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Van Vechten and wife v. Pearson and others
The Chancellor. If the word or, in the danse of the will which limits a contingent remainder in fee to the two sons of the testator, is to be construed in its ordinary sense, disjunctively, it would give to them the ultimate remainder in the trust estate upon the death of Mrs. Pearson without leaving any children living at that time, although the deceased children should have issue then living.
But it would undoubtedly be doing violence to the intention of the testator to suppose he meant to exclude the issue of Mrs. Pearson’s children, although the children themselves might all have died in the lifetime of their mother. The testator divided his estate into three equal portions, for his three children, and de 514 vised to each of the sons one third in fee.
And although-he’ veste^ other third in the trustees, for the benefit of his daughter and her children, free from the control of her husband, there was no reason why the issue of Mrs. Pearson should be excluded from the inheritance after her death, although her immediate descendants might all happen to die in her lifetime.
In giving a construction to a will it frequently happens that a word which has been erroneously used by the testator is taken by the court in the sense in which he meant to usé it, as his intent can be ascertained from the situation of his family or estate, when taken in connection with other parts of the will. And the word or in wills is constantly construed to mean and, where its use in a disjunctive sense would produce an effect which could not probably have been intended by the testator. (16 East’s Rep. 69.
Ram’s Law of Wills, 55.) The last clause of the devise of the trust property must, in this case, to carry into effect the evident intent of the testator, be sd construed as to give the remainder to his two sons only in the event of Mrs. Pearson’s dying without leaving any child or children, and of the death of her children without lawful issue.
They are, therefore, to take the ultimate remainder in the trust property only upon the-happening of the contingency of the total failure of the issue-of Mrs. Pearson and her children. And according to the decision of the court for the correction of errors,- in the recent case of Paterson v. Ellis and others, (11 Wendell, 259,) the failure of issue of the children must be construed to mean an- indefinite failure, as well in regard to the personal property devised to the trustees as to the real estate.
The limitation over to the sons is therefore void, as being too remote. Georgiana, the only child of Mrs. Pearson who was living at the death of the testator, took a vested remainder in fee in the trust property, subject to open and let in after-born children. And upon the birth of Anna, she took a vested remainder in one half of that which had previously vested in her sister, but subject also to open and let in others who might thereafter be born.
By the death of Anna, xvithout issue, her sister became vested with all her interest in the real estate, as her only heir at law under the statute of descents then in. 515 force. (1 R. L. of 1813, p. 53.) And if there were no broth<ers or sisters of the half blood, Anna’s interest in the personal ■property of the testator is to be distributed to her mother and lier sister Georgiana in equal proportions.
So that the mother is now entitled to the whole beneficial interest in one half of the personal property devised in trust, (1 R. L. 314, § 16; 2 R. S. 96, § 75, sub. 6;) subject only to the contingency of her having other children who may come in for a share of the remainder which was vested in her deceased daughter Anna. Decree accordingly.