Den ex dem. Abrahams v. English

The opinion of the Court, was delivered by Hornblower, C. J. The word “or” in the will and in the codicil of David English, must be understood to mean “and,” in order to carry out the intention the testator. He certainly did not mean, that if his grandson, the primary object of his bounty, died before he was 21 years of age, leaving lawful issue, the devise over should take effect. If the testator used the word ‘or*intelligently,then he intended that if his grandson died before lie attained the age of 21, though he had lawful issue, then he should take only a life estate; or if he lived to be 21, and died at last without such issue,'then the devise over should take effect. But this could not have been his meaning. The devise in the will is plainly to David Combs in fee ; then follows the devise over, “if my grand-son happens to die before he arrives at the age of 21 years, or (happens not) “to leave heirs of his body lawfully begotten,” then to his gra,n&-daughtcr Elizabeth Hendricks and her heirs forever. Thus shewing an intention, in the first place to give the property to his grandson in fee; and secondly in the event of his dying under age, and without issue, then to his grand-daughter, in fee. By the codicil, the testator annexes a similar limitation to this latter devise, and provides, that in case the property comes to his grand-daughter, and she should die under age, or without lawful issue (undoubtedly meaning as before, and without lawful issue) to David English son of David English, late of Englishtown, deceased, and David English, son of Jonathan English, deceased, their heirs and assigns forever. [289] The devise to David Combs, then, could not fail, unless he not only died without lawful issue, but also under the age of 21 years. Both events did not happen. He lived until lie was 21 years of age. lie took then, upon the authority of Den v. Taylor, 2 South. 413, and the cases there cited, not an estate tail, but a fee simple, with a limitation.over to Elizabeth Hendricks, by way of executory devise. But as the event upon which the devise over, was to take effect, never did happen, and never could, after the devisee attained the age of 21 years, the estate, then became absolute in him. If therefore, the lessor of .the plaintiff has title to any portion of the promises in question, it must be under the will of David Combs. He devised all bis estate, real and personal, to his father Joseph Combs, for the term of his natural life, and then over, in the following words, viz : “after the decease of my father, it is my will that the whole of my estate, real and personal be equally divided among the children of Dr. James English, them, their heirs and assigns forever.” Dr. J. English, at the date of D. Combs’ will, had several children, who arc named in the case; among the rest, one, named James English 2d. This son was living when D. Combs died, but died during the life time of Joseph Combs the tenant for life, leaving one child, who died an infant, prior to the acquisition of the title set up by the lessor of the plaintiff. Upon the death of James English 2d, (which happened on the 7th of May, 1834) his executor sold, under a decree in chancery for the better execution of his will, all his title and interest in the premises in question, as a part of his real estate. The lessor of the plaintiff became the purchaser a,t that sale, and hence claims title to some portion of the premises in .question. Whether Jas. E. 2d, had any interest in the premises, depends upon the question whether the remainder, under the will of David Combs, was a vested or contingent remainder. If contingent only, the lessor of the plaintiff, acquired nothing by his purchase: but if the remainder was a vested one, then he has title to the share of Jas. E. 2d. Upon this point, there is in my opinion, no room to doubt. The remainder vested immediately upon the death of the testator, in ■the children of James English the 1st, who were then living an/J [290] opened as occasion required, to take in such as tv ere born after-wards and previous to the death of the tenant for life. In Doe v. Provoost et al. 4 Johns. 61, the case was much stronger in favour of contingencies; and yet Yan Ness, Kent, Thompson and Yates, Justices, against Spencer, Justice, held it to be a vested remainder. In that case, the words, were ^Immediately after her death, I give the same unto and among all and every such child and children,as the said Christiana shall have lawfully begotten at the time of her death, in fee simple, to be equally divided, &c.” The words npon which the dissent of Spencer, Justice, was based, (and I am inclined to think with good reason,) were, “shall have lawfully begotten, at the time of her death.” Thus pointing to a class of persons, who might be in existence upon the happening of a certain event. — It was not given to Christiana’s children; but to such child or children as should have been begotten by her at the time of her death. It was equivalent (perhaps) to saying, “to such child or children as she might have living at the time of her death. The time of her death, seems to have been named as the period, wdien the persons, who were to take, should be ascertained; for the testator could not have intended, by the use of these words, any thing so absurd, as to exclude children begotten by her, after her death. But in this case, there are no words creating any such doubt, or susceptible of any such criticism. They are, “and after the decease of my father, to be equally divided among the children of Dr. James English, &c.” This is equivalent .to saying, “I give the land to my father and to the children of Dr. James E.; my father to have it during his life, and after his death, to be divided among the children of Dr. J. English. The cases cited by the plaintiff’s counsel, I think fully sustain him ; at least such of them as I have examined. While those cited on the part of the defendants, although they may be good law, have no application, in my opinion, to case under consideration. Ford, J., and White, J. concurred. Daxton, J. and Nevitjs, J. gave no opinion, having been of counsel in the cause. Judgment for Plaintiff.