and to annex, as he did, a further condition that the estate given should not vest absolutely except in the event of his death leaving a legitimate child or children.

In opposition to these views, which speak out in the circumstances which surrounded the testator, and which assert themselves unmistakably in almost every feature of the will, it is insisted that the word “and” where it occurs as aforesaid, must be taken in its natural grammatical sense; that Edward P. East having jaaid the debt due the testator, the estate vested in him, and that the other two conditions must concur to divest the estate so previously vested.

Counsel for the plaintiff in error are unquestionably right in quoting from Gray v. Pearson, 6 H. L. Cas., 105, the rule as follows: “In construing wills and all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or • some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.” This is the rule which we have adhered to in the construction above given. What could be more absurd, looking to the whole will, or what more incongruous than to give to the words in question the construction contended for? Or what could stand more flatly opposed to the manifest testatorial intent?

The counsel for the plaintiff in error quote the remark of Lord Alvanly in Harrison v. Foreman, 5 Vesy, 209, which is: “ When there are clear words of gift creating a vested interest, the court will never permit the absolute gift to be defeated, unless it be perfectly dear that the very case has happened in which it is declared that the interest shall not arise.” This quotation exposes the vice which lies at the very root of the whole contention, and is but the bare assumption that on the payment of the debt due the testator the estate devised vested absolutely in Edward P. East; or, in other words, that it vested and could not be divested except upon the concurrence in the breach of the other two conditions—a conclusion that can only be reached by utterly ignoring not only the express terms in which the conditions are annexed to the gift, but by disregarding also the whole context. Many other authorities to the same effect, are referred to, but they either do not apply to the case in hand or are not at variance with the rule laid down in Gray v. Pearson, supra, a rule universally admitted, and the rule which has been our guide in the present case.

After referring to a large number of authorities, the contention for the plaintiff in error culminates in the citation of Brewer v. Opie, 1 Call, 212, which it is claimed makes the insistence so plain that its discussion is rendered superfluous in Virginia. The case of Brewer v. Opie makes nothing plain except that the construction we have given in this case is warranted by the circumstances. That case only decides the simple proposition stated in 1 Jarman, 506, and which has been long settled, that a devise of real estate to A and his heirs, or, which would be the- same in effect, to A indefinitely, and in case of his death under twenty-one, or without issue, over, the word “or” is construed “and,” and coiisequently, the estate does not go over to the ulterior devisee, unless both the specified events happen. And Mr. Jarman states the sum of the reasons for the rule to be that the change of “or” into “and” in such case substitutes a reasonable for a most unreasonable scheme of disposition. But this in no wise upholds the plaintiff’s contention, the rule being, as already stated, that “or” will be changed into “and,” and “and” into “or” as will best comport with the testator’s intention, when that can be collected from the context. The contention for the plaintiff in error amounts in effect to the assertion of the proposition that the rule above stated lends no aid to a construction favorable to a limitation over, yet the case of Janney v. Sprigg, 7 Gill. (Md.) is confidently relied on. The same contention was made in that case, a very leading one, but in delivering the opinion in that case, Dorsey, O. J., said: “Unanimous decisions have been adduced to show that when a testator has devised property in fee with a limitation over, in case of the death • of the first devisee ‘ under twenty-one or without issue,’ or of his dying ‘under twenty-one, unmarried or without issue,’ the word ‘or’ is to be interpreted as if it were ‘and.’ The principle thus asserted is now so well established, that it is unnecessary to enumerate the cases on which it depends, or in that respect to make any comment upon them. . The conversion of ‘ or ’ into ‘ and,’ or of ‘and’ into ‘or,’ say the appellant’s counsel, is never to be made in the construction of last wills and testaments, unless it be for the benefit of the first devisee or his issue,» and is not to be allowed in any ease for the benefit of the ulterior devisee. For this broadly asserted proposition, so materially qualifying or changing the general rule, heretofore so universally recognized upon the subject, ño decision of any court, or even dictum of a judge, has been produced.”

There is nothing to be found in this case to aid the claim of the plaintiff in error, but on the contrary, it is a strong case against him; and in it many cases are cited fully sustaining the view we take in the present case. The case here turns upon the propriety of changing “ and” into “or.” The necessity of making the change is rendered apparent by the intention of the testator as collected from the whole will, and we unhesitatingly make the change. 2sTot to do so would be in effect, to permit the whole scheme of disposition to be defeated, and this in behalf of a stranger, one of whom the testator knew but little and cared less, and one who is alien to every sentiment expressed in the null or in the evidence.

The judgment of the circuit court is eminently correct and must be affirmed.

Judgment affirmed.