Nevison v. Taylor

James Taylor, in his last will and testament, bequeathed as follows:—“I give to my wife Ellen the use of my personal estate during her natural life;—after her decease, I give to my son James all the remaining part of my personal estate that is left undisposed of; and my will is, that if James should come to die before he arrives to the4 age of twenty-one years, or have lawful issue of his body," then the testator gave the personal estate to the children of his brother, George Taylor.

James, the testator’s son, lived till above the age of twenty-one, and then died without issue. The question is, whether the estate went over in this case to the children of George Taylor ? It is argued that it was to go.over to the nephews, according to the language of the will, if either of the contingent events therein mentioned came to pass; that is, if *57J ames the son died under age, or without issue; that both are not required to happen, in order to carry the estate over, because the testator uses the word or, which means, that it shall go over on the happening of either event. And this argument is good for conveying the estate to the nephews if we look only to the import of the word or ; but on looking at the whole of the will, as it is our duty to do, it is manifest that the testator did not intend that the estate should go over on the happening of either of those events. Suppose the son had died under age, but had left lawful issue, did the testator mean to disinherit his son’s issue in favor of his nephews ? A provision that the nephews shall take on condition that the son dies without issue, clearly imports that the nephews shall not take if he leaves issue. An unguarded word shall not defeat the plain intention of a testator. His intention manifestly was that both events should come to pass before the nephews should' take; or in other ivords, that his son James should die under age and without issue. The word or, may be construed to mean and, in order to effectuate the intent of a testator, and the cases are numerous to this effect. It was so done in this court, 2 South. 420, and was conformable to 2 Atk. 645; 1 P. Wms. 434; 3 Ter. 470, and many others.

Now on the son’s attaining the age of twenty-one, both these events could not by possibility happen; from that time the limitation over was defeated and the estate in James became absolute. At his death it went by the statute of distributions to his mother as next of kin; and on her death to her next of kin who are the Nevisons. Hence the decree of the Orphans’ Court so far as it reserves this property for the children of George Taylor, is erroneous.