ity, however, seems to be that where a legacy or devise is to one "or his heirs, issue," or the like, whatever the form of expression may be, the will containing no provisions showing a different intent, the word "or" will be construed to mean "and"; and a testamentary gift to "A or his heirs" will lapse if A die before the testator.21 § 776. The Same Subject: Construing "and" as "or," and "or" as "and.” When the testamentary intent is clear and unequivocal, the courts go so far, in order to give effect to such intent, as to convert the word "and" into "or," and construe words of limitation as words of purchase, or words of purchase as words of limitation.22 It is a rule of construction that, if possible, effect be given to every word, but if the conversion of "and" into "or" would cause only one part of the sentence to become inoperative instead of the other, the change should not be sanctioned. It is allowable only when absolutely necessary to support the evident intent of the testator.23 21 Horridge v. Ferguson, Jac. who shall survive him, unless the 583; Harris v. Davis, 1 Coll. 416; Shand v. Kidd, 19 Beav. 310; Adshead V. Willetts, 29 Beav. 358; Wright V. Wright, 1 Ves. Sen. 409; Turner v. Moor, 6 Ves. Jun. 557; Richardson V. Spraag, 1 P. Wms. 434; Eccard v. Brooke, 2 Cox's C. C. 213; Montague v. Nucella, 1 Russ. 165; In re Philips' Will, L. R. 7 Eq. 151; Parkin v. Knight, 15 Sim. 83; O'Brien v. Heeney, 2 Edw. Ch. (N. Y.) 242. "A testator is never supposed to mean to give to any but those intention is perfectly clear."Corbyn v. French, 4 Ves. Jun. 418, 435. 22 Taggart v. Murray, 53 N. Y. 233; In re Wells, 113 N. Y. 396, 10 Am. St. Rep. 457, 21 N. E. 137. See, also, In re Gilmor's Estate, 154 Pa. St. 523, 35 Am. St. Rep. 855, 26 Atl. 614. 23 Farnsworth v. Whiting, 102 Me. 296, 66 Atl. 831; In re Gilmor's Estate, 154 Pa. St. 523, 35 Am. St. Rep. 855, 26 Atl. 614. In Morgan v. Thomas, L. R. 9 The simplest form is a testamentary gift to "A and his heirs," or to "A or his heirs." In such cases, as we have seen, the words referred to are generally treated as words of limitation. The situation may be different where certain contingencies are mentioned, as a devise to "A and the heirs of his body if he should attain the age of twenty-one years or have issue, but if A should die before the age of twenty-one and without issue, then to B." Where A attained the age of twenty-one years but died without issue, it was held that B was entitled to the devise.24 In those cases where it has been sanctioned, it was only for the purpose of allowing the legacy or devise to vest, not to defeat it.25 But subsequently it was held that "and" should not be construed as "or,"26 and Q. B. Div. 643, 645, Sir George Jes- In Griffith's Lessee v. Woodward, 1 Yeates (Pa.) 316, 318, it was said: "Courts of justice will transpose the clauses of a will and construe 'or' to be 'and' and 'and' to be 'or' only in such cases when it is absolutely necessary so to do, to support the evident meaning of the testator. But they can not arbitrarily expunge or alter words without such apparent necessity." 24 Brownsword v. Edwards, 2 Ves. Sen. 243; Doe d. Usher v. Jessep, 12 East 288; Woodward v. Glassbrook, 2 Vern. 388. Contra: Grey v. Pearson, 6 H. L. Cas. 61. 25 Day v. Day, Kay 703, 708; Maddison v. Chapman, 3 De Gex & J. 536; Hetherington v. Oakman, 2 You. & C. C. 299; Maynard v. Wright, 26 Beav. 285; Maberly v. Strode, 3 Ves. Jun. 450; Bell v. Phyn, 7 Ves. Jun. 453, 459. 26 Grey v. Pearson, 6 H. L. Cas. 61. See, also, Doe v. Watson, 8 How. (U. S.) 263, 12 L. Ed. 1072; Butterfield v. Haskins, 33 Me. 393;. Carpenter v. Boulden, 48 Md. 122; Chrystie v. Phyfe, 19 N. Y. 344. A gift over after a life-estate to S. G. and A. K., "and their heirs and representatives," was held the earlier cases were considered as having been overruled.27 The word "or" has been construed to mean "and" where necessary to carry out the apparent intention of the testator. Thus if a gift be made to A with a limitation over upon two contingencies, such as if A should die under the age of twenty-one or unmarried, it has been held that the testator contemplated an absolute gift to A except upon the happening of both contingencies, and therefore "or" has been converted into "and." It is supposed the testator had in mind an absolute gift if the beneficiary reached his majority, or to benefit his issue should he have any.28 But to the contrary, where the devise was to A and J in tail, with the proviso that if A and J died "under age" or without having lawful issue, then over to B, although A died under age and without issue and J died without issue but after having become of age, it was held that "or" should not be construed as "and." That while the testator might have intended by the limitation over to give a benefit to the issue, should there be any, of the beneficiaries should they die under age, yet converting "or" into "and" would be not to be substitutional.—Appleton v. Rowley, L. R. 8 Eq. 139, 145. The condition annexed to a devise was: "If both my grandchildren shall happen to die under age and without any lawful issue, then it is my will," etc. The death of the grandchildren, without issue but after becoming of age, did not make the devise over effective.— Doe v. Watson, 8 How. (U. S.) 263, 12 L. Ed. 1072. 27 Secombe v. Edwards, 28 Beav. 440; Dillon v. Harris, 4 Bligh (N. S.) 324, 329. 28 Grant v. Dyer, 2 Dow 73, 87; Grimshawe v. Pickup, 9 Sim. 591; Long v. Dennis, 4 Burr. 2052; Kindig v. Smith, 39 Ill. 300; Sayward v. Sayward, 7 Me. 210, 22 Am. Dec. 191; Watkins v. Sears, 3 Gill (Md.) 492; Hunt v. Hunt, 11 Metc. (52 Mass.) 88; Anderson v. Jackson, 16 Johns. (N. Y.) 382; Broaddus v. Turner, 5 Rand. (Va.) 30S. contrary to the expressed intention of the testator that B should take the remainder upon certain contingencies.29 § 777. To Whom the Benefit of Lapsed Legacies and Devises Accrues. At common law, a distinction was recognized between a lapsed bequest of personal property and a lapsed devise of real estate, the former going to the residuary legatee, if there were one, or to the next of kin, while the latter descended to the heir of the testator.30 The reason given for the distinction was that a bequest of personal property operated on all such of the testator's property owned by him at the time of his death, but that a devise operated only upon land of which he was seised when he made his will.31 But the reason for this distinction no longer exists under the modern statutes enabling a testator to devise realty of which he was not seised at the time of making the will,32 and the effect of this legislation has been by implication to place lapsed devises of real estate and lapsed bequests of personal estate on precisely the same footing.33 Accordingly, the modern 29 Mortimer v. Hartley, 6 Exch. 47. See, also, Hawksworth V. Hawksworth, 27 Beav. 1; Cooke v. Morihouse, 34 Beav. 27; Kelley v. Kelley, 182 Pa. St. 131, 37 Atl. 830. 304 Kent Com. *541; Greene v. Dennis, 6 Conn. 293, 16 Am. Dec. 58; Gore v. Stevens, 1 Dana (31 Ky.) 201, 25 Am. Dec. 141; Stonestreet v. Doyle, 75 Va. 356, 367, 40 Am. Rep. 731. 31 Jones v. Mitchell, 1 Sim. & St. 290; West v. West, 89 Ind. 529, 532; Prescott v. Prescott, 7 Metc. (48 Mass.) 141, 146; Stone street v. Doyle, 75 Va. 356, 367, 40 Am. Rep. 731. See §§ 26-29, 228-230. 32 Decker v. Decker, 121 Ill. 341, 12 N. E. 750; West v. West, 89 Ind. 529, 533. See $$ 30, 230-236. 33 Galloway v. Darby, 105 Ark. 558, Ann. Cas. 1914D, 712, 44 L. R. A. (N. S) 782, 151 S. W. 1014; Holbrook v. McCleary, 79 Ind. 167; West v. West, 89 Ind. 529, 533; Blaney v. Blaney, 1 Cush. (55 Mass.) 107; Prescott v. Prescott, 7 Metc. (48 Mass.) 141, 146; Albany Hospital v. Albany Guar rule may be stated to be that where there is a residuary clause, unqualified and absolutely general in its terms,3* not only lapsed bequests of personalty, but lapsed devises of realty also,35 will sink into the residue, and neither the next of kin nor the heir at law will take any interest therein, unless there be expressions in the will manifesting a contrary intention.36 Such an intention is not to be inferred from the failure of the testator to provide for the contingency which occasioned the lapse.37 But a provision precluding the residuary devisee from disposing of property willed to the testator's children is dian Soc., 131 N. Y. Supp. 1017. See, also, In re Russell, 150 Cal. 604, 89 Pac. 345; Lamb v. Lamb, 131 N. Y. 227, 30 N. E. 133; Duckworth v. Jordan, 138 N. C. 520, 51 S. E. 109; Kent v. Kent, 106 Va. 199, 55 S. E. 564. Compare: Mann v. Hyde, 71 Mich. 278, 39 N. W. 78. 34 Burnside's Succession, 35 La. Ann. 708; In re Benson, 96 N. Y. 499, 48 Am. Rep. 646. Matter of Whiting, 33 Misc. Rep. 274, 68 N. Y. Supp. 733; Duckworth v. Jordan, 138 N. C. 520, 51 S. E. 109; Woodward v. Congdon, 34 R. I. 316, Ann. Cas. 1914C, 809, 83 Atl. 433; Bradford v. Leake, 124 Tenn. 312, Ann. Cas. 1912D, 1040, 137 S. W. 96. Where personal property lapses and is to be distributed among the next of kin, the widow will take a portion thereof, notwithstanding a provision made for her by the will as in lieu of dower.-Dildine v. Dildine, 32 N. J. Eq. 78. Where a legacy lapses, the proportional share of the surplus personalty that would have fallen to the legatee had he survived goes with the legacy to the residuary legatee. In re Harland's Estate, 13 Phila. (Pa.) 229. 35 Burton v. Newbery, L. R. 1 Ch. Div. 234; Ballance v. Lanphier, L. R. 42 Ch. Div. 63; Green v. Dunn, 20 Beav. 6; Hinckley's Estate, Myrick's Prob. (Cal.) 189; Decker v. Decker, 121 Ill. 341, 12 N. E. 750; Dorsey v. Dodson, 203 Ill. 32, 67 N. E. 395; Hogan's Heirs v. Hogan's Exr., 3 Dana (33 Ky.) 572; Stetson v. Eastman, 84 Me. 366, 24 Atl. 868; Barnum v. Barnum, 42 Md. 251; Lovering v. Lovering, 129 Mass. 97; Dresel v. King, 198 Mass. 546, 126 Am. St. Rep. 459, 85 N. E. 77; Givens v. (N. Y.) 10. Ott, 222 Mo. 395, 121 S. W. 23; 36 In re L'Hommedieu, 32 Hun (N. Y.) 10; Wetmore v. Peck, 66 How. Pr. (N. Y.) 54. 37 In re L'Hommedieu, 32 Hun |