Doe v.
Halley,

8 Term R. 5.

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 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 appeared 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 varia-
tion 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 distinctious 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 construc-
tion, that where there was a devise of an inheritance
to any person, and a devise over, depending 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 either of the
events takes 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.
The judgment was affirmed.

Den nv.
Kemeys,

9 East, 366.

Doe v.Jessep, 12 East, 288.

16 East, 67. Right v. Day,

Estates some

25. An estate will be transposed, if the intent of times transthe testator evidently requires it.

posed.

Green v.
Hayman,
2 Cha. Ca.10.

A person devised lands to his eldest son for life, remainder to the first and other sons of his said eldest Fearne Cont. son in tail; remainder to two trustees for their lives,

Rem. 495.

Contradict

ory Devises.

n. 1.

Plowd. 451.
Owen, 84.

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.

26. Lord Coke says, where there are two different 1 inst. 112 6. 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.

Sims v. Doughty,

5 Ves. 243. 6 Ves. 102.

A Perpetuity cannot be created by Will.

Seaward,
v. Willock,

5 East, 198.

Doe v. Pear

27. It appears to be 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.

28. The general principles which have been stated in title 92. c. 23. respecting perpetuities, are as fully. adopted in the construction of wills, as in that of deeds. It may therefore 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 nine months after.

29. It was held in a modern case, that a condition son, 6 East, against alienation, except to sisters or their children, annexed to a devise to two and their heirs, was good.

173.

Nicolls v.
Sheffield,

30. A proviso in a will by which an estate was de2 Bro. R.215. vised in strict settlement, that in case the devisee should come into possession of the family estate, the trustees should stand seised of the devised estate to

Doe v.

Heneage,

4 Term R.

Tit. 32. c. 23.

the use of the next person in remainder, was held
valid by Lord Kenyon, (then M. R.) who said there
was no doubt with respect to the validity of the pro-
viso: several estates were held under similar limita-
tions; no rule of law was contradicted by it. And 29.
if no recovery was suffered, it might take place at
any distance of time.-He might as well be told that
an estate tail was an illegal estate, because it might
enure for ever.

31. 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 will be adopted, as will carry the general intention into effect.

Tit. 36. c. 8.

v. Browne,

Ca. 269.

vol. 2.417.

32. Joshua Browne devised lands to his nephew Chapman William Browne, the son of his brother Reginald, for 3 Burr. 1626. and during the term of his natural life, and from and 3 Bro. Parl. after the death of the said W. Browne; then to the Cases and first son of the body of the said W. Browne, and the Opinions, heirs male of the body of such first son; and for want of such issue, then to the second, third, fourth, and every other son and sons of the said W. Browne, according to their seniority; and to the heirs male of the body of such second, &c. and other sons of the said W. Browne; and for want of such issue, to the second son of his brother Reginald, for and during the term of his natural life, and from and after the death of the said second son of his brother Reginald, then to the first son of the body of such second son of his brother Reginald, and to the heirs male of the body of such second son; and for default of such issue, to the third, fourth, fifth, and every other younger son or sons of the said second son of his

brother Reginald Browne, according to their seniority, and to the heirs male of the bodies of the said third, fourth, fifth, and other sons of the said second son of Reginald; with remainder to the eldest or next son or sons of Reginald for life; and after his or their deaths, to the heirs male of their bodies.

Reginald Browne had no son but William, at the time of the testator's death, but afterwards had a second son named Thomas; William Browne died without issue male; and the question was, what estate Thomas Browne took under the will.

The Court of King's Bench was of opinion, that Thomas Browne took an estate tail. A writ of error was brought in the House of Lords; and the fol lowing question was put to the Judges:-" Whether Thomas, the second son of Reginald Browne, took any and what estate, under the will of Joshua Browne." Whereupon the Lord Ch. B. delivered their unanimous opinion-" That Thomas the second son of Reginald Browne took an estate tail under the will of Joshua Browne." Whereupon the judgment of the Court of King's Bench was affirmed.

33. It is perfectly clear that in Joshua Browne's will a line was omitted by which the estate was limited to the first son of the second son of Reginald, and the heirs male of his body, with remainder to the second son of the second son of Reginald, and to the heirs male of the body of such second son. But if the omission had been supplied, the devise would have been void, being to an unborn person for life, with a remainder to his first and other sons in tail male; and therefore the Judges rejected the words containing the limitation to the first son of the body of the second son of Reginald, and applied the words,heirs male of the body of such second son, to the