Watkins v. Sears

Dorsey, J., delivered the opinion of this court. By the devise on which the questions before us arise, the testator gives the land in dispute, “to his son, Dennis D. Pears, his heirs and assigns forever, provided he shall attain the age of twenty-one years, or die, leaving issue; but in case my son Dennis shall die without issue, or before he arrives at twenty-one years of age, 1 then give and devise the said northern half of my farm to my two daughters, Lucretia and Eliza, to be equally divided between them, so long as they remain unmarried; but whenever either, or both of my said daughters, shall die or marry, I give and devise the portion or portions, of the daughter or daughters, so dying or marrying, to my son Charles, his heirs and assigns, forever, ’J [496] It is wholly unnecessary, in this case, to enquire, or to examine the authorities referred to, whether the first part of the devise to Dennis, was á condition precedent, or a condition subsequent; as, by his arrival at the age of twenty-one years, the property devised to him became a vested estate. That the word, “or,” in the succeeding part of the devise, prescribing the condition, on which the limitation over to the daughters, Was to take effect, is to be construed copulatively, as if it were, “and;” and that, thereby, the alternative condition, (literally construing the Will,) of indefinite failure of issue, upon which the limitation over is made to depend, became a condition of definite failure of issue, We regard as too clear for argument, upon the following authorities: Pells vs. Brown, Cro. Jac., 590. Belles vs. Gillespie, 5 Randolph's Reps., 273. Broaders and wife vs. Turner, Ib., 308. Arnold and another vs. Buffum, 2 Mason, 208. Doe vs. Taylor, 2 Southard, 413. Fairfield vs. Morgan, 5 Bos. & Pul., 38. Lessee of Day vs. Day, 16 East., 67. Frammingham vs. Brand, 1 Wilson, 140. Lessee of Hauer vs. Shutz, 2 Binm. 532. Raborg vs. Hammond, 2 Harr. & Gill, 53; and Dallam vs. Dallam, 7 Harr. & Johns., 220. That, in this State, a limitation over of land to a devisee, for life, after an indefinite failure of issue, does not, as has been contended’in the argument of this case, convert the indefinite into a definite failure of issue, we think fully established by the cases of Newton vs. Griffith, 1 Harr. & Gill, 111; and Hoxton vs. Archer, 3 Gill & Johns., 199. But suppose, as has been urged in the argument for the appellees, the word, “or,” above mentioned, is to be construed disjunctively; and that the limitation over, after a dying without issue, means an indefinite failure of issue; how does that better their condition? By such a construction, the fee-simple estate given to Dennis, in the first part of the devise, is converted into an estate tail, and the limitations over operate by way of remainder, not by way of executory devise: and the act of descent of this State, would convert the estate tail, into an estate in fee; whereby the limitation over to Charles and his heirs, becomes wholly inoperative and void. The appel [497] lants, therefore, are clearly entitled to the relief sought by their bill. This court will sign a decree, reversing the decree of the Chancery court, and remanding the case to the Court of chancery, that such further proceedings may be had therein, as the nature of the case may require. DECREE REVERSED AND CAUSE REMANDED.