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 further 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. v. Brand, 23. A woman devised a house to her son Robert, his Framlingham heirs and assigns for ever; and in case he should hap- 3.390. pen 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 qualifications of his Brownsword being unmarried, and without issue at his death; and Infra, c. 20. v. Edwards, Fairfield v. consequently the estate vested absolutely in Robert, his coming of age. upon 24. A person devised to his brother Benjamin 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. On a writ of error to the House of Lords it was contended on behalf of the plaintiff in error that the construction adopted in Ireland was so much against the language of the will, as to be the direct contrary to that which the will peremptorily directed. According to the words, the devise over was to operate on the happening of either of two events; either in the event of Benjamin's dying under 21, or dying without leaving issue. But according to the construction in Ireland, the words of contingency were made to be,-In case my said brother shall die before he attains 21, and without issue. The testator's disjunctive or was struck out of the will, and instead of it, the conjunctive and was inserted. The testator's two contingencies were consolidated into one contingency; and so the testator was made to speak the very reverse of that, which he had really spoken. On behalf of the defendant in error, it was said, that the general intent of the testator, as far as it could be collected from the whole will, must prevail, even 8 Term, R. 5. against any particular clause; which if taken separately might have, or seem to have, a contrary tendency. Now in this case the general intent of the testator ap- Doe v. Halley, peared with sufficient clearness to have been, to prefer his brother Benjamin and his issue, before his mother; and that the mother was not to take, to the exclusion of the children of Benjamin. This intent, then, ought to be carried into effect, and it could not be carried into effect, without construing the word or in a conjunctive sense; since otherwise Benjamin might have died under age, leaving children, and by reason of his dying under age, the children would have been excluded. To give the word or a conjunctive sense when the context and intent of the whole instrument required it, was neither a strained nor a novel construction. There was perhaps no word in the language of more equivocal effect than the word or. By a slight variation of the phrase, in almost any case, it might be made to have either a conjunctive or disjunctive operation. A devise over if A. shall die before his attaining his full age, or day of marriage, did not take effect by strict grammar, if A. either came to age or married; but change the expression to,-If A. shall die before attaining his full age, or (before attaining his) day of marriage; then in strict grammar the devise over takes effect, unless both happen. Yet the words between the parenthesis, which were used in the latter mode of expression, must be understood in the former, in order to make sense of the passage. The consequence was that courts had at all times paid little attention to a word, the effect of which depended on distinctions so small and subtle; and had construed the sentence in that way which seemed most conformable to sense, without much attention to the conjunctive or disjunctive meaning of the particle used. This had been done even in acts of parliament. In wills it was grown into a settled rule of construction, that where there was a devise of an inheritance to any person, and a devise over, de Denn v. 9 East, 366. pending on his age, or having issue, whether these two events were connected by a conjunctive or disjunctive particle; the estate of the first taker is absolute, if Doe v. Jessep, either of the events take place; and this for one plain reason, expressed or implied in all the cases, namely, that otherwise if the first taker should die under age, leaving issue, such issue would be disinherited. 12 East, 288. 16 East, 67. Particular estates sometimes transposed. Green v. Contradictory devises. Plowd. 451. 2 Atk, 374. The judgment was affirmed. 25. A particular estate will be transposed, and placed either before or after some other estate given by the will, if such transposition be necessary to fulfil the intent of the testator. 26. A person devised lands to his eldest son for life, remainder to the first and other sons of his said eldest son in tail; remainder to two trustees for their lives, upon trust to support the said remainders. The Court of Chancery held, that the will should be construed so as that the estate devised to the trustees should precede the contingent remainders. 27. Lord Coke says, where there are two different 1 Inst. 112. b. devises of the same thing, the last shall take place. Mr. Hargrave observes on this passage, that there is a great contrariety of opinion on this subject; that some hold with Lord Coke that the second devise revokes the first; others think that both devises are void, on account of the repugnancy; but the opinion supported by the greatest number of authorities is, that the two devisees shall take in moieties. It appears however to be now settled, that if two parts of a will are totally inconsistent, and cannot possibly be reconciled, the proper rule is that the latter shall prevail. Simms v. 5 Ves. 243. 6 102. A perpetuity cannot be ereated. 28. The general principles which have been stated in Title 32. c. 23. respecting perpetuities, have been as 1 Inst. 233. a. fully adopted in the construction of wills, as in that of Seaward v. Willock, 5 East. 198. Beard v. 5 Taunt. 392. 1 Turn, 25. deeds; so that it may be laid down that lands cannot be devised in such a manner as to render them unalienable for a longer period than a life or lives in being and twenty-one years and some months after. 29. It has been stated in a former Title that a con- Tit. 13. c. 1. dition of nonalicnation cannot, in a deed, be annexed § 22. to a grant in a fee simple. This rule is also generally admitted in the construction of wills. But it has been held in a modern case that a condition of nonalienation, Doe v. Pearson, except to sisters or their children, annexed to a devise to two women and their heirs, was good. 30. A condition of nonalienation annexed to an estate tail, is also void. 31. An estate was devised to John Harris, in such words that he was held to take an estate tail; with a proviso, that if the said John Harris or his issue should at any time thereafter alienate, mortgage, encumber, or otherwise commit any act or deed whatsoever, whereby to alter, change, or defeat the same bequests and limitations, or any of them therein before limited and appointed of the same premises, that then and in such case he, the said John Harris, and all and every such other person or persons so alienating, mortgaging, or otherwise encumbering, altering, changing, or defeating the same bequests, or any of them, should pay or cause to be paid, and he thereby charged the said premises with the payment of 2000l. unto such person or persons, and his and their heirs, who might, could, should, or ought next to take, by virtue or means of any of the bequests, devises, or limitations therein-before by him given, devised, or bequeathed. Lord Keeper Henley held this condition to be void. 6 East. 173. King v. Burchell, Eden, R. 424. Infra, c. 14. § 26. 32. It has been shown in a former title that shifting Tit. 16. c. 5. uses may be limited by will, as well as by deed; pro-it. 32. c. 23. vided a perpetuity be not thereby created; and the Tit. 36. c. 8. cases in which this doctrine has been established are there stated. 33. Although an omission will be supplied for the purpose of effectuating the intention of the testator; where such intention is consistent with the rules of law; yet if the intention be to create a perpetuity, the omission will not be supplied; but such a construction |