Kindig v. Deardorff

Hr. Justice Lawbence delivered the opinion of the Court: This was a petition originally filed in the County Court by the appellee as administrator of William Henry Smith against the appellants, as executors of Kindig, to compel them to pay over a certain sum of money which the appellee claimed was due to the estate of Smith under the will of Kindig. The County Court made an order, and on an appeal to the Circuit Court it was affirmed. The executors of Kindig now bring the record here. The case turns upon the construction to be given to the will of Kindig, which, after a bequest to his widow, and directing the payment of his debts, proceeds as follows: “ Hy will is, that after the sale of all my estate, real and personal, and the money is collected from the same, that the expenses of administration, and all legal expenses to be paid, and the balance be equally divided among my children and my two "grandchildren, namely, William Henry Smith, and William Robert Wilson, each to share equally in the distribution and entitled to the same share as either of their mothers would have been entitled to if living. The money falling to the above named grandchildren shall be, by my executors, loaned out, with good security, and on such interest as is usual to loan money upon, until they shall, respectively, become of the age of twenty-one years, and when either one shall arrive at the age of twenty-one years he shall be entitled to receive his share with the interest, and in the same way with the other. Should one or both die before they shall arrive at the age of twenty-one, or either die without heirs, his or their share shall be equally divided with my children and the surviving one of the two grandchildren, if any.” It is admitted that William Henry Smith died without issue, unmarried, and between twenty-one and twenty-two years of age. The question is, whether his personal representatives are entitled to the legacy, or whether, under the last clause of the will, it goes to the persons named therein. The rule has been long and very firmly settled, that where either real or personal estate is devised, with a condition that in case the devisee shall die before the age of twenty-one, or without issue, then the estate shall go to an ulterior devisee, the word “ or ” is to be construed as the word “ and,” so as to require both conditions to concur in order to make the estate go over. The rule is thus expressed by Jarman, on page 443 of his first volume: “ It has been long settled that a devise of real estate to A and his heirs, and in case of his death under twenty-one or without issue, over, the word ‘ or ’ is to be construed landf and consequently the estate is not to go over to the ulterior devisee unless both the specified events happen.” After stating that the rule is founded on the fact that it substitutes a reasonable for a most unreasonable scheme of disposition, the author adds that “ the rule is equally applicable to bequests of personalty; and therefore, in the case of a legacy to A, and in case of his death under age, or without issue, to B, it is not to be doubted that A would retain the legacy unless he died under age and without leaving issue at his decease.” The numerous cases in the English courts in which this rule has been applied are cited by Jarman, and it is not necessary to quote them here. The same question arose in Jackson v. Blanshan, 6 Johns. 55. Chief Justice Kent, in giving the opinion of the court, review's the English cases and says that the controversy on the construction of these words in a will, which had been made the subject of contention for two centuries and a half in Westminster Hall, must now be considered as forever closed. He adds, “it is important, when a question of this kind has become once settled (and it is almost immaterial which way), that it shall not be disturbed, for it grows into a landmark of property.” Although this rule seems at first blush to require a departure from the natural meaning of the language used, jmt in most cases its application accomplishes the real intent of the testator. If there is any thing in other portions of a will indicating that the maker really intended to use the word “ or ” in its strict disjunctive sense, courts ought not to apply this canon of interpretation. The intent of the testator is, after all, the controlling principle, and it is only because courts have supposed by this rule they best accomplished that intent, that the rule has been adopted. In the case before us, for example, it can hardly be supposed that a testator, in providing for all his children and grandchildren, would have allowed his bounty to be controlled by so frivolous and capricious a consideration as whether the issue of his legatee were born before or after the legatee attained his majority. Yet, unless we read “and” in place of “ or,” if William Henry Smith had married and died before attaining the age of twenty-one, leaving children, such children would not have taken under the will, though the same children would have taken had their father survived until he became of age and then died. Such a discrimination would be so unreasonable that we cannot suppose it was the intent of the testator to make if. Besides, why should he have directed the legacy to be paid over to Smith on his attaining his majority unless he intended that it should become, at that time, absolutely his? If he had intended it should not vest until the birth of children, would he not have directed that it should not be paid until the happening of such contingency ? If it was not intended to become the absolute property of the legatee on his arriving at full age, then only the accruing interest should have been paid over to Smith after that time, and the principal kept until the birth of issue, where it could be reached by the ulterior legatee. And if the testator had not intended the legacy to vest absolutely on Smith’s attaining his majority, he certainly would not have directed it to be paid without security, and thereby placed in jeopardy. In order to make the different provisions of the wfill consistent with each other, and to avoid a construction which would impute to the testator a very unreasonable and therefore improbable intent, we must hold that the title to the legacy became absolute in William Henry Smith on his attaining his majority, and should now be paid over to his administrator. Decree affirmed.